Ruth Institute Blog

What bothers me, and what presumably will bother the Supreme Court, if not the 9th Circuit, is not so much the end product (genderless marriage, which I happen to oppose), but the frontal assault on foundational principles of good government. Not only would Judge Walker deny the citizens of California the ability to amend their own constitution, as duly passed and affirmed by their own San Francisco-based supreme court, he would be happy to deny citizens any effective appeal from his own decision, making a joke of judicial restraint and by-passing precedent (Baker v. Nelson), the consent of the governed, federalism, and the right to petition for redress at one stroke. His new governing principles seem to involve the right of a single judge to declare dissent from his views irrational and hence unconstitutionally illegal on the basis of selected views from social science. It does not take a fertile imagination to see where such precedents might lead if left unchecked.

Huh. Brown v. Board of Education relied on evidence from social science as well. And it overrode the will of the majority too, at least in the southern states. Can’t you just hear the words of George Wallace echoing in your head? “I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, segregation forever!” Thankfully for Mr. Wallace, his heart and mind were opened before he died. Perhaps it would be better to consider the words of Mildred Loving, in her remarks made in celebration of the 40th anniversary of the landmark case of Loving v. VA:

“Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”

It sounds to me that Mildred Loving understands what the right to marry, and marriage itself, is all about. And while she mentions her children and grandchildren, she certainly doesn’t use them as an excuse to define the right to marry in terms of the ability to procreate. She truly understands the fundamental freedom and right to marry and how important that right is to every citizen.

With respect to the alleged claims of judicial activism, bias, or the usurpation of the voters’ rights to enshrine discrimination against LGBT people in their state constitution, Americans would do well to remember that, regardless of how any state would amend its constitution, the U.S. Constitution trumps state law if there is a conflict between them. With respect to the issue of standing to appeal, the governor or the attorney general are typically the ones who represent the people, or voters, of a state. But they’re not willing to appeal here. Don’t blame Judge Walker for that. Poor guy. He has been vilified by the radical right simply for doing his job. He had two sides present their cases to him. One side did so effectively, with excellent expert testimony and other witnesses. The other side did so poorly, with two “experts” who relied on data that was irrelevant to the issues before the court and who failed to make the case that the litigants who hired them expected them to make. Then, with the knowledge of the U.S. Constitution and of prior United States Supreme Court precedent, Judge Walker assessed the evidence before him and applied the law to that evidence. Even if you disagree with his ultimate conclusions, you do your side a disservice when you say that he was biased or that he is a judicial activist, or any other such nonsense. By failing to actually engage the evidence and the constitutional law discussion, you make your own side of this argument appear even more irrational and bigoted against gay people than it already appears. It’s one thing to say that you disagree with his legal analysis or his assessment of the evidence that was presented to him. That is an honorable point of view, so long as you can back it up with reasoned argument. But this vitriolic disdain for a man who did the job that he was asked to do is uncalled for and just makes you look like sore losers who do in fact hate gay people.

I should say that Mrs. Loving “understood” what the right to marry and marriage really mean. She passed away in 2008. I hope she is smiling in heaven when equality under the law for all citizens of this country finally, at last, becomes the reality across the land. Thank you Mr. and Mrs. Loving for braving the hatred of the world and for standing up for love.

I can’t imagine why SCOTUS shouldn’t just fast-track this one on up.

Anyone who thinks SSM is a “constitutional right” needs only to ask this: who ratified that and when? 1868 and the adopters of the 14th? Please!

Your case for genderless marriage is never made without implicitly claiming the equivalence of race and gender. But I deny that race and gender are equivalent or even similarly situated. The Warren Court would have been shocked at this notion, and you know it. Race is a tenuous biological concept that was and still is a primarily an arbitrary social construct. One drop of Negro blood in those days made you black, which is biologically silly. President Obama is as much white as he is black, but by social construct, he is black. Blacks were systematically denied the vote, particularly in the South, making a solution by the electoral process extremely difficult. After almost a century of “separate but equal” it was clear that the system was totally corrupt, that the black schools never received anything close to equal funding or support, and absent federal action would not have for the foreseeable future. These conclusions were not that controversial. The Supreme Court was not narrowly divided. The decision was unanimous. Except for the case of white Southerners, the consensus in the country was strongly for the decision.

Let us contrast this with the case at hand. I would be absolutely shocked if the Supreme Court makes an 8-0 decision to uphold Judge Walker’s decision. Gender is not race. Gender has a biological basis that is still recognized in law. Brown v. Board accordingly did not outlaw separate restrooms for the sexes in the schools (or elsewhere). Ask yourself, why not? Homosexual couples inherently do not face the burden (and opportunity) of conception arising from sexual activities within their unions, a fact conveniently ignored by the judge. This is not an arbitrary social construct foisted on homosexuals by a hostile state as in the case of the Jim Crow and miscegenation laws; it is a biological inevitability. California, and especially San Francisco, is one of the most gay-friendly places on earth. Gays, far from being systematically denied the vote, are arguably the most powerful lobby in state California. Homosexual couples in California, not surprisingly, have every advantage in law and in family law that heterosexual couples have, except the word “marriage.” Gays don’t face segregated schools or segregated rest rooms or public facilities, nor are they forced to ride in segregated seats on public transportation. Far from being on the bottom economic rungs as were blacks in the fifties (and unfortunately blacks still seriously lag economically), homosexual couples prosper more economically than their heterosexual counterparts. Homosexuals can pretend that they are similarly situated to blacks in the Jim Crow South, but black voters in California didn’t buy it.

Judge Walker’s careful selection of controversial “facts,” combined with his willingness to ignore precedent that he doesn’t agree with (e.g. Baker v. Nelson), leads him to find that the voters could only be acting irrationally in passing Proposition 8 and similar laws and amendments in most other states and similar laws in most countries of the world and therefore they should have no say in maintaining the traditional definition of marriage. This exercise in mind-reading is very bold when you ponder the theory that irrational voters and legislators and jurists can be summarily dismissed, including the ruling of Supreme Court of California and prior rulings of the U.S. Supreme Court.. The U.S. Supreme Court may yet redefine marriage, but if it follows the reasoning of Judge Walker, it will ignite a culture war of huge proportions with no end of court cases. It is a relatively short step from Judge Walker’s reasoning to forbidding churches that do not perform same sex marriages from performing any legally recognized marriages. They will be able to perform ceremonies, but those won’t be licensed or recognized by the state, since by doing so they would be hurting the feelings of a protected group entitled to the protection at the strictest level of scrutiny (“feelings” were a very important issue at the trial) and performing “marriages” which don’t conform to the judge’s definition of marriage. The feelings of the church members will not matter since (1) they are not entitled to the strict scrutiny standard, and (2) they are acting irrationally anyway. I suspect those who follow in Judge Walker’s footsteps might find other things they don’t like to be irrational and purely the product of morals and religion and therefore subject to the legal dismissal without appeal for lack of standing and on consideration of settled “facts” and the irrelevance of “morality.”

Now ask yourself how you would react if a solitary judge in, say, Louisiana, claimed that federal policy on, say, deep water drilling was irrational, based on a set of scientific “facts” he liked. And what if another solitary judge in, say, Alabama, declared that civil unions served no rational purpose based on a set of “facts” he liked. There is no end to this game without some judicial restraint, the right of appeal, the recognition of precedent, and a general respect for the consent of the governed.

I would note that the plaintiffs have never won a decision in the case outside of Judge Walker’s court. All appeals above his court have been won by the defendants. I fully expect Judge Walker’s main decision to also be reversed on appeal, and I fully expect Heidi not only to disagree but to claim that any court that rules against her views is biased and bigoted and could only be motivated by irrational hatred. Do you feel Baker v. Nelson was decided by bigoted justices who hate gay people?

The social science underpinning Brown was superficial, at best, and did not merit the weight the court gave it. So pointing at that aspect of the Brown decision does not bolster Walker’s abuse of judicial review — it rather deflates it.

Marriage integrates the sexes but SSM is a sex-segregative arrangement. SSMers are at odds with the Brown decision, anyway, because they also call mixed-orientation marriages “sham marriages”. So the SSM viewpoint favors segregation based on sex and based on sexual orientation. Also, the SSM campaign seeks to press the supremacy of gay identity politics into marriage, constitutional jurisprudence, and the system of governance; all things that the supremacy of white racialist identity politics did at the time of the Brown decision and the Loving decision.

It is twisted how SSMers try to appropriate US Supreme Court precedents which actually stand against the central themes of the SSM campaign’s courtcentric approach.

Walker did not address the controlling precedents that he, as a lower court judge, is obliged to address, one way or the other, when passing judgement. He advocated his own policy preference rather than stand as an impartial arbiter. Thus, he over-stepped the bounds of judicial restraint. He abused the judicial role.

Heidi, what do you believe limits the judicial role, if anything? Don’t be shy about this. You clearly are all for activism on the bench. What, if anything, limits the rule by judges?

To the SSMers:

By failing to actually engage the evidence and the constitutional law discussion, you make your own side of this argument appear even more irrational and bigoted in favor of the gay identity group than it already appeared. It’s one thing to say that you agree with his legal analysis or his assessment of the evidence that was presented to him. That is a point of view, so long as you can back it up with reasoned argument. But this unrealistic praise for a man who abused judicial review that the plaintiffs asked him to do is uncalled for and just makes you look like endgamers who do in fact hate our constitutional form of governance.

1. Walker did not engage controlling precedence on his plate.

2. Walker did not provide a balanced and reasonable assessment of all the evidence put before him. Indeed, he misrepresented both sides.

3. Walker wrote a policy advocacy piece that SSMers might love but which does not withstand the test of his own offered reasoning. It collapses like a house of cards.

For those who approve his opinion (and not merely his conclusion), please tell us what you think is the pivotal point in his reasoning which convinced you that you should agree with his decision.

Failing that, the rest is handwaving nonsense.

Mr. and Mrs. Loving would have been astonished, as they listened to the Loving court’s opinion and ruling, that their marriage did not include the legal marital presumption that Mr. Loving was the father of the children born to Mrs. Loving during their marriage.

Yet SSM argumentation denies that such a presumption is central to marriage — merley because it can not apply to the one-sexed arrangement and ipso facto must be an expression of a bigoted idea.

Mrs. Lovings remarks are mistaken when it comes to the core meaning of the social institution. The court that gave the Loving decision did not say what she ahistorically claims it to have said.

Chairm: Amazing how you present “facts” and then come up with ways to justify them. I think most of the people who have commented in favor of SSM have “actually engage(d) the evidence and the constitutional law discussion”. Those in favor of Prop 8 presented scant evidence, much of it irrelevant to the subject at hand. Even the attorney himself said that he didn’t need to present evidence.

We are discussing the trial overseen by Judge Walker. And the issue at hand was how this district judge would interpret the law and constitution — including the controlling precedent whch he is not empowered to disregard entirely, as he did and as SSMers here continue to do.

The evidence relevant to the actual constitutional questions, at law, were amply engaged by the Cooper legal team.

Mark, you are misrepresenting what Cooper said regarding presentation of evidence. He said something quite different.

In your account you have bought the pro-SSM propaganda which has misrepresented what Cooper said; and Walker, in his written opinion (on policy rather than the questions at law) also misrepresented what Cooper said. Piling up those misrepresentations does not amount to much more than the concession of the anti-8 side that they rely on falsehoods rather than facts and on-point legal reasoning.

I hope, sincerely, that you will double-check your contentions with the actual progress of the legal arguments made by the Cooper legal team, before repeating the misrepresentations again.

the conservatives here are radical liberals constitutionally following the philosophy of the french revolution.

news flash: the american constitution is designed specifically and only to limit the power of the federal government or in the cases of states the state government. All other “rights” are reserved to the people.

The purpose of the american constitution is not to enumerate or grant rights to the sovreign citizens. Conservatives here want to turn us away from being a constitutional republic with republican representative ideals into a democracy where might makes right and whoever has the majority can be dictators to whatever minority.

When the usa is even more diverse, this means that we maybe will eventually be under sharia law. so called conservative christians here imagine that natural law informed by christianity is the same as sharia law. all must bow to it whether they agree or not.

This will turn out badly for those of us who share the conservative values here, but do not at all share the methods you all here are using.

Chairm: “The evidence relevant to the actual constitutional questions, at law, were amply engaged by the Cooper legal team.”
And that “evidence” is what, exactly? And please define what you mean as “controlling precedent”.

I don’t think any other judge would have reached a different conclusion from what Judge Walker did. There was no evidence supporting the limiting of marriage to opposite-sex couples! That was Cooper’s job and he failed to substantiate the state’s need to reserve marriage for straight people.

Mark, do you agree that a district judge is bound by the precedents of the higher courts? Evidence and analysis of such precedents is far more important than trying to convince one person (Walker) to select a policy to impose. Walker skipped what was central to his role, as a district judge, and posed as a policymaker instead.

Chairm: if every judge was bound by the precedents of higher courts, we’d still be in the dark ages. Why? Because the higher courts cannot hear every single case. The lower courts hear EVIDENCE (something the pro-Prop 8 people failed to produce) and make a ruling. The higher courts review the decisions to see if they are correct. That is how laws evolve and change.

Mark, every district court judge is bound to deal with the precedents of the higher courts. That is not darkness, but it is a restraint on judicial review that Walker abandoned.

In this instance Walker did not justify his facting finding mission. Can you?

Please note that unless Walker deals with the controlling precedents — either by explaining how he has applied them in his legal thinking or how he has put them aside in his legal thinking — he has failed as a district court judge. He did not deal but rather he ignored. And that’s regressive and not evolutionary within constitutional jurisprudence.

Chairm: Judge Walker did look at precedents. He also looked at the evidence (of which there was none from the pro Prop 8 side). SO, if precedent rules the day: we would still believe the earth is flat, blacks would still be enslaved, women would not have the vote and a whole variety of things that have CHANGED based on evidence.

As far as fact finding: that is the job of those who are presenting evidence, not the judges. As any OPEN minded person who has read the ruling can see, there was no evidence to support Prop 8 – None, zilch, nada.

Judge Walker is exactly the type of person we should have as a district judge. He listened to evidence, weighed it against the argument at hand, considered the past and wrote an elegant, concise decision.

Just because you disagree with it, does not dismiss it.

For those who approve his opinion (and not merely his conclusion), please tell us what you think is the pivotal point in his reasoning which convinced you that you should agree with his decision.

State that much or stop praising Walker’s abuse of judicial review.

Failing that to state that much reinforces the observation that the rest is handwaving nonsense.

His reasoning is quite simple: there was no evidence to support the removal of rights from a minority by the majority. None. Any logical person would come to the same conclusion.

Go to this site. Read. Learn.
http://prop8trialtracker.com

Under the man-woman basis of marriage law there has been no removal of rights based on sexual orientation nor based on membership in an identity group. You can not cite an eligiblity criterion based on either for SSM anyplace where it has been imposed; you can not cite an ineligiblity criterion based on either for marriage anyplace either.

If you had a logical argument, you would not start and begin with your single self-serving criterion that to disagree with your SSM idea is bigotry. It is from that absurd notion — entirely arbitrary and untethered to the rule of law — upon which you pivot in circles as you endorse Walker’s policy conclusion.

You and he are now tied together in open advocacy for the primacy of gay identity politics in our laws and constitutional jurisprudence.

By the way, readers can certainly wade through Walker’s hop-skip-and-jump and detect the bias that has been illustrated by yourself here, Mark. Your invitation for readers to read and learn is an invitation that destroys your own complaint against the man-woman basis of marriage and that will bolster the charge of abuse of judicial activism against Walker and the rest of the SSM campaign.

Meanwhile, Mark, you have not put your finger on the pivotal point in his reasoning which convinced you that you should agree with his decision.

Apparently it is merely the conclusion, predrawn, that moves you to such vague support of Walker’s “legal reasoning” — how he got from A to B. Your response is amounts to an open concession on that score.

Mark, the prior question stands unanswered by yourself:

In this instance Walker did not justify his facting finding mission. Can you?

Chairm: Please open your eyes and your heart. To claim that marriage is one man-one woman automatically removes the rights from those who were born gay. You might as well declare marriage is only between two whites and then claim that there is no bias.

I can ask you the same question: what is the “eligibility criterion” for OSM? One man and one woman? So a brother may marry his sister, a mother her son, a grandfather his granddaughter, an aunt her nephew?

I believe in marriage, very strongly. But my criteria is two consenting adults who wish to commit their lives to each other.

Again, please read carefully, as I have already said, it is not a judges duty to do fact finding. That is what the attorneys are hired to do: present evidence to support their case. So your question has no baring on this case.

Please be honest, you dislike gay people and thats whats really at the heart of this issue.

Mark, it is not a question of like and dislike. It is a question of your SSM idea not living up to its billing as a superior version of the marriage idea. It is a matter of the SSM campaign being stuck on stupid — demanding that the marriage idea be held to standards that the SSM idea itself cannot withstand. It is a matter of marriage being about far more than organizing society by sexual orientation and by identity politics.

I don’t dislike “gay people” but I do cherish and support the foundational social institution of marriage against the attacks that have been brought forth by hockers of gay identity politics. On the other hand, a significant portion of the openly gay segment of the electorate cast their votes for the CA marriage amendment. They supplied the margin of victory for a measure that you claim is, at heart, a bigoted affirmation of the man-woman basis of marriage law.

* * *

Mark, you are right about an important point: there are opposite-sexed combinations that are ineligible to marry because they are born related. Consent is not a trump card. These combinations are ineligible precisely because they are comprised of both man and woman.

I’ve not said, nor even hinted, that the man-woman criterion is a form of carte blanche for all types of relationships and all types of arrangements that include both sexes. Please acknowledge that.

Lines are drawn around the core of marriage (a core that you have rejected) and are justified by that core. These are not arbitrary acts against the liberty and rights of individuals. These lines are drawn based on the type of relationship that merits the special status that society accords the social institution of marriage in our laws, customs, and traditions.

You might dismiss this as basis for the constitutional right to marry. But then you would reject marriage itself. And you have offered zilch as replacement other than an overwrought emphasis on gayness.

Societal concern for sex integration and responsible procreation (combined as a coherent whole) is the source for the justification for where and how societies draw the lines of eligiblity and ineligibility to enter this social institution.

Your SSM idea is indistinguishable from the rest of nonmarriage. So, tell me, Mark, how can you possibly believe strongly in that which you have openly rejected?

* * *

Regarding Walker, you have not read and comprehended his pro-SSM opinion if you think he did not undertake a fact-finding mission; he did so as a policymaker in judicial garb.

The question I asked deserves at least an attempted answer if you are so delighted with Walker’s offered legal reasoning.

The question asked: “In this instance Walker did not justify his facting finding mission. Can you?”

Chairm: You must be honest with yourself. It DOES come down to a dislike of gays. There is no other explanation.

And do not attempt to understand what I do or do not reject. NEVER have I said I reject marriage. I have said numerous times that I support marriage, just not in the narrow minded way you seem to think it should be maintained.

Again, you make up a statement that you say I have said and then disagree with it. I never said that “man-woman criterion” is the only way you see relationships but it is the only way you see marriage. But you can not defend OSM because every “argument” you put out there is easily disproved.

It truly is sad that you are wasting so much of your energy “defending” a relationship that needs no defending. Course, if you truly believed in “defending” marriage, you would be working on laws to outlaw divorce. But, of course, that doesn’t involve same-sex individuals so its not a problem.

And, I am sorry if my language is too difficult for you to follow (perhaps I should make up some terms) but I have explained over and over that Judge Walker is not responsible for any fact finding mission. While I am not an attorney, I believe it does not follow legal guidelines for a judge to make a ruling based on information not presented as evidence. Of course, if you feel that is how our judicial system should work, I will hope you never have to stand before a judge.

So, answer me this: why did the Prop 8 attorney say, during the hearing, that he did not need to present any evidence to support Prop 8?

Mark, you reveal your own bias with your charge of “dislike of gays” being “the only explanation” for opposing gay marriage. Gayness or straightness has nothing to do with our position on marriage. Stop being so intolerant.

Norrie: Please look up the word “intolerant” before you continue to use it incorrectly. There is NO other explanation for opposing SSM, none. Evidence shows that marriage benefits both people and children flourish in such a setting (and not just the traditional man-woman marriage). There is no detriment to OSM where SSM is allowed. So there can be no other explanation than a dislike of gays for blocking SSM. The logic is clear, the evidence was clear in the Prop 8 trial, and there is no other explanation. Oh, people will cover up their dislike with lots of nice sounding words, getting defensive about being called bigots, but it truly is no different than the people who were trying to block interracial marriage in the 50′s.

Mark, you reject the core meaning of the social insitution of marriage. You have been overtly insistent on this very point.

If every argument in defense of that core meaning had been disproved, you’d have done better than invoke rules of argumentatation that destroyed 1) your complaint based on gayness, and 2) your own vague SSM idea, and 3) the special reason for the special status you’d hope to appropriate for favored subset of nonmarriage. Meanwhile the core meaning of marriage is embedded in our legal system, customs, and traditions such that it has been deemed a fundamental right.

You haven’t disproved the defense of marriage but you have hypocritically depended on the courtcentric view that this fundamental right be uprooted from what makes it both a fundamental right and something that society regards with preference. In its place you’d impose the entrenchment of the primacy of gay identity politics in asserting a constitutional right to force society to merge nonmarriage with marriage.

This has been illustrated first in your own words and second in your responses to the queries and the challenges put to you here.

Mark, your petulant remark regarding divorce has again revealed the totalitarian impulse just beneath the surface of the rights-talking SSM campaign. We’ve heard that stuff from others, and from leading SSMers, but you have echoed that same impulse more than once.

Interestingly, divorce does feature quite prominently in those “same-sex households (a Census term, not mine, designating a household with presumably homosexual adults in sexual relationhip) that are raising children. Most of those children, by far, are children of divorced or estranged mom-dad duos. Your totalitarian impulse would have the sort of colateral damage that even you might think twice about before hurling angry ad hom attacks.

Meanwhile the marital relationship does need protection from the likes of the blatant pro-gay bigotry in your comments.

* * *

Mark, you have misrepresented what the Prop 8 attorney actually said — by your clipping it and taking it entirely out of its legal context. Note that Walker committed the same error as he followed the lead of the anti-8 lawyer whose misrepresentation has been voiced and spread by the newsmedia. Nifty how the abuse of judicial review provides the foundation for your query, eh? The corruptive influence of gay identity politics is not inconsequential. Indeed it is one of the earliest harms to society that flow from the SSM campaign and its argumentation.

Plenty of evidence was presented in the courtroom. Walker pretended that witness testimony trumped all other form of evidence — including the controlling precedents of the courts above his district court. (Talk about “guidelines”.) This pretense of yours and Walker and the entire SSM campaign demonstrates that you do not respect the judicial role, you do not respect the rule of law, you do not respect the Constitutional framework under which marriage has been deemed a fundamental right. You sweep aside so much with flimsy rhetoric and intolerant triumphalism.

These are yet more signs of the reliance of the assertion of the supremacy of identity politics, on your part.

Chairm: Since you say I reject “core meaning of the social institution of marriage”, please state IN ONE SENTENCE (or even one short paragraph) what the core meaning is (at leat to you).

Ever argument against SSM could be used against OSM except for the procreation one.

Chairm: and thank you for finally admitting that “the Constitutional framework under which marriage has been deemed a fundamental right.” So, with marriage as a fundamental right, how do you justify denying that fundamental right to same sex couples?

Mark, your query about the core meaning has been answered multiple times — in brief and at length.

The core meaning of the social institution is 1) sex integration, 2) provision for responsible procreation, and 3) these universal features, in the least, combined to form a coherent whole. The rest flows from that: the societal significance that prompts societal preference and special treatment, the lines drawn based on societal concern for protecting and privileging this institution, and the fundamental part of fundamental right in our constitutional jurisprudence.

Mark, the argument about responsible procreation is entwined, entirely, with the argument about sex integration. The combination is coherent and it also provides the coherency to the marriage idea itself. The sum is greater than its parts.

To the extent that the lines around eligilibity are drawn around this core meaning — around this or that society’s regard and concern for sex integration and responsible procreation — yes, there are arguments against the eligibility, or rather for the ineligiblity, of many types of opposite-sexed types of relationships and kinds of living arrangements.

Mark, I’ve maintained, from the getgo with you, that the special reason for the special status of marriage — including the acknowledgement in our constitutional jurisprudence that society regards entry into the institution to be a fundamental right — is of the utmost importance to the actual clash of the SSM idea against the marriage idea.

My saying as much in my earlier comment(s) isnot a sudden admission on my part. Perhaps it is merely a sudden realization on your part that the framework of the US Constitution is supportive rather than hostile toward the core meaning of this foundational social institution of civil society. Afterall, Government (upper case G) is not instituted to own civil society but to serve civil society. So it is essentially an affront to liberty and our form of self-governance for the SSM campaign to demand that Government take ownership of this social institution and that is compounded by the demand that Government do this by (or for the purpose of) imposing upon all of society the primacy of identity politics — whatever version of identity politics that might be.

The Loving analogy, for example, favors the defense of marriage and stands against the SSM campaign and its varied argumentation.

Mark, what is the basis, do you think, for limiting eligiblity? Or as you put it, what is the justification for “denying that fundamental right” ever for anyone?

* * *

In your last question you used the phrase, same-sex couples, and I would appreciate your plainly stating precisely what that phrase means to your viewpoint.

In addition to that please explain

1. Why “same-sex”?
2. Why “couples”?

I expect you meant something sexual with this phrase; or something to do with romance; or, in short, you meant to refer to a type of relationship which has certain essential features — such as same-sex sexual attraction or same-sex sexual romance or same-sex sexual behavior.

The reason this is an important clarifying question is that if this phrase is freighted with your unstated core meaning for SSM/marriage, then, your question to me, and the question as turned back to you above, becomes central to the contest between the SSM idea and the marriage idea (or, at least the different versions of the marriage idea between us).

Chairm: Unlike you, I will define the terms I use (although same-sex couples is a commonly used term whereas “sex integration” and “responsible procreation” are uncommon terms, bascially used to defend OSM).
Same-sex means people of the same sex (male with male, female with female). Different areas of the country define this differently: in Ohio, your sex is determined by your birth certificate sex. Other states, if you have and gender re-assignment surgery, you can legal have your sex changed on legal documents.

As far as Government “take(ing) ownership of this social institution”, it already has taken ownership or, at least, become enmeshed with it. There are thousands of federal and state laws (not to mention international ones) which refer to “marriage”. If you do not want Government in marriage, all of these laws must be changed.

You continue to come back to how important procreation is to your definition of marriage but have not explained why you are not bothered by OSM couples who cannot or will not bear children.

When I use the term “same-sex couple”, I am referring to two individuals of the same sex who consider themselves a couple. This is NO difference then using the term “opposite-sex couple”. A couple is two people who form a relationship based on any number of things: love, sexual interest, companionship, child rearing, etc. Opposite sex couples form relationships for the EXACT SAME REASON. There is NO distinction other than the nonsense term (which you refuse to define) “sex integration”.

When do we “limit eligiblity (sic)”? In the past, there have been a variety of reasons, the most recent was different races (just to avoid confusion, I believe in inter-racial marriage). Slightly older reasons were immediate family members which was to avoid genetic deformities in children (of note, this was NOT closely observed).

And when you mention the Loving analog, I assume you are referring to the Loving case? or did you mean loving ( as in a profoundly tender, passionate affection for another person)? If its the former, the decision does not same in opposition to SSM but rather supports and defends it.

Mark, I’ve explained my meaning, extensively, and the term responsible procreation is understandably related to marriage rather than other stuff. Way back when Clinton was President, DOMA was discussed in that very context with that very terminology. You may need to broaden your knowledge of the marriage issue. Indeed, I highly recomend that you open your mind and hear to all that marriage entails.

Mark, yes, there are legal incidents that flow from marital status. But that does not mean government owns the social institution. Nor does it mean that government owns each marital relationship.

No matter, you have confirmed that your view is that Government owns the foundation of civil society and that it owns each union of husband and wife. I know you tried to fake a shrug in making that admission, but your remarks are on the record as quite a bit more than an ambiguous gesture.

Mark said: “Same-sex means people of the same sex”.

No mention of gayness. No mention of sexual orientation. You have scrubbed that from your attempt to define your key term.

Okay, so now you mean people of the same-sex regardless of all that.

And: “I am referring to two individuals of the same sex who consider themselves a couple.”

You call them as a couple because there are two persons. But that does not depend on what they consider themselves to be. You could count without consulting them about whether or not they are two individuals.

If their consideration is the key, then, how does their counting two individuals better define your term than anyone other than them counting two individuals?

Anyway, no mention of gayness, sexual behavior, sexual attraction, sexual romance, or even commitment. So you can’t rely on that stuff in your argumentation. The term, as you defined it, is far broader than the SSM campaign would have people believe.

Your use of the number two (i.e. couple) to describe a same-sex scenario is an afterthought, an add-on, that does not intrinsically follow from the lack of the other sex.

Unlike, oh-I-dunno, the way that two is intrinsic to the integration of man and woman.

* * *

Mark said: “the [Loving] decision does not same [sic] in opposition to SSM but rather supports and defends it.”

Sure it does — because the supremacy of identity politics was unconstitutional when it was about racism but it is constitutional when it comes to gayness.

I know, your hoping that calling people bigots is the beginning and the end of the conflict over your SSM idea and the marriage idea, however, it is you who seeks to drag a sex-segregation under the auspices of the institution that integrates the sexes. It is you who has proposed that Government own the institution and that it own each union of husband and wife. It is you who has revealed a totalitarian impulse in what Government is empowered to force people to do.

* * *

And: “I believe in inter-racial marriage”.

Please state the objective criteria by which you might identify an inter-racial marriage from one that is not inter-racial. Hopefully, you wouldn’t rely on a belief in the criteria of the anti-miscegenation system.

Do you believe in inter-sexual-orientation marriage (also known as MOMs — i.e. mixed orientation marriages)? Yes, no, or shrug?

Mark, you dodger you.

I did not ask “when do we limit eligiblity?”

I asked: “what is the basis, do you think, for limiting eligibility? Or as you put it, what is the justification for “denying that fundamental right” ever for anyone?

Pointing to genetic problems does not point to justification for denying related individuals of the same sex. It does point to procreation, however, you reject procreation (including responsible procreation) as a legitmate basis for denying eligiblity. So your response does not answer the question, as asked, nor does it even come close to hinting at a justification for denying a fundamental right to marry, according to your conflation of the SSM idea and the marriage idea.

Of course, the racialist system disparaged responsible procreation, also, and used an identity filter to use marriage to selectively segregated the sexes, too. So your pointing to the racialist scenario is self-defeating, really.

Meanwhile the question remains: what is the basis, do you think, for limiting eligibility? Or as you put it, what is the justification for “denying that fundamental right” ever for anyone?

You ought to have a ready answer, given your certitude, that flows directly from whatever you think SSM/marriage actually is. Surely it is not just any two individuals who consider themselves to be SSM’d/married. Or is that what it come down to for you afterall?

Mark, you exhibit all the symptoms of intolerant behavior (refusing to accept others’ reasons for the beliefs and opinions they hold, making up uncomplimentary reasons in place of the explained ones, engaging in various forms of brow-beating and name-calling, specious arguments). Don’t shoot the messenger.

Norrie: Simply disagreeing is not intolerant behavior. I can accept others reasons for their beliefs, thank you very much. But not when they use those beliefs to deny fellow Americans of their constitutional rights for no other reason then “I believe”.

Chairm: “… because the supremacy of identity politics was unconstitutional when it was about racism but it is constitutional when it comes to gayness”
Thank you for FINALLY admitting that its all about the gays! It is THE reason why people are so bent on denying equal rights to all Americans. But, you know, people once thought racism was perfectly reasonable as well.

“Anyway, no mention of gayness, sexual behavior, sexual attraction, sexual romance, or even commitment. ”
Sigh, you really need to read my entire answer. because, I actually DID mention reasons for people to define themselves as a couple. But, again, nice to see the term “gayness” showing up. It is what is at the heart of this for you.

When a man and a woman want to marry, do we ask them about their sexual behavior, sexual attraction, sexual romance, or even commitment? No, because when they apply for a license, they are demonstrating their commitment. That is ALL two people should have to do.

And, as for limiting marriage? As far as I am concerned, any two consenting adults who wish to marry should be allowed. Does this mean a brother and a sister? A father and a daughter? Two sisters? A black man and a white woman? I could care less. If two people want to commit to each other, that is all that is necessary (it is currently the way it is done for OSM). Now, there are laws on the books about restricting marriage between first degree relatives but, other than the risk of genetic defective children that might be produced from such a union, I see no reason to deny eligibility in this case either.

“… you reject procreation (including responsible procreation) as a legitmate(sic) basis for denying eligiblity (sic)” Well, you got this one right. But then, you don’t express any concern regarding how to assure that those who marry are procreating. So this can’t possibly be a big part of your definition of marriage.

“Of course, the racialist system disparaged responsible procreation, also, and used an identity filter to use marriage to selectively segregated the sexes, too.”
How, exactly, did the racial discrimination policies in the past discredit “responsible procreation”?

And your comment about my answer regarding “limiting eligibility” – simple semantics. I did answer your question, please be honest.

Mark, from the getgo I’ve asked you to justify your insistence that society, through government, discriminate between marriage and nonmarriage.

You return to gayness, over and over, and so it is you, not I, who makes it “all about the gays.” There is no gay criterion for ineligiblity under the man-woman basis of marriage law.

You favor the supremacy of gay identity politics. Your favoritism is the racialist analogue.

* * *

Mark: “when they apply for a license, they are demonstrating their commitment. That is ALL two people should have to do.”

Actually, see the legal basis for sexual consummation, provisions for annulment, provisons for adultery, and provisons for responsible procreaton — including the marital presumption of paternity. None of that is one-sexed or sex-neutral.

On the other hand you have illustrated that your SSM idea expressed in law is sexless and does not actually justify your gaycentric emphasis.

Mark you offered procreation as the basis for the ineligiblity of related people. Other than that reason you can see no other reason to draw the line against related adults who consent to marry — if they are opposite-sexed.

You admitted that you have no reason on offer to limit related adults of the same sex.

Instead of running away and dodging all this time, why did you not say upfront that you are against any line that prohbits on the basis of procreation — same or opposite-sexed? That is where your rules of argumentation carry you, anyway, as I have pointed out only to be met with your antagonistic runarounds.

You also repeat that procreation is not forced upon people. Okay. So the risk of genetic defects does not suffice as a reason to disallow related opposite-sexed scenarios, according to your offered reasoning.

Again, you could have said that upfront without the runaround.

Mark said: “Does this mean a brother and a sister? A father and a daughter? Two sisters? [...] I could care less.”

That is not how it is under the man-woman basis of marriage law. Your thinking does not support a slippery slope argument but rather the leap over the cliff’s edge.

I think readers are well-served (in being well-warned) by your commentary. You emphasize gay this and gay that, and attack those who disagree with you on that very basis, then, you run away from that basis and reveal that you can think of no good reason for society to discriminate between nonmarriage and marriage.

Consent is bountiful for a very wide range of relationship types and kinds of living arrangements that the SSM campaign pretends their argumentation does not apply to; yet you have at least the honesty to finally acknowledge that the basis for the SSM idea does not justify limitations.

Of course, we could proceed to your concept of “consent” and “adult” and examine the ends of your thinking on the only two criteria offered by you for marital status. Could you state your concept of each — upfront?

Chairm: “There is no gay criterion for ineligiblity (sic) under the man-woman basis of marriage law.”
That very definition excludes gays. You really cannot be that blind.

Mark, show me the criterion in the CA marriage amendment. Show me the criterion in the CA marriage statute. It is not there.

The definition that you reject — the core meaning of the social institution of marriage — does not exclude anyone on the basis of gayness.

What you complaint really comes down to is the demand that the SSM idea be equated to the marriage idea. But your own comments have illustrated that these are profoundly different ideas. The marriage idea merits societal regard and special treatment in the law and the culture. The impositon of the SSM idea awaits justification from you or any other SSMer who demands special status based on gayness, as you have done again, in your most recent comment.

And readers might note that despite Mark’s repeated emphasis on gayness, as drive-by taunts and insults, that emphasis is lacking in his own attempted definition of his SSM idea.

This gayness criterion is hockus pockus — now you see, now you don’t — that is supposed to leave society spellbound and defenseless against the asserted supremacy of gay identity politics. Some SSMers, perhaps such as Mark, have been bamdoozled well and good.

Chairm: If “gay identity politics” means that people treat each others as equals, then it is superior to whatever it is you propose.

“The marriage idea merits societal regard and special treatment in the law and the culture.”
And why does it, in your eyes? And, if it does, why should it exclude SSM? There really is no difference between OSM and SSM.

Mark, according to you, SSM is gaycentric; and, according to you, SSM must enjoy a status that is superior to the rest of nonmarriage; and, according to you, there is no justification for discriminating between SSM and nonmarriage; and so, according to you, it is gay identity politics that drives your complaint and your porposed remedy.

What is the difference between nonmarriage and SSM? Plainly justify the unequal treatment in favor of gayness.

Chairm: “What is the difference between nonmarriage and SSM? ”
Well, despite the desire to tell you to go read my last dozen or posts (where I define this CLEARLY), I will do it one more time. Same sex marriage is marriage, non marriage is not marriage. So, the difference is: one is marriage and the other not marriage. Pretty simple.

Now, what I THINK you are trying to say is that gay individuals have the same right to marry as straight individuals, it just has to be a man and a woman. SO, a gay man can marry a woman and a lesbian a man. Is that what you are saying? If so, would you really want your daughter married to a gay man? Is that fair to either one of them?

But, yes, SSM should be superior to nonmarriage just as OSM is superior to nonmarriage.

I’ve read your commentary. You say little clearly except the part where consent trumps everything else, even the line drawn against incestuous marriage.

What makes something marrige? Perhaps your handwaving does the trick.

The law does not use identity politics to prohibit a man from marrying a woman. The SSM idea, by your own suggested example, is based on identity politics.

Attaching SSM to the special status of marriage is one thing, Mark, but your lack of justificaton for imposing that on society is quite another. You haven’t shown the maturity to accept your own limitations.

Indeed, you have shown you are in favor of no limitations on eligiblity for marriage in the law. On this we differ, just as the SSM idea and the marriage idea differ, as you have most emphaticaly declared.