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Marriage and the Reign of Judges

July 21st, 2010

by Matthew J. Franck

The latest decision from our judicial overlords on same-sex marriage spells trouble for republican constitutionalism and the institution of marriage.

The Defense of Marriage Act (DOMA) was grounded on a fear of judges run amok. This past Thursday, federal district court judge Joseph Tauro of Boston justified this fear when he struck down section 3 of the act in two separate cases, Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services (HHS). In the Gill case, Judge Tauro held that the law unjustly denied various federal benefits to spouses in same-sex marriages contracted under Massachusetts law, contrary to the equal protection principle. Meanwhile, in the HHS case, Tauro ruled that the state itself was the victim of an unconstitutional intrusion by the federal government on its reserved powers under the Tenth Amendment.

In both cases the judge claimed to be basing his ruling on the “historically entrenched practice” of federal law recognizing marital status whenever it was accorded under state law. But we can hardly credit his attachment to “historically entrenched practice” when he is willing to treat the whole moral tradition of human civilization, with its exclusive recognition of marriage as a union of opposite sexes, as “irrational” and thus fit for the dustbin.

DOMA cannot be properly understood outside its historic context. Congress passed DOMA, a statute that is as simple as it is brief (consisting of barely more than 350 words), to prevent this judicial tyranny. DOMA did just two things: in section 2 it permitted states to deny recognition to any “relationship between persons of the same sex that is treated as a marriage under the laws” of another state; and in section 3 it defined “marriage” for purposes of all federal laws and regulations to be “only a legal union between one man and one woman as husband and wife.”

Neither section took any notice of which state institutions might be responsible for introducing the recognition of same-sex marriage. But the law as a whole was a response to the looming threat, by then already met and rebuffed in Hawaii, of judges imposing the agenda of same-sex marriage on the country, state by state. Indeed, in the event that democratic action caused same-sex marriage to become widely accepted, and recognized in the law in most of the states, one might expect DOMA to be repealed in its entirety. But that would be for Congress to do, following the actions of other elected legislatures at the state level. And in 1996, when DOMA was passed, no state legislature had seen fit to upend the entire meaning and history of marriage by fabricating the fraud of permitting persons of the same sex to “marry.” In the fourteen years since DOMA’s passage, only one legislature (New Hampshire’s) has acted to authorize such marriages entirely on its own, while another (Vermont’s) did so only after being pushed as far as same-sex ‘civil unions’ by its state’s judiciary. And in every state in which the question of permitting same-sex marriage has been put directly before the people, it has been rejected by popular majorities, in most cases acting in their sovereign capacity as constitutional lawgivers. The sine qua non of same-sex marriage in the United States has been the tyranny of the American judiciary, while republican constitutionalism has been fighting a rearguard action.

One of Judge Tauro’s defenders might say that since it has already been decided that same-sex marriages may take place in Massachusetts, the only question before Tauro’s court was whether the federal government could decline to treat same-sex couples as married when the state has so treated them. “The authority of the Commonwealth,” after all, has “recognized same-sex marriages among its residents,” he noted. But what “authority” worked this recognition in Massachusetts? Why, its judiciary, of course, which has infamously frustrated the operations of democracy at every turn.

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  1. Heidi
    July 21st, 2010 at 20:11 | #1

    Judge Tauro did exactly what judges are supposed to do in our constitutional republic. He upheld and protected the constitutional rights of the minority against the tyranny of the majority. In so doing, he followed a line of precedent that has protected religious freedom, ended racist segregation under the law, enforced and upheld women’s rights, and that has refused to allow the moral or religious beliefs of the majority to deprive individual citizens of a minority of civil and constitutional rights. The majority used to require children who were also Jehovah’s Witnesses to pledge their allegiance to the U.S. flag in school, even though it ran contrary to their religious beliefs. The Court properly protected their constitutional rights and ruled that such a requirement was unconstitutional–in spite of what the majority wanted. Brown v. Bd. of Ed. is another case in which the judiciary ruled against the will of the majority to defend the constitutional rights of a minority. Loving v. VA is yet another. And there are many, many other examples because our country’s history unfortunately includes a history of discrimination against certain classes by the majority. And in each instance, the Court overruled the majority in favor of individual rights. THAT is how our government is intended to function under our Constitution. If the majority was allowed to decide the constitutional rights of individuals, I shudder to think what the implications of such a system would be. Thankfully, our system was designed to protect the minority and the individual against the will of the majority!

    People need to go back to Civics 101. Yes, the majority and democracy have roles to play in our system. But our Constitution was written so as to protect the individual as well, particularly our 14th Amendment. When it comes to questions of individual constitutional rights, the judiciary trumps majority vote. ALWAYS. Go back to school and learn how our system of government works! The people elect their representatives, the elected representatives make or enforce the laws (legislature and executive), and the judiciary interprets and applies the laws to individuals. However, the judiciary, and the judiciary alone, has the final say with respect to constitutional rights. Ever since Marbury v. Madison and McCulloch v. Maryland, when the Supreme Court held that the United States Constitution was the supreme law of the land and that under our Constitution, the Supreme Court held the ultimate authority to interpret it, the issue has been clear that it is the role of the judiciary, not the people or their elected representatives, to decide issues of constitutional rights and constitutional interpretation.

  2. Leo
    July 22nd, 2010 at 10:57 | #2


    I would disagree that the Courts in Brown and Loving were out of step with public opinion in the majority of states. In any event, the Brown and Loving decisions are not on point because race is not synonymous with gender. The courts, for example, have not held that separate toilets based on gender are unconstitutional. The courts of the Brown and Loving era upheld the constitutionality of laws prohibiting sodomy. Even when those laws were later overturned, it was on the basis of privacy rights not the legal abolition of gender or the invention of a right to sodomy. Judicial rulings are generally expected to follow precedent, which distinguishes them from the political branches of the government.

    A few questions for discussion?

    If the Supreme Court overturns judge Tauro’s ruling, would you accept their ruling in the matter?

    If the Supreme Court banned abortion on constitutional grounds as a protection for a defenseless and powerless minority to secure the right of life, would you accept that decision?

    If a judge overturned progressive taxation as an unconstitutional inequality and found a flat tax was necessary to protect the minority wealthy from the theft of their income by the majority who are less affluent, would you support that ruling?

    In multi-judge panels, e.g. the Supreme Court, should the ruling of the majority of judges prevail?

    In California, the right of the people to amend the constitution is reserved to the people. Do you believe that governments derive their just powers from the consent of the governed?

    Are rights universal or are they just for the protection of minorities?

    Who gets to define what is a universal right?

  3. Paul
    July 22nd, 2010 at 11:33 | #3

    Oh, yes. Judges do interpret the law. But lest you forget, the people are the ones who can change the constitution (amendments) not the judges. The Supreme Court can interpret what a law means or declare it constitutional or not….but where is this “apply it to the people” thing coming from?

    I am a History and Political Science teacher and I do not seem to see that in my books.

    The Legislature makes the laws and applies it to the people.

    But I do agree with you that the Supreme Court is the ultimate authority to interpret the Constitution and that more people should take a Civics 101 course. Oh, and they should read a little bit and become educated before they vote as well.

    One thing we have to watch for is when judges go rogue. When a judgment is made they always cite precedents. For example, in the 1892 Supreme Court ruling in Church of the Holy Trinity vs. U.S. they cited 87 precedents to show why they interpreted the law the way they did….but in 1962 for the first time in American history, the court cited no previous cases and ruled in Engel vs. Vitale that; because of Separation of Church and State, the government needed to be separated from Christian principles.

    And once you decide a case without precedents….then you can cite that case AS a precedent…and the slippery slope gets a little bit steeper.

  4. Heidi
    July 22nd, 2010 at 22:12 | #4

    Paul, the “precedent” in that case was the Establishment Clause of the First Amendment! Why should Christian principles be enmeshed with government when this country includes people of all religious backgrounds and none?

    Leo, if the Supreme Court ruled as you suggested in those cases, I would have to live with their decision, wouldn’t I? They are the ultimate authority on constitutional issues. If I was that unhappy, then I would work to convince enough people to amend the Constitution! Otherwise, I would have to follow the law, because that is how our system of government works!

    Yes, governments do derive their just powers from the consent of the governed. And the governed ratified our Constitution over 200 years ago. We always have the means to change it. We just have to convince enough other people to do it.

    As an attorney, I do have to say, that while I understand your first question to be rhetorical, I don’t believe the SCOTUS will overturn Judge Tauro’s decision. His legal/constitutional analysis was spot on and the Court would have to be pretty intellectually dishonest to rule otherwise.

    Gotta go to bed for now, will write more hopefully tomorrow. I appreciate the respectful tone of both of you in this discussion. Leo, I will have some points to make later to clarify the race/gender point that you made and the constitutional analysis applicable to each under the Equal Protection Clause.

  5. Leo
    July 25th, 2010 at 07:36 | #5

    I don’t see how the Establishment Clause requires marriage to be redefined in the case at hand, which seems to be more about states rights. Secular countries such as France have maintained the traditional definition of marriage. As for states rights, Judge Tauro’s opinion would undermine a wide range of federal programs (including health care) and ignores marriage law precedent going back to the federal prohibition of polygamy in the 19th century.

    I disagree about how the Supreme Court will rule on this opinion. In fact, I would be astonished if the Roberts Court agrees with Judge Tauro. We will just have to see.

  6. Chairm
    July 26th, 2010 at 13:49 | #6

    Tauro replaced the law, and our constitution, with his own subjective and arbitrary policy preferences. That is contrary to the appropriate role of the judiciary.

    His reasoning is ridiculous and should embarrias the SSM side, as it has many prominent SSMers.

    That Heidi stands for Tauro’s conclusion is not a surprise; that she cannot defend his offered reasoning will become evident. She makes the classic mistake of 1st year students: she confuses end-gaming with reasoning.

  7. Heidi
    July 27th, 2010 at 15:37 | #7

    Leo, the Establishment Clause doesn’t require marriage equality; the Equal Protection and Due Process Clauses do. The Establishment Clause protects against one group’s religious ideology trumping the civil rights of others who do not subscribe to that ideology.

    Chairm, go ahead and cast aspersions on my constitutional law analysis and compare me to 1st year law students if it makes you feel better. My former constitutional law professor would of course disagree with you, since he chose me to be his teacher’s assistant to help 1st year students understand that particular area of law. The judges that hired me out of law school would also disagree with you, as would my clients. But I’ll leave it to the SCOTUS to have the final say.

    Please, go back and reread the opinion, and tell me explicitly where you think Judge Tauro “replaced the law, and our [C]onstitution, with his own subjective and arbitrary policy preferences.” Please, humor me. I would love to hear YOUR legal analysis. Or do you have nothing more than personal attacks and unsupported claims?

  8. July 28th, 2010 at 01:31 | #8

    The content of your comments is all that matters in these discussions, Heidi, and you might as well get used to it.

    If you react this way to disagreement, then, I doubt the sincerity of your invitation to discuss the flaws in Tauro’s opinion.

    Do you claim it is flawless? Please explain. Let’s get that out of the way at the getgo.

    The onus is on you, Heidi, to state the pivotal point upon which your agreement with Tauro turns. If you cannot do that much, then, readers will draw their own conclusions about your competency, your advocacy, and your sincerity on this particular topic.

  9. Heidi
    July 28th, 2010 at 13:52 | #9

    Silly Chairm, that’s not the way that a proper debate works! YOU are the one claiming that the decision is flawed! Therefore, YOU are the one who bears the burden of identifying those alleged flaws and explaining why you view them as such.

    I’m waiting…

  10. Leo
    July 29th, 2010 at 09:52 | #10


    But you said the ” ‘precedent’ in that case was the Establishment Clause of the First Amendment!” Now you say it is equal protection and due process. Judge Tuaro argued that traditional marriage has no rational basis and must therefore only have a religious basis. (Dr. J. has spent a lot of time making the case that there is a rational basis beyond religion for the traditional definition. ) The judge has to throw out natural law as irrational and make judgments as to which social and psychological studies are valid and which can safely be dismissed out of hand. I believe in such a subjective matters should be the province of the political branches, not a single judge. At any rate, will wait to see if the Roberts Court buys this, which I highly doubt.

    As for his states rights argument, are you prepared to throw out vast portions of federal law, including health care?

  11. Chairm
    July 30th, 2010 at 00:03 | #11

    To those who’d approve of Tauro’s legal opinion, as written in this court opinon, please step-in where Heidi has abdicated.

    Please state the pivotal point upon which your agreement (with Tauro’s offered reasoning) turns.

  12. Chairm
    July 30th, 2010 at 00:20 | #12

    Readers can decide for themselves what to make of Heidi’s determination not to defend that which she had so rashly applauded, at length, long before I had asked for discussion of such a defense.

    Heidi’s approach is far too common among SSMers. She’s just happens to be the one here banging the drum.

    The SSM campaign has so many contradictory claims and legal ‘arguments’ that it becomes quite clear the only thing that begins and ends their argumentation is the predrawn conclusion.

    * * *


    This is an open discussion on a blogsite, but if it were a debate the proposition that you put forth in your opening remarks is that the content of Tauro’s opinion (i.e. his legal reasoning) is highly praiseworthy.

    You made it clear that you are for the affirmative. And, subsequently, that you see yourself as one in a formal debate. So, making the case for the affirmative belongs to you. You’ve declined to make that case. Okay, no problem for me.

    Unrestrained enthusiasm without particulars amounts to cheap praise. And that does not merit anyone else’s agreement on the substance. Applauding like trained seals is not quite the trick some might imagine it to be.

    In effect, empty and unrestrained praise actually speaks against the affirmative. Engaming is not a defense of the route (ie. the legal reasoning) from A to B. But it does point to a reliance on the abuse of judicial review.

    Heidi, despite the obvious opportunity at the outset, you’ve declined to acknowledge any flaw in Tauro’s opinion. This indicates that your praise was for 100% of Tauro’s opinion. Your effusive approval is in full. We got that out of the way. Thanks.

  13. Heidi
    July 30th, 2010 at 12:35 | #13

    I think you’re confusing my comments a bit. The “precedent” discussion was about the case that you cited regarding Engel v. Vitale, which, as you noted, was about separation of church and state. Hence, my discussion of the Establishment Clause, which requires government neutrality regarding religion, and does not allow the government to prefer any particular religion over another, or those with religious beliefs over those who have none.

    The Equal Protection Clause comes into play whenever we talk about classes of persons and differential treatment by the government with respect to one class vis a vis another class. So, for example, if we are comparing two classes (e.g. heterosexuals in long-term committed romantic relationships and same-sex couples in long-term committed romantic relationships), we must first decide if they are similarly situated (meaning are they sufficiently alike–note that the classes do not have to be identical, just sufficiently alike to one another). I would argue that, yes, of course they are. The sole difference between them (opposing body parts and similar body parts) is an arbitrary distinction. In all other ways that matter for purposes of marriage, they are similarly situated.

    Okay, so the next question becomes: if the government is treating two similarly situated classes differently under the law, does the government have a legitimate purpose for doing so, and is the government action, law, rule, etc. rationally related to that legitimate purpose? Now, the religious beliefs of one group are not a legitimate government purpose, because remember, under the Establishment Clause, the government is forbidden from preferencing the religious beliefs of any one group over another. Similarly, class animus (i.e., disgust for same-sex couples or disapproval of homosexuality) is also not a legitimate government purpose for differential treatment.

    Here is an example of a government classification that is perfectly permissible under the Equal Protection Clause: 18 year-olds cannot legally drink, but 21 year-olds can. These two classes, 18 year-olds and 21 year-olds, are similarly situated. Both are considered adults under the law. Only 3 years separates them from one another. However, the government has a legitimate interest in protecting the health and welfare of its citizenry, and studies have shown that a) the earlier a young adult drinks alcohol, the more likely that person is to become an alcoholic; and b) far more alcohol-related motor vehicle accidents happen when the drinking age is lowered. So, the government interest is the health and safety of its citizens. The law, forbidding under 21 year-olds from legally consuming alcohol, is at least rationally related to that interest (i.e., if access to alcohol is harder for that age group, they are less likely to drink alcohol, and less likely to drink and drive). Therefore, the discriminatory treatment is perfectly permissible under the equal protection clause.

    Now, in some instances, the government sometimes has to meet a higher burden to show that a discriminatory classification is acceptable under the EPC. For example, when the classification is based on a protected class (race, gender, religion, etc.), the government not only has to show a “legitimate interest,” but it must show an “important,” or even “compelling,” one, and the law has to be more than just rationally related to that interest, but instead must be “substantially related” or even “narrowly tailored” to achieve that interest. Any law that burdens a protected class will be scrutinized more carefully than one that does not.

    Similarly, when the government law burdens a fundamental right (e.g., the right to vote, free speech, marriage), the government has a higher burden to meet to show that the law does not violate the EPC–same idea as the above paragraph. This is why the government cannot prevent convicted felons, for example, from getting married. Because marriage is a fundamental right that the government may not burden without at least an important government reason for doing so, and the law must be substantially related to that reason.

    Now, back to the issue of marriage equality. As I discussed above, same-sex couples and heterosexual couples are sufficiently similar to be compared for purposes of the equal protection clause. Both groups contain members who meet another adult, fall in love, live together, share financial responsibilities, perhaps even raise children together. And marriage is a fundamental right. (I happen to also believe that sexual orientation should be considered a protected class, but the law hasn’t yet caught up). So, what is the government’s important reason for treating these similar groups differently when it comes to the fundamental right of marriage, and is the discriminatory treatment substantially (heck, even rationally) related to that interest.

    Okay, so your side will argue that the government has an interest in attaching mothers and fathers to their children by favoring marriage for heterosexuals. I won’t argue about whether or not this is a legitimate or substantial government interest, because I suspect one could go back and forth on this (I will note the irony, however, of some conservatives or libertarians crying about government intrusion into the family, yet asserting that the government has an interest in the same). Anyway, I digress…

    The key flaw in the anti-marriage equality position (for EPC analysis purposes) comes when we ask ourselves if the discriminatory treatment of same-sex couples is substantially or even rationally related to the purported government interest of attaching biological mothers and fathers to their children through marriage. First, the government does not just preference procreative married couples, but essentially allows ANY non-related, adult, heterosexual couple to marry. So, why does the government discriminate against same-sex couples but not infertile couples when it comes to marriage, when neither can fulfill the purported government purpose for marriage? Second, there is no law requiring biological parents to marry, and millions of children are born out of wedlock every year, yet the government is prohibited from treating those children differently than children born to married parents. Third, we allow both divorce and adoption, which arguably run completely contrary to the asserted government purpose for preferencing heterosexual marriage, because both serve to detach biological mothers and fathers from one another and from their children (I actually don’t buy this argument in the first place because I had a child out of wedlock 17 years ago, and while her dad and I are not together, both he and I have always been attached to our daughter–and we never got married). Finally, same-sex couples are already bringing children into their homes through different means (ART, adoption) and are raising those children, who are presumably “detached” from at least one biological parent.

    Therefore, the discriminatory treatment of same-sex couples with respect to the fundamental right of marriage completely fails to serve the alleged government interest of attaching heterosexual biological parents to each other and to their children! Not to mention that allowing same-sex marriage is not going to hinder heterosexual couples from choosing to marry and procreate! As such, the discriminatory treatment is unconstitutional under the equal protection clause of the 14th Amendment to the U.S. Constitution.

    Finally, with respect to the states rights versus federal law question that you asked: there is no need whatsoever to throw away vast portions of health care law or any other federal law. The states do have the right to define the criteria for marriage so long as they do not violate the federal constitution in doing so (see above). Thus, in some states, teenagers can marry but in others, they cannot. The federal government treats both marriages (teenager marriage and adult marriage) as legitimate marriages for purposes of federal law. Thus, if the state defines marriage in such a way as to include same-sex couples, the federal government is required (by principles of federalism and the 10th Amendment) to treat those marriages just like any other marriage in any other state. No need to discard any federal law!

  14. Chairm
    July 30th, 2010 at 17:13 | #14

    There is no legal requirement in marriage law that classifies based on the criterion of “romance”. Since romance and marriage are independent, no SSMer can rely on it. And, since romance occurs outside of marriage, no SSMer can say it is the legitimate basis for classification.

    If SSMers rely on the relatively modern tradition of romance, then, they contradict their objection to tradition as the basis for the law.

    The man-woman basis of marriage law is not arbitrary but rather spot-on. The social institution is recognized by government; its core meaning is embedded in the the law. See the requirement that both sexes participate; see the sexual basis for the marital presumption of paternity. Look further, but do not overlook the very thing that SSMers attack with their endgaming.

    Please note that even the attempt to discredit sex differentation must fail for the marriage law does not discriminate against one sex classification nor in favor of another sex classification. Integration of the sexes is not discriminatory against either man nor woman.

    Further, the gaycentric identity politics on display with SSM argumentation presupposes that sex differntiation is of the utmost importance. Hence their own emphasis on same-sex sexual orientation. Apparently body parts matter very much to their argumentation. Meanwhile the marriage law has neither an eligiblity criterion nor an ineligibility criterion that stands on a legal requirement for this or that sexual orientation.

    That’s the beginning of the end for the pro-SSM complaint against the man-woman basis of the marriage law.

  15. Chairm
    July 30th, 2010 at 17:44 | #15

    Let us further examine the profound flaws in SSM argumentation by using its own rules. Instead of applying those rules to attack marriage, let’s challenge the SSM idea.

    There is a wide range of scenarios in the nonmarriage category. Most are not comprised of homosexual people; nor even comprised of those who belong to the gay identity group.

    Society may use the law to legitimately discriminate between marriage and non-marriage. Even SSMers claim that this is a legitimate form of discrimination overall. They insist that anythingn short of merging SSM with marital status would be unjust discrimination. So it is fair to ask: how would the SSM idea draw the line between marriage/SSM (post-merger) and nonmarriage/nonSSM (post-merger)?

    Short answer: they cannot justify discriminating between SSM and the rest of nonmarriage. But they do emphasize gaycentric identity politics as trumping the law, marriage, and even their own rules of argumentation regarding what is and is not legitimate classification and legitimate discrimination.

    When SSMers talk of neutrality regarding systems of belief, they miss the nonreligious case against the merger of nonmarriage and marriage.

    That said, the fervency of the gay identity politics that drives the SSM campaign is unmistakable. It is a leap of faith, a quasi-religion, this identity politics. The openly stated goal of the SSM campaign is to use the big hairy arm of Government to force upon all of society the supremacy of their version of identity politics. They seek to innoculate gay identity politics — to hide behind government power while abusing government power.

    That, in principle, stands against the 1st Amendment of the US Constitution. And it stands against the system of self-government that the Constitution was framed to guard.

  16. Chairm
    July 30th, 2010 at 17:51 | #16

    The marriage law does not classify based on sexual orientation. SSMers insist that sexual orientation be read into the law. Then, they complain that it is in the law. And, since it is in the law, it needs to be justified. And, since sexual orientation is irrelevant to marriage, this means that the marriage law unjustly discriminates on the basis of sexual orientation.

    I kid you not.

    That bizare thought process may be very convenient for reach a predrawn conclusion, however, it is obviously a profoundly flawed approach to lawmaking and to interpretation of existing law.

    Let’s go along with the central theme of the SSM campaign — that there is a class of people who self-identify as same-sex sexually attracted. Let’s concede a whole bunch of things related to unjust discrimination in terms of employment or whatever.

    Well, even if we, for the sake of dicussion, went along with all of that, it matters not one whit when it comes to the marriage law. Sexual orientation makes no appearance neither for eligiblity nor ineligiiblity. The complaint, on that basis, is a nonstarter.

  17. Chairm
    July 30th, 2010 at 17:57 | #17

    Readers will note that the example of drinking age actually reinforces the legitimacy of society not only showing preference for marriage but drawing lines around eligiblity based on the social institution’s core meaning.

    Abolish that core meaning and abolish the special reason for special status of marriage in our laws.

  18. Chairm
    July 30th, 2010 at 18:25 | #18

    In terms of constitutional jurisprudence, a fundamental right is fundamental because it is deeply rooted in our laws, traditions, and customs.

    The SSM idea is not so rooted. Indeed, SSM argumentation seeks to uproot the basis for treating marriage with preference and treating entry into it as fundamental to our society.

    Please note that there is no fundamental right to marry based on sexual attraction, love, much less romance. Afterall, there is no legal requirement that makes any of that mandatory prior to nor during married life.

    See the rules of SSM argumentation. Does not sexual attraction occur outside of marriage? Likewise love? And romance? There is no fundamental right based on these things, according to the SSM campaign’s persistent attack on the centrality of responsible procreation and sex integration.

    Please note that when the abuse of judicial review produces bizarre decisions, such as the one regarding the asserted right of a person to marry during incarceration, SSMers would be advised to look to the principles that were offerred rather than stretch the result out of proportion. The possiblity of consummation was noted in that decision. And that points to the opposite-sexed sexual basis for the marriage law.

    That basis is absent from all one-sexed arrangements — whether those arrangements are sexualized or not.

    On the other hand, love, cohabitation, sharing of finances, and raising children are very often present and account for in most of the range of the nonmarriage category. Lifelong commitment certainly exists among related people who are ineligible to marry; likewise polygamous families.

    So if such criteria work for the SSM-merger, then, they’d work for the rest of nonmarriage, surely. SSM argumentation detracts from the societal interest in discriminating between marriage and all the rest.

    Note that SSM argumentation will refer to “same-sex couples” as if that is some sort of justified limitation. It is not, even according to the rules of used by SSMers.

    First, what is “same-sex”? Well, SSMers mean to emphasize a homosexualized type of arrangement. But the same-sex category is not exclusively sexualized nor is it exclusively the preserve of those with membership in the gay identity group. It is a huge category. And most of it is neither gay nor homosexual nor sexualized.

    So why the limitation of “couple”? The one-sexed scenario could be a lone individual, a twosome, or a moresome. SSMers cannot justify their emphasis on gayness nor on the limitation of two persons.

    When asked, why the limit of two, the SSMer is likely to state that this is how our legal system has always been. Yet that same SSMer will have very likely denounced a similair answer when it comes to the man-woman basis of marriage.

    When asked, why a type of relationship that is sexualized, the SSMer typically shrugs and concedes that the lack of a sexual requirement renders the SSM idea sexless, really, in the eyes of government. Yet that same SSMer will have already insisted that sex difference matters so much that sexual orientation should be read into the marriage law so as to maintain SSM as a sexual type of relationship.

    The marriage law does draw lines based on two, of course, because the nature of humankind is two-sexed. And the law does recognize that human procreation is opposite-sexed. And that society is comprised of both men and women and is not in fact sexless.

    The sexual basis for the conjugal type of relationship — in our customs, traditions, and our legal system — is the basis for sex integration and responsible procreation. And societal concerns about this core of marriage is what justifies the special treatment of the social institution. These concerns are also expressed in the lines drawn based on age, relatedness, and single/marital status of those who’d show-up for a license and for the special treatment accorded those who enter this social institution.

    The SSM idea would arbitrarily draw lines based on age, relatedness, and single/marital status. The typical SSMer will say that the lines will be maintained as they have been prior to the SSM-merger, however, that same SSMer will have already attacked the basis upon which those lines have been sustained, in one form or another, for milennia.

    If challenged, the SSMer might concede that these lines are arbitrary within the SSM idea. That is a huge difference with the marriage idea.

  19. Chairm
    July 30th, 2010 at 18:50 | #19

    Divorce status does not negate parental status, contrary to what an SSMer might assert above.

    That fact is well understood among the homosexual people who retain parental status after marital dissolution. They had been married (to the other sex) and had children together with their husband or wife. The marital presumption of paternity protects the status of the divorced parents — both the mom and the dad — as well as the children. And, it also protects the social institution of marriage as well.

    Adoption comes with at least two pre-requisites. 1) parental relinquishment or loss; and 2) government intervention to assign the replacement parent(s). Remarriage does not do any of that automatically for unions of husband and wife; and SSM would not do any of that for one-sexed arrangements under a merger of SSM and marriage.

    Society may justly prioritize prospective adoptors, and the recruitment of adoptors, on the basis of marital status and on the basis of the prospective adoptors being open to entering the social institution. The reason? The unity of motherhood and fatherhood; integration of the sexes; and the birthright of the child be raised by both mom and dad. Barring dire circumstances or tragedy, society has this obligation when it comes to children in need. Contrary to the adultcentric theme of SSM argumentation, adoption is not primarily a reaction to the neediness of adults and there is no adultcentric right to adopt children.

    The use of Assisted Reproductive Technologies (ARTs) does not necessitate the use of so-called “donations” of sperm and ova. The SSMer who uses rhetoric that says otherwise would mislead on this point.

    There is nothing that necessitates the use of “donations” for it is not a fertility treatment — it is not a cure for a disability (i.e. infertility) nor does it save lives. But it does demonstrate the opposite-sexed basis of human procreation even when one-sexed scenarios use it — whether those scenarios be lone individuals, twosomes, or moresomes. The use of “donations” is also a practice that enables extramarital procreation even when married people partake of it. It points outside of marriage, not to the core of marriage.

    So, extramarital procreation, does not negate the special reason for the special status of marriage in our society. When a married woman, for example, uses “donated” sperm, she goes outside of her marital relationship; yet, ethically and usually legally as well, the husband’s consent is necessary. What necessitates this consent? Well, the marital presumption of paternity’s sexual basis, of course. When expressed in ARTs/IVF specific terms, legislation makes a zig-zag around the presumption. That’s explicitly contrary to what the married man and woman consented to when they said, I do, and entered marriage. So government intervention would shield the practice where this sort of zig-zag has become entrenched. Shield, that is, from the vigorously enforced presumption that the husband is father of his wife’s children due to the sexual basis of human procreation.

    No such necessity exists where a lone female individual or a female one-sexed twosome or all-female moresome use “donated” sperm. First, the scenario lacks a husband whose paternity would be presumed. Second, the scenario depends on the donor’s pre-emptive relinquishment of parental status. Yet the government shields the practice by shielding the so-called “donor” from the responsiblities of his procreating.

    Extramarital practices do not bolster the case for merging SSM with marriage. Quite the contrary.

  20. Chairm
    July 30th, 2010 at 19:17 | #20

    Where the people of a state have been subjected to the imposition of an SSM merger, there is no federal obligation to recognize the one-sexed subset of the merger as marriage.

    The marriage and SSM are two different things.

    The federal government has settled national disputes on marriage before. In both instances, it did so on the basis of societal regard for the core meaning of marriage itself. That was so for the federal intervention against anti-miscegenation; and was so for the intervention against polygamy. It is no less so with the enactment of DOMA.

    Where there other related issues? Sure, but those do not negate the difference between marriage and nonmarriage. Those related issues do not negate the basis for removing the lines drawn by racialist identity politics. Neither do those related issues negate the basis for entrenching the line drawn in favor of monogamy.

    To reiterate: marriage arises from the two-sexed nature of humankind, the opposite-sexed basis of human procreation, and the both-sexed basis of human community. These are givens. The societal response to these givens can be found in the preference shown for the core of marriage — a preference that favors marriage over nonmarriage — and in that preference each society sets its limitations based on societal concern for sex integration and responsible procreation.

    Gut marriage of the reason for its special status and the boundaries for eligiblity and inelgibility become untethered and arbitrary.

    The typical SSMer will be dumbfounded to answer why marriage merits special status. The best the SSMer might do is to make a plea for protective status or perhaps a merely tolerative status. This plea does not distinguish the SSM idea from the rest of nonmarriage; but it does show the difference between SSM (and the rest of nonmarriage) and the social institution that the law accords a preferential status.

  21. Chairm
    July 30th, 2010 at 19:36 | #21

    Readers may note that both sides of the DOMA issue are chocked full of topics and judgements that rely very much on a legislative, rather than a judicial, approach to making the law.

    If Tauro, like other pro-SSM jurists, would prefer act as a legislative assembley unto himself, then, he always has the option of resigning his judgeship and running for elective office and attempting to dictate from that seat instead.

  22. Chairm
    July 30th, 2010 at 19:39 | #22

    Is there an SSMer reading this blogsite who can plainly state the pivotal point upon which your approval of Tauro’s legal reasoning turns?

  23. Leo
    July 31st, 2010 at 10:11 | #23

    See this post from Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at the Yale Law School, who favors same sex marriage.



    “The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal.”

    “Judge Tauro is saying that marriage is none of the federal government’s business, except, of course, when a federal court thinks otherwise. He is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!”

    “If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs [Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act] are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well.”

    Professor Balkin predicts Judge Tauro’s opinion will be quickly overturned. We shall just have to wait and see.

  24. Jenn
    August 2nd, 2010 at 15:22 | #24

    Whoa. Looks like Heidi set Chairm off on quite a tizzy. Too bad that he or she makes no sense in his or her response to the legal issues raised by Heidi. What I’d like to know is if marriage isn’t about love and romance, and it’s all about providing the basis for responsible male/female procreation, why are infertile and elderly couples allowed to marry, but not gay or lesbian couples? That makes no sense to me…but what do I know? I’m only a 21 year-old straight college student who wishes that everyone could be treated equally. But I’m not getting married until my gay and lesbian friends can too!

  25. Chairm
    August 3rd, 2010 at 01:48 | #25


    Legal assertion as stated by Heidi: “we are comparing two classes (e.g. heterosexuals in long-term committed romantic relationships and same-sex couples in long-term committed romantic relationships)”

    Self-defeating point made by Jenn: “if marriage isn’t about love and romance, and it’s all about providing the basis for responsible male/female procreation, why are infertile and elderly couples allowed to marry, but not gay or lesbian couples?”

    Self-defeating because Jenn has just conceded that the so-called constitutional analysis offered by Heidi “makes no sense”.

    No place where SSM has been imposed does the law classify by romance and love. Of course, the marriage law doesn’t do that either. But that is very important to Heidi because Heidi’s pro-SSM complaint, in her own words, depends on the existence of this nonexistent classification. This so-called constitutional analysis shot itself in the foot right at the getgo.

    Besides, as per Heidi’s own stated standards, and those just now implicitly invoked by Jenn, there is no legal requirement that makes love/romance mandatory; there is no government test for these attributes; and romance/love occurs outside of SSM.

    So why would those who are neither romantic nor in love be allowed to SSM? Why doesn’t the SSM law make those requirements for annulment provisions, adultery/divorce grounds, and, oh, the “parentage” notion that SSMers harp on all the time?

    Ooops. The two-sexed sexual basis for marriage is embedded in the law in ways that SSMers can’t promise for SSM. In fact, they eschew the sexual basis for the special status of marriage in our laws and, by immediate extension, they reject the sexual basis for their complaint which is, ironically, based on sexual orientation and membership in the gay identity group, as per Jenn/Heidi’s own comments.

    * * *

    Jenn “wishes that everyone could be treated equally”.

    Sure, and they are under the man-woman basis of marriage law today. But having the courage to acknowledge this seems now to depend on acknowledging what the social institution of marriage actually is.

    It does not depend on what SSM is, because no SSMer has justified treating the rest of nonmarriage as unequal to the type of relationship that the SSMer has in mind when talking of gay and lesbian “couples”.

    Jenn/Heidi’s comment is self-defeating in another way: it conceded that the pro-SSM emphasis is on the promotion of gay identity politics and pressing that not into the law and, apparently, even into the culture.

    Jenn would hold herself hostage to that as if that was a good reason to hold all of society hostage as well.

    That’s quite the tizzy your did there Jenn. Heh.

    * * *

    For the record, Heidi, did you make that comment under the moniker “Jenn”?

  26. Chairm
    August 3rd, 2010 at 01:50 | #26

    Typo correction: “Jenn/Heidi’s comment is self-defeating in another way: it conceded that the pro-SSM emphasis is on the promotion of gay identity politics and on pressing that not only into the law but also, apparently, even into the culture.”

  27. Chairm
    August 3rd, 2010 at 01:51 | #27

    Is there an SSMer reading this blogsite who can plainly state the pivotal point upon which your approval of Tauro’s legal reasoning turns?

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