What’s Wrong with the World

Well, the Lord told us that they are blessed who are reviled and persecuted for His sake.

We want the blessings, we gotta endure the persecutions, I guess.

For me, Scalia's dissent was the only good thing to come out of this ruling, if only for the forcefulness of his language. He didn't pretend that this was a matter of sincere disagreement over a constitutional issue, but instead said openly that this was a matter of championing a cause and finding a right that clearly did not exist previously, by people who really aren't patient enough to get their way by means of the actual processes in place to do so. At this point, pointing out the flaws in the legal "reasoning" feels little more than an intellectual exercise - it's not like those matter. The law will be whatever it damn well needs to be, clearly.

I also liked the commentary I read elsewhere, with people pointing out that one of the arguments at the time against a constitutional amendment was 'You already have the DOMA! You don't need anything else!'

"This is clearly inapposite: DOMA doesn’t even speak to sexual orientation in any manner. Certainly nothing in the law speaks to or imposes a “classification” based on sexual orientation. The history of discrimination imposed on the basis of sexual orientation should have no bearing here. "

The records from the time clearly indicate that DOMA was meant to express moral disapproval of homosexual marriage and homosexuality more generally. It created a separate classification for homosexuals because on that moral disapproval. The report from the House judiciary committee said this: "Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality." Justice Kagan used this fact to humiliate Paul Clement during oral arguments after he made an argument similar to the one you are making now.

How do you like that diversity and multiculturalism now? America is a Masonic creation. It was never Christian.

America is not only Sodom and Gomorrah reborn but also the Tower of Babel. Did not St. Paul warn you that lambs have nothing to do with wolves? Yet, you pay no heed.

Give it up. America is headed for destruction and nothing you can do will change it. It's foundation is evil, and it is bearing the fruit of its foundation.

I also liked the commentary I read elsewhere, with people pointing out that one of the arguments at the time against a constitutional amendment was 'You already have the DOMA! You don't need anything else!'

My thoughts exactly.

The records from the time clearly indicate that DOMA was meant to express moral disapproval of homosexual marriage and homosexuality more generally.

"Legislative intent" is one of the thinnest fallacies on which to hang an argument for the substance, meaning, and effect of a law. Legislative records show all sorts of things, and there are as many different "intentions" as there are votes in Congress. Tony's argument concerns the substantive effect of the law, which has absolutely nothing to do with what some tendentious committee report written up by a staffer has to say.

Concerning the reference in the DOMA opinion to Lawrence, I especially appreciated this scathing passage from Scalia's dissent:

The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

To see a Justice of the Supreme Court use the phrase "real cheek" regarding his fellow justices, and use the phrase so justly, gives the kind of satisfaction which is the only satisfaction men of good sense are going to get from this legal fiasco.

""Legislative intent" is one of the thinnest fallacies on which to hang an argument for the substance meaning, and effect of a law. Legislative records show all sorts of things, and there are as many different "intentions" as there are votes in Congress. Tony's argument concerns the substantive effect of the law, which has absolutely nothing to do with what some tendentious committee report written up by a staffer has to say."

The effect that DOMA has on broader society isn't really relevant if we are attempting to determine why it was passed. Laws often have unintended consequences, but that doesn't mean that we should let laws that were passed because of irrational animus survive. The point made by the author of this post seems to be that DOMA doesn't say anything about the moral status of homosexuality, but that argument doesn't work because we know exactly what DOMA was fore. DOMA was passed because there were a lot of people in Congress who thought homosexuality was wrong, and they wanted to protect states from being forced to recognize homosexual marriage and send a strong message about their disapproval of homosexuality. This was the *official* report by the House Judiciary Committee and it cannot be dismissed quite so easily. Although it is obviously true that different members of Congress had different reasons for supporting DOMA, it is not true that we cannot use our judgement and the evidence we have to figure out why legislators supported DOMA. If you think that the SCOTUS should never make such judgements you are making a very strong claim, and are implicitly undermining all forms of judicial philosophy. Originalism and most forms of textualism must be immediately abandoned if we take this point of view seriously.

If you think that the SCOTUS should never make such judgements you are making a very strong claim, and are implicitly undermining all forms of judicial philosophy. Originalism and most forms of textualism must be immediately abandoned if we take this point of view seriously.

In general, our society would be better off if they were forced to operate under the principle of least privilege. Most "constitutional law" is an attempt by the judiciary to get around the fact that the US Constitution is an incredibly strict, concise document which leaves the political authorities at the nation level with virtually no authority over the American people. Its intent is to undermine the very purpose of the US Constitution which is to create an extremely rigorous legal version of the PoLP for the national government that takes serious effort, and thus hopefully something most people concede is truly important, to amend.

So yes, trashing all legal philosophy would be a good start here. It's time to throw most constitutional law on the trash heap of history and start over with one simple question to judge all things constitutional: is this thing before my court based upon a literal authorization or an authorization that, applied in today's time, would be in the same group of things mentioned in the enabling provision?

Dunsany,

You say, "The records from the time clearly indicate that DOMA was meant to express moral disapproval of homosexual marriage and homosexuality more generally. It created a separate classification for homosexuals because on that moral disapproval"

Unlike Sage, I'm perfect fine with the legislative intent of "moral disapproval of homosexual marriage and homosexuality more generally." A well-ordered society should enact laws that reflect such moral disapproval. What I don't understand, and I'm quite sure anyone with a lick of Constitutional law sense doesn't understand as well, is why this moral disapproval suddenly creates a "separate classification" whatever that might mean? I suppose the law also creates a separate classification for murderers, illegal drug users, theives, rapists, etc.

I will not be bullied into acceptance of homosexual acts and for religious conservatives in this country the next great battle will be to protect our rights in the public sphere to argue for and act on our moral disapproval of homosexuality. Folks like Dunsany want to snuff us out.

The report from the House judiciary committee said this: "Congress decided to reflect and honor of collective moral judgment and to express moral disapproval of homosexuality."

Yes, because we all know that House committees are completely objective and free of bias, and have no agenda but the truth.

This is clearly inapposite: DOMA doesn’t even speak to sexual orientation in any manner.

It bans recognition of gay marriage, which is clearly aimed at gay people on the assumption that gay people would only be interested in marrying other gay people. It was also done in reaction to some gay marriage shenanigans in Hawaii or somewhere. This is essentially the same idea as literacy tests and grandfather clauses for voting in some southern states.

There's a huge confusion here between legislative intent and legislative motive. If the local town council passes a law that says you have to pick up after your dog, it *doesn't matter* if all the town councilmen especially were looking forward with glee to the annoyance this would cause to dog-owner Jones. The _intent_ of the law is to punish people who don't pick up after their dogs. The _motive_ may have been to annoy Jones, but that is irrelevant when considering issues of constitutionality.

Similarly, the _intent_ of DOMA was to define "marriage" for purposes of federal law. As Scalia points out, this is obviously necessary, because words in federal laws have to have meaning, and it was all the more necessary when the meaning in law varies among states and when there is ambiguity regarding which state law should be controlling. DOMA retained the status quo regarding the definition of the term "marriage" for purposes of federal law. That is the legislative intent.

Whether the _motive_ was moral disapproval of homosexuality (which I think is a fine and noble motive) or sheer irrational dislike of homosexual people (which I don't think is a fine and noble motive) is irrelevant. Similarly, if dog-owner Jones is of Chinese descent and the councilmen dislike him because he is Chinese, their pick-up-poop ordinance does not become an unconstitutional exercise in racial discrimination on the grounds of their dislike of Chinese people.

The court's "reasoning" in this DOMA strikedown is an absolute disgrace. The idea that the Constitution grants special protected class status to homosexuals so that there must not be "disparate impact" of laws upon them is an insane lie and yet is implied by the reasoning in this decision.

And Scalia is completely right to call out the dishonesty involved in invoking Lawrence after we were assured (in an unprincipled fashion) that Lawrence would never be used in such a fashion.

DOMA was passed because there were a lot of people in Congress who thought homosexuality was wrong

Um, no it wasn't. This is tantamount to arguing that federal regulation surrounding automatic weapons were enacted because of Congress' animus toward Italian gangsters.

There's a reason nothing like DOMA was passed until the year 1996, which disapprobation of homosexuality predates by thousands of years. DOMA was passed because there was a very real threat--as has now been realized in fact--that the coming push for homosexual marriages in the several states would impose formal recognition of those relationships on the entire country through federal law and regulation. DOMA sought to preclude that. The fact that many people in Congress think homosexuality is wrong was never a reason to pass such a measure into law until homosexuals began picking a fight over it.

As usual, the left is pretending that DOMA just came out of the clear blue sky, motivated by completely random, emotive effusions of prejudice. In reality, DOMA was a measure designed to protect Americans from having the democratic process short-circuited. And again, as usual, leftists are pretending all this happened in a vacuum, explainable only by an inexplicable animus that just suddenly burst onto the American scene for no reason.

Congress intended to express its disapproval Lydia, that wasn't just one of its motives, it was also one of the things that DOMA was designed to do (we know this because of official documentation). That being the case, I don't really think the distinction that you are drawing is relevant for the purposes of this discussion. As an aside, I and a lot of other would claim that all moral disapproval of homosexuality is irrational, regardless of what your religious views are. I think Christianity is irrational so I don't really have a problem labeling specific Christian beliefs as irrational.

"Um, no it wasn't. This is tantamount to arguing that federal regulation surrounding automatic weapons were enacted because of Congress' animus toward Italian gangsters."

Can you point me to official records saying that Congress banned automatic weapons in order to express animus toward Italian gangsters? I can point you to official documentation in which Congress makes it clear that DOMA is intended to express disapproval of homosexuality. You might not consider such disapproval a form of animus, but your comparison is absurd on its face and cannot be taken seriously.

This is the incident I mentioned earlier. It's interesting to see how much your arguments mirror Clement's.

http://www.politico.com/multimedia/video/2013/03/elena-kagans-doma-gotcha-moment.html

"As an aside, I and a lot of other [sic] would claim that all moral disapproval of homosexuality is irrational, regardless of what your religious views are. I think Christianity is irrational so I don't really have a problem labeling specific Christian beliefs as irrational."

We appreciate the honesty -- this is the end game for many (if not most) liberals. As Lydia has been pointing out in her wonderful serious of posts on the "zero-sum game" -- there is no compromise with these folks. It may be too late to pass a Constituional Amendment at this point to define marriage, but I think the Republican party should adopt this as one of its goals moving forward.

"I and a lot of other [sic] would claim that all moral disapproval of homosexuality is irrational"

Any bets on which sexual perversion will be the next one being pushed for cultural approval? Bestiality still has too much of an "ick" factor, and incest probably lacks the numbers for a concerted effort towards its acceptance. I'd say it's a toss-up between polygamy and pederasty, the latter probably being promoted via a lowering of the age of consent. As far as the former goes, there is no reason why, if two men can "marry," three shouldn't be able to.

Any irrationality here is being exhibited by those who think this will stop at homosexualism.

The portion of DOMA was unconstitutional because the federal government simply shouldn't be defining who is married. Once again conservatives cheer on centralized power against the federalism or subsidiarity they claim to support. If the government offers any federal marriage benefits (unnecessary in my opinion) then it should offer them on the basis of who the states say is married.

@NM

Even in light of things like this, they'll deny it's happening and then claim you're a bigot when you tell them it happened and you still oppose it.

Matt,

DOMA was necessary because our founding fathers never conceived of the myriad ways the full faith and credit clause could be used to circumvent federalism. Please explain in light of that clause precisely how you could have a federalist solution that wouldn't devolve into the inverse of DOMA by SCOTUS precedent.

Any bets on which sexual perversion will be the next one being pushed for cultural approval?

I think the key for looking at the 'next perversion pushed for cultural approval' is to ask which one can get its foot in the door with the public psyche already.

Ephebophilia, pederasty... there's a very obvious move there. Complain about the cases where an 18 year old has consensual sex with a 17 or 16 year old (or similar narrow age gaps) and could be open to statutory rape charges. Take a page from the LGBT playbook and talk about love almost exclusively, and how these laws are getting in the way of relationships between 'high school sweethearts' (it's just that one sweetheart is a senior and the other is a freshman). From then, inch it up: talk about how 'love knows no age'. Talk about how similar stigmas used to exist (senselessly!) between 50 year olds and 25 year olds. Get testimonials. Point out how silly it is since we accept now that children can have sex, so why are we punishing them for 'who they love'. It doesn't need to make any sense at all when thought through, because thinking things through is exactly what's avoided, except in the shallowest senses.

Polygamy, I think, is also a strong pick in that there's the cultural angle to it - it's already acceptable in a lot of countries! Why, even in the bible!

I actually think incest at some point is going to come up. Again, the initial focus will be on post-18-year-olds, and with contraception and abortion, concerns about offspring - which I can practically guarantee, will according to some people be the *exclusive* reason why incest was a taboo - are lessened.

I also think there are some pitfalls to consider.

* LGBT groups. You'd think they would be initially supportive of attacking various taboos further. But if you think about it, right now homosexuals occupy almost an exclusive niche as 'the oppressed, trendy sexual preference'. I don't think there would be a danger supplanting them with polygamy. Incest, possibly, because of the definite incest stigma. Bestiality, definitely, for the same reasons.

* Feminism. There's an obvious possible negative reaction on their part to the very idea of older men seducing and having sex with teenage girls. Of course, it could go either way - will 'teenage girls are entirely capable of deciding who they'll have sex with and when!' win out, or will 'they are victims being exploited by the patriarchy' carry the day? Similar problems for polygamy. Not to mention, really - I think polygamy would largely be taken up by religious parties who intended to raise a whole lot of children more than anyone else. Yet more patriarchy! cries, not to mention this may actually make the usual powers that be feel threatened. (Can anyone imagine someone marrying multiple wives largely for the sake of hedonism? If you're going to be like that, why get married to begin with. Similar for a woman marrying multiple husbands.)

Mike T, DOMA had two parts, one saying that federal recognition would only be given to marriages that consist of one man and one woman. That is the part that was ruled, rightly IMO, unconstitutional.

The other part is a limiting of the FF&C to not require states to recognize same sex marriages made in other states. This is a legitimate usage of Congressional authority.

I honestly don't think, if we accept homosexuality, there are any problems at all with bestiality. The objections to this have always seemed extremely weak to me (something about how an animal can't consent?), although it'll be interesting to see if this particular stigma gets past the radical animal rights activists.

Incest, I think, will be next now that we have contraception. That's always been the main objection I've heard regarding incest, so why not?

The portion of DOMA was unconstitutional because the federal government simply shouldn't be defining who is married.

This gets such a well-deserved eyeroll. I get bored explaining it again and again: DOMA defined the term "marriage" for purposes of _federal law_. This is no more unconstitutional on federalist grounds than the portion of the tax code that defines "dependent." When a term appears in a federal law, it has to have a definition. Given that different states are defining the term "marriage" differently, a definition for purposes of federal law is necessary. This has precisely zero objectionable about it, even from the most hawkish 10th amendment perspective. If there were some arising controversy over the definition of the term "honey" (and btw, I can point you to web sites that will tell you that the honey sold in stores isn't "real honey"), and if there were an entirely constitutionally unobjectionable federal law that referred to the transportation of honey across state lines, then there would need to be a legal definition of the term "honey" for purposes of federal law!

The income tax has (sad to say) constitutional authority. The income tax code refers to a spouse. Therefore the federal government needs a definition of marriage. End of discussion.

Any objections a 10th amendment hawk might have to other laws that refer to a spouse would have to be made on grounds other than the fact that they refer to a spouse! I don't think Social Security is constitutional, but this has precisely nothing to do with the fact that it refers to a spouse as a beneficiary! And since it _does_ do so and _does_ exist as a federal law, there needs to be a definition of the term for purposes of federal law.

So, no, there is nothing remotely consisting in federal overreach about the federal government defining terms for purposes of its own federal laws, whatever _other_ constitutional objections you might have to different specific federal laws.

Dunsany, there are too many levels of wrong to your position for me to have time to hit them all. But just one is that your entire position is premised on the idea that the constitution grants specially "protected class status" to homosexuals. Perhaps you don't think that your position is premised on that, but if it isn't, your argument is legally completely stupid. If Congress passed a law against selling unpasteurized milk across state lines and the legislative history showed that this law was intended to express (gasp) moral disapproval of selling unpasteurized milk, that would be as irrelevant as it could possibly be to the law's constitutionality, because Amish farmers don't have specially protected class status in constitutional law and precedent! And you can repeat that ad infinitum for laws against anything you like, from car-jacking to owning "assault weapons" to dealing federally controlled drugs. As Jeffrey S. already pointed out, _all_ laws disfavor some groups and favor others, _all_ laws divide people up into groups or classes. This in itself simply does not amount to a violation of the equal protection clause or else there could be no laws! (Current marriage laws even in states that recognize homosexual "marriages" show a moral judgement that groups of two in a "marriage" are better than groups of three or more.) As equal protection clause jurisprudence has evolved, the only group distinctions and disfavorings that are considered to render a law unconstitutional are those that disfavor on the basis of some "protected class status." This ruling, then, and your argument as well, amounts to an assumption that homosexuality is a form of specially protected class status. Otherwise it wouldn't matter in the slightest for legal purposes if one "purpose" or "intent" of the law was to "express moral disapproval" of homosexual acts.

Let's examine another layer of wrong, here. Suppose that the pretense is that homosexuals are _not_ being treated as a specially protected class and that the "rational basis test" is being applied. In that case, there is a vast, vast misunderstanding of (or bad faith application of) the rational basis test.

The rational basis test is supposed to be extremely easy to satisfy. It is supposed to be satisfied by all manner of silly and arbitrary state, federal, and local regulations, for example, including stupid regulations about how far away from your house you can keep your garbage bin. What it does _not_ mean is that some statute fails this test if it is in some way, shape, or form "based on" a feeling, intent, or opinion which the members of the court regard as irrational.

To make an analogy. Suppose that we were applying the constitutional rational basis test to the rules that some property owner has for the apartments he manages. Obviously, this would never actually happen in court, because the property owner isn't a government entity, but this makes it easy to think of examples. Suppose that the property owner has a bona fide cat phobia, and suppose that he spells it out in no uncertain terms in his explanation of his "no cats" rule for his apartments. He dislikes and fears cats and doesn't want any of them around his properties. At the same time, he points out, cats lower the value of the properties because they sometimes urinate on carpets, male cats create smells, they sometimes scratch the carpets and woodwork, they can harbor fleas, and in general they increase the need for maintenance. All of the practical reasons he has just given make the no cats rule _easily_ pass the rational basis test. It simply doesn't matter that he also said that he thinks cats are disgusting creatures and doesn't want them around and that he is a well-known cat-hater. That doesn't undermine the rational basis of his no-cat rule.

Similarly, Scalia pointed out that there are plenty of what he called (rightly) "boring" rational grounds for the marriage recognition section of DOMA, including (inter alia) standardizing the definition and avoiding complications where it is unclear which state law applies (state of residence vs. state of original "marriage").

Therefore, if one is applying the rational basis test only, DOMA passes with flying colors. Even if one thinks (which is absurd in itself) that a desire to express moral disapproval of homosexual acts reveals an irrational fear and hatred, that doesn't change the fact that there are plenty of rational grounds for the federal limitation of marriage for purposes of its own laws to marriage between one man and one woman.

I wasn't making a formal legal argument Lydia, just commenting on something that someone said about DOMA. That said, I do think that cases like Lawrence suggest that homosexuals are in fact a suspect class and would lead you to conclude that states have to recognize gay marriage. I think Scalia even said that when Lawrence was decided, but it has been years since I actually read his dissent.

I'm going to be blunt with you though, I don't really care about actual legal merits of the case for marriage equality anymore than Robert George cares about the validity of infamous Regnerus study. I care about winning and protecting homosexual couples, and I am perfectly willing to let Kennedy make things up if that means that I get the result I want. I think that a majority of people feel this way deep down, even if they won't admit to themselves.

Of course Lawrence would lead on to think that the majority in Lawrence thought that homosexuals were a specially protected class! The Constitution, however, would not lead one to think that homosexuals are a specially protected class!

But then, you don't care about that, because, as you frankly admit, you're happy to make things up.

If it prosper, none dare call it treason, and all that.

I admire (in a sense) your willingness to admit that you favor lying about the meaning of the Constitution in what you regard as a good cause.

But don't make unfounded slurs against Robert George while you're at it. Only small-minded people actually like to think that everyone else is on their own level.

and I am perfectly willing to let Kennedy make things up if that means that I get the result I want.

We already knew that.

Lawrence is still good law, which means that homosexuals are a suspect class under current law. Are you saying that they should have ignored precedent in the DOMA decision?

George and the organizations he is linked to proved that they were incredibly dishonest during the Regnerus affair. I have no doubt that he thinks he is doing what is right, though.

Are you saying that they should have ignored precedent in the DOMA decision?

If they were actually interpreting the Constitution, they should have overturned Lawrence. Absolutely.

Let's also please note that Lawrence itself claimed that it had no bearing on such cases as the DOMA case is. Hence, it would have been appropriate even if they weren't going to overturn Lawrence to ignore it here. That would simply be taking the majority in Lawrence at its word.

Of course, we know that the word of such a lawless court isn't worth the tissue (of lies) paper it's written on, which is the point Scalia was making in the quotation I gave above.

I get bored explaining it again and again

I get bored too, especially when trying to explain federalism to non-federalists like yourself. But as the states have already defined who is married, there is no need for the federal government to have a separate definition. A person cannot reside in two different states, so the fact that different states have different definitions is irrelevant.

But yeah, boredom. Culture warriors like yourself don't care about federalism anyway. Actually, I kind of enjoy the indignant hysteria, so keep it coming.

A person cannot reside in two different states, so the fact that different states have different definitions is irrelevant.

Which means that it is given in the stars that whether Buffy and Dina are considered "married" or not depends on the state of residence as opposed to the state in which they got their license? Y'know, I doubt the culture warriors on the left side are going to be happy about that conclusion. But of course it raises the whole issue that DOMA would have taken care of--namely, which state law should be controlling for federal purposes where two possible state laws might apply.

So nice to know that God has revealed the answer to this legal question to Matt, making DOMA completely irrelevant.

Oh, wait, that wasn't what you meant? You don't actually want Buffy and Dina to have to live and die all their lives in a state that recognizes homosexual "marriage" in order to get the federal benefits thereof? Hmm, then you're going to have to change your claim.

Look, I made an entirely clear argument, and you're just being dense. There is nothing _remotely_ anti-federalist about a federal law that defines terms used in other federal laws for federal purposes. Nothing whatsoever.

But when one thinks in shallow slogans which one hopes to throw at conservatives, one finds it hard to admit that one has been out-argued on the legal merits.

"George and the organizations he is linked to proved that they were incredibly dishonest during the Regnerus affair."

Then why don't you file a grievance with Princeton University and request that George be investigated? "Incredible dishonesty" on academic matters should get you fired, even if you have tenure.

You're blowing smoke, of course. This is why you won't actually act as if you really believe this.

As for Regnerus, he published an academic paper, which was peer-reviewed. It came to conclusions you didn't like. Well, welcome to the academic world, brother. You know how we deal with that in the academy: we write rebuttals and submit them to peer review to the journals that publish the ideas we want to rebut. People who don't respect reason, critical thinking, or tolerate disagreement use other means. Those means--which have a fascist quality--were employed by you and your friends. Rather than engaging his arguments, you tried to destroy him. Only people who know they don't have arguments or reasons--or don't care about arguments or reasons--resort to such disreputable and dehumanizing tactics.

The fact that they may work is very sad. Not only because it is an assault about reason and truth; but it deforms your soul and turns you into what you claim to despise: an intolerant, bigoted, know-nothing.

I get bored too, especially when trying to explain federalism to non-federalists like yourself. But as the states have already defined who is married, there is no need for the federal government to have a separate definition. A person cannot reside in two different states, so the fact that different states have different definitions is irrelevant.

Matt, this sort of highlights why DOMA was actually a good law. Take pension rules. Federal law mandates that a pension plan provide a spousal benefit. Imagine, then, a guy who works all his life for a small outfit in Omaha in Nebraska, where all the employees reside in Nebraska, where there is no gay "marriage" permitted. The guy retires, then goes to Las Vegas and "marries" his boyfriend, and returns home. The pension plan (rightly) says that he is not married for purposes of federal pension law under DOMA. When he moves to Colorado, which by that time DOES have gay marriage, the plan still says he is not married - for purposes of pension law because it is a federal law. The matter is clear.

Now that DOMA is gone, what's the situation? While the guy lives in Nebraska, is he married or not? Well, he didn't get married in Nebraska, but he resides there. (There should not be valid marriage law that allows a person to marry outside his state of residence, but Las Vegas allows it, foolishly). Nebraska doesn't recognize his marriage, but Nevada does. Does his pension plan recognize his "marriage" or not? Suppose Nevada passes a law that repudiates recognition of gay "marriage", does the pension plan now reject his marriage because Nevada does? Suppose his partner gets bored and moves to Massachusetts, but they do not get a divorce. With one residing in MA, and the other residing in NE, are they "married" for federal pension law or not?

The matter is utterly unclear. Even if someone were to come up with a series of answers, it appears that they would depend on current status of state laws (for all 50 states) and so the pension plan would have to keep up with all the changes in state law continuously - even though the company is a little Omaha company that never does business outside Nebraska. I don't think this is effectively a win for federalism and state authority.

I am pretty sure that even if Kennedy didn't bother to think it through, Kagan and Ginsburg did, and they WANT all these problems to crop up, so that they have a "perfectly good" rationale for overturning any federalist claim to preserving state authority in the matter.

States can have one definition of disability, and federal law can have a different one for federal purposes, without the feds running roughshod over state's rights to define what they mean by it.

Just for cynical laughs, Roberts' spurious principle of "equal sovereignty of the states" was created from thin air by Roberts in a previous decision (Northwest Austin Municipal Utility District v. Holder), which he then quoted from extensively to justify his opinion against the VRA requirements. Obviously this principle vanished as soon as DOMA was on the table.

As for Scalia's emissions, he made some good arguments about standing, but they were going to have to deal with these issues eventually. Having the case 'fast-tracked' shouldn't have been as upsetting to him as it was. He's almost becoming a caricature of a cranky old man (argle bargle?).

Lydia, do you have any respect for precedent at all or do you think judges should disregard it entirely?

"As for Regnerus, he published an academic paper, which was peer-reviewed. It came to conclusions you didn't like. Well, welcome to the academic world, brother. You know how we deal with that in the academy: we write rebuttals and submit them to peer review to the journals that publish the ideas we want to rebut. People who don't respect reason, critical thinking, or tolerate disagreement use other means. Those means--which have a fascist quality--were employed by you and your friends. Rather than engaging his arguments, you tried to destroy him. Only people who know they don't have arguments or reasons--or don't care about arguments or reasons--resort to such disreputable and dehumanizing tactics.

The fact that they m"

His work was thoroughly discredited, he wasn't attacked merely because people disliked his conclusions like that Richwine guy who was working for the Heritage Foundation was.

"His work was thoroughly discredited, he wasn't attacked merely because people disliked his conclusions like that Richwine guy who was working for the Heritage Foundation was."

That's nonsense, and you know it.

"Completely discredited," by whom? People who have rebutted him in academic journals, having gone through peer-review themselves? Of course not. They were bloggers and some professors who signed a petition and filed complaints. But that's not a rebuttal, let alone a discrediting. That's a mob. This is precisely why the academy has peer-reviewed journals, rather than angry blogs and online petitions by which to conduct and deliver its research. Anyone can create a petition, make accusations on a blog, and then have their friends reference those very things as "proof" that the grievances are right, which is precisely what you're doing here. But that's not an argument, let alone a deliverance of reason. It's a rant. And rants don't count as actual rebuttals.

You need more than activist professors and angry bloggers as evidence that someone has been "discredited."

I'm going to be blunt with you though, I don't really care about actual legal merits of the case for marriage equality...care about winning and protecting homosexual couples, and I am perfectly willing to let Kennedy make things up if that means that I get the result I want. I think that a majority of people feel this way deep down, even if they won't admit to themselves.

Dunsany, if you cared about "protecting" gay couples, you probably would tell them not to have sex because it causes health problems (leaving aside the moral damage).

In any case, you reveal yourself as a moral midget, as well as someone who doesn't deserve to participate in civilized society. Civilization depends upon government, which in turn depends upon moral people willing to restrain themselves from doing what they want or feel like in favor of enforcing the law and justice. When those in office stop doing that, we return to the rule of the strong over the weak, which is not civilized society.

What you "imagine the majority" are like is barbaric. Somehow, I don't think you would want to return to the days where barbarians did what they wanted to gays because "might makes right".

One more thing, if Regnerus' critics had such great rebuttals, why go the punitive, person-destroying, blogger, petition route? Why not do the decent thing and publish it in the esteemed journal that Regnerus published his in? Why not subject your rebuttal to the same rigors he did?

Lydia, do you have any respect for precedent at all or do you think judges should disregard it entirely?

There might be a grey area where a precedent is not ludicrously wrong where it could be left standing if it is merely sorta wrong or probably wrong. But where a precedent is ludicrously wrong, I tend to think it should be overturned. If one group of people tells utter lies about the meaning of the Constitution, those lies shouldn't be left in place simply because that particular group of liars happened to be wearing black robes that year.

Moreover, the left takes this attitude _constantly_ toward precedent, as in the case of Lawrence which overturned a precedent from 1986.

In any event, as I pointed out, Lawrence claimed that it wouldn't be applied to a case like DOMA, so the question of overturning Lawrence could have been set aside for the nonce for those who break out in hives when anyone utters the phrase "stare decisis."

But of course that assurance in Lawrence was just another propagandistic lie, wasn't it?

After a while, when there are so many of those floating about, it becomes a real joke even to talk about stare decisis. Gee, what decision should we let stand? The rubbish about a liberty interest in committing acts of sodomy or the cynical ploy about that decision not applying to government legal recognition of homosexual relationships? What to do, what to do?

That's the result of power politics played under a patina of legal pretense.

Don't get on your high horse with me about stare decisis when it's precisely _your_ attitude of "making stuff up," put into practice by activist judges, that has put us in this situation.

"Dunsany, if you cared about "protecting" gay couples, you probably would tell them not to have sex because it causes health problems (leaving aside the moral damage). "

Eating foie gras also causes health problem, but I can't see myself telling people to avoid it. Sometimes doing something you love is more dangerous than not doing it, and that's okay. I don't really buy that guys can't practice safe sex though.

"One more thing, if Regnerus' critics had such great rebuttals, why go the punitive, person-destroying, blogger, petition route? Why not do the decent thing and publish it in the esteemed journal that Regnerus published his in? Why not subject your rebuttal to the same rigors he did? "

"What’s particularly notable about this brief is the time it takes to unpack everything that was flawed about Mark Regnerus’s study that claimed that children who had parents in same-sex relationships fared worse. The study has been called “bullshit” by an internal audit of the journal that originally published it, and even Regnerus has admitted that he really didn’t capture any valid information about gay fathers or lesbian mothers. Nevertheless, conservatives repeatedly cite it as evidence against same-sex parenting, including in the arguments for DOMA and Prop 8. In brief, here was how ASA debunked the study:"

http://thinkprogress.org/lgbt/2013/03/01/1657891/sociologists-scotus-parenting/

There are supporting links on that page.

"But of course that assurance in Lawrence was just another propagandistic lie, wasn't it?"

It absolutely was, I'm not going to dispute that. I knew that Lawrence would eventually lead to gay marriage being forced on recalcitrant states and I couldn't be happier about it. With regards to judicial precedent, I wasn't trying to get on a high horse, I just wanted to know what your views are.

Another aspect of the case, little commented upon: The original court case for DOMA pitted a taxpayer against the IRS, where the IRS withheld a refund because (correctly) under DOMA, the IRS was not permitted to treat the taxpayer as having been married.

Here's what's crazy: although the District Court sided with the taxpayer and ordered the government to make the refund of taxes, and the Justice Department agreed with the taxpayer and refused to appeal, the government refused to pay the refund.

There should never have been an appeals court case, nor a Supreme Court case on the matter. What should have happened is that upon being ordered to pay the refund, the government should have paid the refund, or should have appealed. Properly, upon hearing that the government refused to pay, the District Court judge should have held Eric Holder in contempt of court, possibly even the president. The government cannot go around saying "yes we agree with your decision, but we still aren't going to obey it". That's contempt of the judiciary. Of the two cases to refuse to hear, this one is the one where more clearly a mistake was made. Whether or not Congress properly had standing to be heard in defense of its law, the Justice Department was in the wrong. They should have been taken to task by the judiciary BIG TIME. Instead, the Holder's (In)Justice Dept got away scot free with a clearly illegal, clearly wrongheaded ploy.

I am of two minds about whether BLAG should have had standing. I don't necessarily think that BLAG has suffered an injury that should get an appeal. But in general, I think our judicial system (as well as other branches) is slightly off kilter for not having an existing set of mechanism for each branch to advise the others, short of new law, on the meaning of their prior acts. I see this between Congress and the administrative branch: after Congress passes a law, and the administrative department that makes the law effective starts to write regulations, I have seen them break down into complete ineffectiveness because they SIMPLY CAN'T MAKE REGULATIONS that are clear and coherent that they are SURE put into play Congress's intent. Either the intent is too vague, or there is no way to make that intent coherent with various different pieces, or whatever. I have sat in on regulation-writing sessions, 7 years after the law is passed, that cannot solve the question how to put the law into practice. There should be a simplified channel that allows the administration to check back with Congress and clarify things (without having to remake the law altogether) - but there isn't. Likewise, I kind of think that Congress should be able to come into court and defend its own law, regardless of whether it has suffered any "injury" in the standard sense.

But whether BLAG was granted a hearing or not, the JUSTICE department should have been penalized for its basically fraudulent behavior. They were simply manipulating the system to get the Supreme Court to do something.

As for Scalia's emissions, he made some good arguments about standing, but they were going to have to deal with these issues eventually. Having the case 'fast-tracked' shouldn't have been as upsetting to him as it was.

Step2, I thought that fact, that they were going to have to deal with the issue eventually, would have more justified accepting Prop 8 than DOMA. DOMA is one law only, for federal purposes, whereas Calif is one of 50 states. If they didn't accept CA's case, they were going to get one from any of a number of other ones.

This situation sheds more light on a problem that most people probably never noticed before, I certainly was only vaguely aware of it until the past few years: if a state government doesn't pursue an appeal of a lower court overturning a law, nobody in the state can really do anything about that. While there is obviously some good reason for that, it does present some real injustices, as Prop 8 makes clear: when enough of the people get together to force a change in law by referendum because the state government won't (or can't) do it, the state government in its administrative branch alone can STILL block the people by not defending it in court.

In the Prop 8 case, the Supremes "vacated and remanded" the 9th circuit verdict. I think that the "remanded" part is, effectively, an instruction to them: they are instructed to find that the initiative proponents have no standing, and simply refuse to accept the case for hearing. I wouldn't think that this is an action worth "remanding" to the circuit court of appeals, given that all the that court did was affirm the district court's decision. By requiring the 9th Circuit to refuse the case, they effectively leave the district court's verdict in place anyway, so what is the point of "remanding"? Seems an empty waste of paper. On the other hand, I am in favor of almost ANYBODY telling the 9th Circuit that they got it wrong, again.

I think that a majority of people feel this way deep down, even if they won't admit to themselves.

At first glance, I took this as an argument that most people don't mind Kennedy making things up about homosexuality, which is obviously not true. However, if you mean to argue that most people in general don't mind if their side of a given question is a little dishonest as long as the result is favourable, then I agree. Certainly I feel that way about homosexuality - I'd have a hard time feeling very guilty about anything that pushed the issue back in the closet, even if it was slanderous lies, although I can acknowledge that that's not very moral of me.

A little dishonest? Heck, Samson, Dunsany is open to pretty much any degree of dishonesty if it advances his cause. But I certainly think there are people who are not fine with professional dishonesty, which is what he's talking about here. We're not talking about lying to the Nazis that the Jew isn't hiding in your cellar or something. We're talking about people in positions of trust and authority being dishonest with the public about what they are professionally tasked to do, and being so to advance a political agenda. If "most people," including most people on my side of the issues, are perfectly fine with that, God help us.

"A little dishonest? Heck, Samson, Dunsany is open to pretty much any degree of dishonesty if it advances his cause. But I certainly think there are people who are not fine with professional dishonesty, which is what he's talking about here. We're not talking about lying to the Nazis that the Jew isn't hiding in your cellar or something. We're talking about people in positions of trust and authority being dishonest with the public about what they are professionally tasked to do, and being so to advance a political agenda. If "most people," including most people on my side of the issues, are perfectly fine with that, God help us."

It's all a matter of degree Lydia. Suppose that a justice living in the 1800s had the power to end slavery by issuing a dishonest ruling. Most modern Americans would probably say that such dishonesty would be entirely justified because slavery is a great moral evil, and I assume that is also your position. What is the difference between that situation and this one? The only real difference is that you don't consider banning homosexual marriage a great moral evil, and that doesn't have anything to do with whether or not professional dishonesty is justified in pursuit of a just cause.

Most modern Americans would probably say that such dishonesty would be entirely justified because slavery is a great moral evil, and I assume that is also your position.

NNNNOPE. Emphatically no. That is not my position. Now, you can spin some story where you make it not clear that it really is a dishonest ruling and cloud the issue that way, but if it definitely, unequivocally is a dishonest ruling, and the judge knows that it is, ab-so-lute-ly not.

" NNNNOPE. Emphatically no. That is not my position. Now, you can spin some story where you make it not clear that it really is a dishonest ruling and cloud the issue that way, but if it definitely, unequivocally is a dishonest ruling, and the judge knows that it is, ab-so-lute-ly not."

If you think it would better for such a justice to allow slavery to continue then your moral system is even more flawed than I thought it was. It's interesting that you think this given that you seem to think it would be moral to stop Jews from murdered in the holocaust. Do you think that it would have been morally wrong for a German official to lie to his superior to protect Jews? Your position doesn't make a lot of sense.

Lydia did not say she was okay with lying to the Nazis, she just said the position we're currently in is nothing like that.

This is the classic "murderer at the door" scenario. I've been hit over the head with it one too many times.

Would I lie to the Nazi? Probably. SHOULD I lie to the Nazi, which is the more important question in this context? No. Should I give over the Jew? Emphatically no. I'd go over the whole slew of whoud've-should've-could've's, but there really isn't a point. That's my position, and if you want to see it hashed out, try these articles by Dr. Feser:

http://edwardfeser.blogspot.com/2010/11/there-is-no-santa-clause.html

http://edwardfeser.blogspot.com/2010/11/is-it-wrong-to-lie-to-hal.html

http://edwardfeser.blogspot.com/2010/11/murderer-at-door.html

It's all a matter of degree Lydia.

Get it, Lydia? It's okay to lie, but only if it's reeeeaaaalllly important. Boy, it's a good thing we have consequentialism to fall back on when wrestling with these difficult moral conundrums. Otherwise, who knows what uncomfortable conclusions we might have to come to?

I have a post waiting in moderation because it contained some links to Dr. Feser's blog, but it's always fun when people assume what their opponent's position is in advance.

Most modern Americans would probably say that such dishonesty would be entirely justified because slavery is a great moral evil, and I assume that is also your position. What is the difference between that situation and this one?

Let's see. In one case we have idiot businessmen literally enslaving people for secular economic interests, beating them and crippling them when they get out of line.

In the other case, we have some men and women, many of whom have tremendous confidence problems such that they are utterly unable to cope with any form of criticism and rejection, demanding that not only do they have to engage in a farce of a ceremony and struggling mightily to ensure the world takes it seriously.

Really, don't use comparisons like this. You honestly thing the situations are anything close to comparable? I mean, I'm sure that among a certain class of Kool-aid drinker it does, but to most other people - in fact, I think to a sizable number of people who are neutral to supportive of gay marriage - the 'slavery/holocaust -> opposing gay marriage' move is completely crazy, and actually really funny.

I can just picture some guy running out of a bakery after having his order for a gay two-grooms-on-top wedding cake turned down, crying hysterically and screaming "NOW I KNOW HOW ANNE FRANK FELT".

Get it, Lydia?It's okay to lie, but only if it's reeeeaaaalllly important.

Exactly. Moral precepts are supposed to get stronger as urgency increases, not weaker because otherwise they are not precepts at all, but merely platitudes. How can a discussion even continue when one party has made explicit an endorsement of lying?

"Exactly. Moral precepts are supposed to get stronger as urgency increases, not weaker because otherwise they are not precepts at all, but merely platitudes. How can a discussion even continue when one party has made explicit an endorsement of lying?"

You're in Nazi Germany Scott, and you have a Jewish family hiding in your attic. One day an SS officer knocks on your doors and asks if you think any Jews might be hiding in the neighborhood. How do you respond?

You're in Nazi Germany Scott, and you have a Jewish family hiding in your attic. One day an SS officer knocks on your doors and asks if you think any Jews might be hiding in the neighborhood. How do you respond?

Morally acceptable options: Hiding the Jews so well that you won't have to lie ("Come on in and search my home."), silence, dodging the question, telling them to get bent and slamming the door in their face, evangelizing, stalling for time while the Jews can make an escape. This is all just off the top of my head.

Morally unacceptable options: Lying, betraying the Jews.

When we lie we fear Men rather than God. It's a craven and pathetic Gollum-like existence that isn't worth living.

"It absolutely was, I'm not going to dispute that. I knew that Lawrence would eventually lead to gay marriage being forced on recalcitrant states and I couldn't be happier about it."

Here we see the tyranny of liberalism unmasked: the recalcitrant will have this moral idiocy forced on them "by whatever means necessary." And don't think this just means verbal coercion, i.e., the use of propaganda and lies. Tolerance will be enforced, at gunpoint if necessary. This is precisely what Flannery O'Connor meant when she stated that government by tenderness leads to concentration camps and gas chambers.

From this piece by Maclin Horton:

http://lightondarkwater.typepad.com/lodw/2013/06/the-party-is-victorious.html

~~~the court doesn't acknowledge the existence of arguments against same-sex marriage on the merits, instead reducing opposition to, in effect, simple meanness. This is, as we all know, exactly the line of the SSM movement, and the fact that it has been adopted by the Supreme Court means serious problems for Christians. Obviously, one source of this "meanness" is the Christian religion, and, just as obviously, the only reasonable posture of government toward people engaged in meanness is to restrain them. In effect, the biggest legal gun in the American arsenal is now pointing straight at Christians who adhere to the idea that the word "marriage" applies to something that happens between men and women, an idea that was universal in the human race until just the other day, historically speaking.~~~

Liberals seem to have forgotten Orwell, or if they've not forgotten him they believe his observations do not apply to them.

(That's another aspect that's fascinating -- the sheer hubris of the thing. Five judges overturn a universal, historical human understanding of the basic human societal relationship and legions of knuckleheads applaud it. Reminds me of the Woody Allen bit about mathematicians discovering that for hundreds of years we've been writing the number 5 backwards, and based on this we now have to completely refigure our entire mathematical system. Except that Woody wrote it as a joke.)

~~I can just picture some guy running out of a bakery after having his order for a gay two-grooms-on-top wedding cake turned down, crying hysterically and screaming "NOW I KNOW HOW ANNE FRANK FELT".~~

Well, gays are nothing if not dramatic! LOL.

Dunsany the moral microbe, go and read the links MarcAnthony gave you. We hashed that very question over from 30 different angles, and we are not going to do it AGAIN, in this thread. We have already heard your theory, propounded by people much more capable than you, and we have pretty much rejected it as morally and philosophically incoherent. This thread will remain about the SC's decision on gay "marriage", not on lying to further your goals.

It's all a matter of degree Lydia. Suppose that a justice living in the 1800s had the power to end slavery by issuing a dishonest ruling. Most modern Americans would probably say that such dishonesty would be entirely justified because slavery is a great moral evil, and I assume that is also your position.

Even if you believe this is justified, you have to deal with the law of unintended consequences. If they don't arrive at the decision correctly, it can just as easily hurt the ex-slaves as help them. I have been having an off and on argument with a black woman in my office about George Zimmerman over this. She wants him crucified because she thinks it's purely about race and profiling and won't even entertain his defense's arguments about Martin. I've pointed out to her how thin the grounds for prosecuting Zimmerman actually are and what'll happen to young black men if she gets her conviction. Doesn't matter to her. She wants him punished because she won't even look at the big picture; she just sees a terrible evil that needs to be righted at any cost even if it means obliterating the right of self-defense for young black men.

"Morally acceptable options: Hiding the Jews so well that you won't have to lie ("Come on in and search my home."), silence, dodging the question, telling them to get bent and slamming the door in their face, evangelizing, stalling for time while the Jews can make an escape. This is all just off the top of my head."

You're fighting the hypothetical Scott. Let's assume for the sake of argument that the only way to save the Jews is to lie. Is is moral to lie in that situation? If your answer is still no your moral system is essentially worthless as far as I am concerned.

Furthermore, the other side of your argument did precisely what you described in Dred Scott and Plessy v Ferguson. They twisted logic, reason and ethics into a knot to advance what they instinctively felt was right. We all paid the consequences for that in the form of the Civil War, Reconstruction and Jim Crow.

"

Dunsany the moral microbe, go and read the links MarcAnthony gave you. We hashed that very question over from 30 different angles, and we are not going to do it AGAIN, in this thread. We have already heard your theory, propounded by people much more capable than you, and we have pretty much rejected it as morally and philosophically incoherent. This thread will remain about the SC's decision on gay "marriage", not on lying to further your goals.
"

That's fine, but I would suggest that you show a bit more charity when posting things on the internet. You're a Christian, aren't you?

Morally acceptable options: Hiding the Jews so well that you won't have to lie ("Come on in and search my home."), silence, dodging the question, telling them to get bent and slamming the door in their face, evangelizing, stalling for time while the Jews can make an escape. This is all just off the top of my head.

Don't forget the basic *political* approach: fight back. I don't mean in the voting booth or the newspapers, I mean with bullets. Prepare to go out in a blaze of glory with your own rifle (or better, machine gun and a few grenades), and maybe even the sniper support of a couple of your neighbors whom you trust. Sure, you'll probably be dead, but imagine if every decent-hearted German had taken out just 3 Nazi thugs before his demise.

This is a further passage from Maclin Horton, as NM linked us to:

In any case, the hope that there can be any but sporadic and rear-guard harassment of this juggernaut in the political realm seems slim indeed. The Party is victorious; mere language, inherently unstable and disputable, was never going to be enough to restrain it once those in power felt themselves emancipated from the principles and assumptions that underlay the words.

Dunsany, a link from a blog that reposts a press release regurgitating prior studies that are less rigorous than Regnerus' is a refutation of Regnerus?

Sorry, but that is not how one refutes a study. One actually, well, directly refutes the study by engaging its arguments, in the same level of peer-review in which the study was published.

A press release by political activists who refuse to subject their rebuttal to the rigors of peer-review simply does not count.

Would you accept a press release from the Discovery Institute listing a smattering of prior articles as a "refutation" of Darwinism? Of course not, and you shouldn't.

However, it's probably the case that social science is irrelevant to this question, since it is a moral issue about what children are entitled to. Is a child entitled to a mother and a father? That is, if someone intentionally brings a child into the world knowing that the child will not have a father or a mother, how is that in principle different than intentionally bringing a child into the world without a lung or cerebral cortex? We consider it a tragedy when we hear of a child's father or mother abandons her, even if this occurs when the child is a newborn and is raised by two grandparents, uncles, aunts, etc. Why is it then okay to intentionally do such a thing to a child--to do so with complete premeditation? To plan, arrange, and financially support motherless and fatherless children?

This thread will remain about the SC's decision on gay "marriage", not on lying to further your goals.

Pardon me for indulging the rabbit trail. Allow me to leave on a question for pondering rather than discussion. For a while we've been documenting the real examples of abuses by the homosexual agenda and have been told that we are just being paranoid and/or have a persecution complex. Well, we already have an example of one freely admitting it's ok to chose lying (an intrinsically immoral act) to get what you want. The question is what other intrinsically immoral acts would they chose, or perhaps better: Are there any acts they wouldn't choose, and on what principle that wouldn't collapse under scrutiny?

That's fine, but I would suggest that you show a bit more charity when posting things on the internet. You're a Christian, aren't you?

Awwww, poor wittle Dunsany, I called him a name. Oh, the indignity!

I WAS being charitable. I didn't ban you from the site, now did I? Also, instructing the ignorant is a spiritual work of mercy, and mercy is a fruit of charity.

Woe to you, teachers of the law and Pharisees, you hypocrites! You are like whitewashed tombs, which look beautiful on the outside but on the inside are full of the bones of the dead and everything unclean.

Pause for a moment and remember what happens to dead bodies before they become bare bones: they are full of rot, corruption, bacteria, maggots and flies. Christ wasn't being all nice, lovey-dovey, go along to get along with those guys, he was calling them out. He was using highly colorful language to describe them, their errors and their sins. Like the master, so the disciple...

Sure, you'll probably be dead, but imagine if every decent-hearted German had taken out just 3 Nazi thugs before his demise.

Amazing how often people regret not doing this...

“And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?... The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt! If...if...We didn't love freedom enough. And even more – we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.”

The moral of the story is that if you find yourself having already lost all of your rights except your right to live, there's only ever one reason they'll ever come after you at that point.

Mike T. makes a comment which Scalia has often made--namely, if we knowingly pervert the mechanisms and institutions of public justice for our own end, how can we at all assure that it won't turn around and bite us the next time around? "Might makes right" is exactly what things like professional integrity were supposed to _avoid_, because "might makes right" is inherently an unstable and anarchic position and protects no one from anything. (Robert Bolt's character Thomas More makes the same point.)

By the way, I can't resist saying that next time some of my anti-democracy friends start saying that any crazy decision of SCOTUS is the fault of democracy, of all things, I'm going to be tempted to point them to Dunsany's comment on this thread about Lawrence "being used to force homosexual marriage on recalcitrant states."

Let us do evil that good may come...where have I heard hta before?

Most modern Americans would probably say that such dishonesty would be entirely justified because slavery is a great moral evil

So much the worse for most modern Americans. But this is pointless to discuss with you. By your own "reasoning," whatver most Americans at any given time believe is, ipso facto, right. So why hate on past generations that morally disapproved of homosexuality? Why hate on countries that believe homosexuals should be stoned? I mean, if that is what their majority believe, then it must be right for them.

One practical legal question that is confusing to me and I'm hoping one of our readers might be able to answer. How come the Prop 8 case could be heard by a federal judge in the first place but then once he ruled on the case SCOTUS determined the plantiffs didn't have standing? If the federal court could hear the case in the first place it seems logical that SCOTUS should have to hear the appeal? What am I missing?

Here's my understanding: SCOTUS told the 9th circuit that it also should not have heard the case. I believe SCOTUS is saying that only the very first court should have heard it. Now, as far as I can tell, that doesn't really answer your question, because Walker, the judge in the first court who heard it (the district court) is still a federal judge. Here appears to be the claim in answer to that question: It was opponents of Prop. 8 who were filing the initial suit. They named the governor, as the representative of the State of California, as the defendant. They won the first round. Now, the issue of "standing" only arose at that point. There was no question that the governor was an appropriate person for them to sue if they were going to bring the case at all. Once they won the first round, only someone having "standing" could appeal the ruling. The actual defendant, the governor, refused to appeal. Therefore the ruling of Walker would be left in place unless someone with "standing" could be found to appeal. SCOTUS ruled this week that those who did appeal lacked standing and hence that their appeals were invalid, so the whole thing simply reverts to the initial decision in the first court, because no appeals were possible since no one with standing could be found to appeal that ruling.

That's the claim anyway. It has the very strange result that a governor can apparently veto a citizen referendum that both he and special interest groups dislike, which is something he couldn't ordinarily do, by the following devious process: Wait for the opposed interest group to sue, naming you (the governor) as defendant. Wait until a ruling at some level is handed down favorable to the side of the interest group (which you, the governor, also favor). Then refuse to appeal the case any further, leaving that desired ruling in place. This could be played more than one way. For example, if the initial court judged against the interest group, the governor's office could appeal to the next level and stop there if and only if the ruling went the way they (and their interest group conspirators) wanted. Play the "defendant" just long enough to get the plaintiff (who is really in cahoots with the defendant) the desired ruling.

According to Roberts:

The District Court allowed petitioners—the official proponents of the initiative, see Cal. Elec. Code Ann. §342 (West 2003)—to intervene to defend it.

That is, the proponents of Prop 8 intervened even in the first trial, at the district court level. If the Roberts majority is correct, even that should not have happened.

The SC "vacated and remanded" the lower decision. Initially I thought that applied to just the Circuit Court of Appeals' decision. I guess one way to read the effect of the Supremes decision to "vacate and remand" is that it applies all the way down to the District Court's decision, to require them to vacate their decision and simply refuse to try the case. If that's so, then the case would fail to have anyone on the other side litigating against the plaintiffs, which (as I understand it) results in an automatic judgment in favor of the plaintiffs. Such a result would end up vacating the arguments that the district court judge (Walker) used, while leaving the same effect in place. This might actually do some good, because Walker's arguments would then not be precedential in any respect in any other proceedings in federal court. Given that Walker is gay and has an obvious potential bias in favor of wanting to find Prop 8 unconstitutional, it would probably be a good thing to dissolve any precedential effect of his opinion.

Tony,

This is interesting: "I guess one way to read the effect of the Supremes decision to "vacate and remand" is that it applies all the way down to the District Court's decision, to require them to vacate their decision and simply refuse to try the case. If that's so, then the case would fail to have anyone on the other side litigating against the plaintiffs, which (as I understand it) results in an automatic judgment in favor of the plaintiffs."

I read a legal scholar discussing this claim and what is interesting about the initial case is that the plaintiffs, for some strange reason, never filed a summary motion to dismiss the case. Apparently this motion is normally filed during a case, but because it wasn't, there is an interesting legal question of whether or not it can now be done given the SCOTUS decision. I agree it would be a salutary outcome to invalidate Walker's ridiculous decision.

Don't you mean that the defendants never filed for a summary motion to dismiss? Of course the plaintiffs didn't want the case summarily dismissed.

Tony seems to be saying, which would correct my explanation, that what this would amount to would be the governor's office simply leaving the plaintiffs' case uncontested. In essence, "forfeiting" the game at the first stage by not responding to the plaintiffs' complaint.

But doesn't there have to be _some_ judgement of the court on file even in order to invalidate Prop. 8? Otherwise Prop. 8 would just be in limbo altogether.

Lydia,

I'm not a lawyer, I only play one on TV :-)

I meant a summary motion for judgement! Here is the argument and the link:

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated. The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.” A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask: If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Why it Matters Whether a Default Judgment is Appropriate

If the named plaintiffs should get their licenses either way, a reader might ask, why does it matter whether we go the default judgment route, rather than simply leaving Judge Walker’s order in place? There are a few reasons. First, plaintiffs must request a default judgment, and as far as I have been able to discern at this point (the record is quite voluminous), no request or motion for entry of a default judgment was made in the district court. (The fact that no one appears to have made any such request is a bit odd, since Judge Walker himself seemed to doubt the sponsors’ Article III standing even as he allowed them to intervene as parties in the case. Given Judge Walker’s doubt about sponsor standing, the plaintiffs should have been asking themselves whether they even needed a trial to occur in order to prevail. But it also may be that plaintiffs and their counsel wanted a high-visibility trial for reasons that go beyond procuring justice for the named plaintiffs themselves.) So, to respect legal niceties, plaintiffs should have to go back and seek the default judgment to which they are entitled.

Second, legal niceties matter here because the scope of the injunction (the judicial command) that Judge Walker issued might have been informed by the trial that he (wrongly) held. Judge Walker issued an injunction that, by its straightforward terms, tells the defendants (the Governor, the Attorney General, and the County Clerks in LA and Alameda counties) not only that the named plaintiffs can be married, but also that they (the defendants) are judicially prohibited from applying Proposition 8 to anyone else.

Here is this guy's entire analysis, which I found quite interesting:

http://verdict.justia.com/2013/04/11/precisely-what-will-or-should-happen-to-same-sex-marriage-in-california-if-the-supreme-court-finds-in-hollingsworth-v-perry-that-the-proposition-8-sponsors-lack-standing

Wow, so this might mean only that those particular people can "get their license" but not that any other licenses have to be issued in CA? That's wild.

Why wasn't all this clarified by SCOTUS? The entire situation in California now appears to be radically unclear.

Btw, here's a question about the DOMA judgement: Does that judgement mean that the Federal govt. of the U.S. must accept all foreign marital claims as well as all those of the states? So, in other words, does this mean that for purposes of immigration a Muslim man who "has four wives" according to the laws of the country he came from must also be deemed to have four wives by the U.S. federal govt., who must give all four of those wives whatever consideration it would usually give to a spouse in immigration law?

(Btw, the very fact that this question arises is another one in the eye for all the annoying people who are going around claiming that DOMA is unconstitutional because of federalism. Baloney. Federal law also concerns immigration, which is not some sort of insult to state sovereignty. Unless "federalism" is now supposed to mean "giving due deference to the laws of Saudi Arabia.")

If the district court's ruling is vacated and remanded, then they will simply re-consider the case. At that point (heh) maybe California will defend its law. Not likely, in which case the petitioners will plea for summary judgment and get a positive judgment. At the district level, theoretically, the judge can only force the state to allow them to marry, it cannot overturn Prop 8 as such. At least that's the idea. So the judge could not rule in such a way as to affect the entire state. Furthermore, unless the matter goes up to the 9th Circuit, the rest of the states under the 9th Circuit remain unaffected - they can remain with state law doing whatever.

Which leaves us all ready to get round 2 with another California couple, and so on. When is there a judgment that affects the whole state, if no federal appellate court can take the case because there is no defendant with standing?

Prediction: Prop 8 will be overturned by the California Supreme Court in 2014 or later this year, IMHO. The plaintiffs will ask for a rehearing in light of the conclusions in DOMA. (Kennedy gave them the equal protection animus hybrid analysis that will do the trick) CSC will grant cert, the Cal AG will go through the motions to "defend" the law, since she will know that it is nearly certain the CSC will do its job. There will be no appeal, since the state will refuse to defend it after it "loses" in the CSC.

This is tyranny, my friends, pure and simple.

Tom, refresh my memory. Calif Supreme Court already threw out state law that prohibited SSM, that's why Prop 8 changed the constitution. On the matter of state law, the CSC can overturn state law by saying it is unconstitutional according to the state constitution. Does CSC have the authority to interpret the US constitution against the state constitution? Offhand I would say no, it doesn't. Part of the point of being a state constitution is that it binds not only the state legislature but also the state judiciary.

Does CSC have the authority to interpret the US constitution against the state constitution? Offhand I would say no, it doesn't.

I believe it does, actually. My recollection is that state level court are also supposed to apply the U.S. Constitution when relevant. Usually the issue doesn't come up,because if there is a constitutional issue, the suit is brought in federal court. However, it's a fallback possibility for odd cases. For example, when people were talking about the Congress using a constitutional clause to block the federal courts from hearing abortion cases, a bunch of state Supremes vowed that they would apply Roe v. Wade via suits brought in state courts. Bork brought this up when discussing what he considered the probable ineffectiveness of having the Congress limit federal court authority over abortion.

I haven't read through all the comments so maybe this question has already been addressed. What happens now in Utah where the US insisted that polygamy be banned in the state constitution before Utah could be admitted into the union? Do all the wannabe polygamists have a case to tear out that portion of their state constitution under the same lights Justice Kennedy found deliberate animus against homosexuals in DOMA?

Yes, and it won't take long, either. But they would be better advised, from the standpoint of foreseeable effects, to wait until Prop 8 is officially banned on federal constitutional grounds in such a way that it sticks. Even to wait until a positive ruling from SCOTUS that all states must allow gays to "marry", if that will happen. (Which is not a given even if SCOTUS knocks down Prop 8. They could do it on narrow grounds that only applies to Prop 8 or Calif.) If polygamists tip their hands too soon, the Kennedys will have harder time fudging the rationale to pretend its all a natural consequence of basic rights.

It would seem an even quicker way to bring in polygamy via immigration. Once Mahmood's four wives are recognized in federal law because he immigrated with them from Saudi Arabia, the general idea will become more acceptable for born-in-America Americans, I would think.

It would seem an even quicker way to bring in polygamy via immigration. Once Mahmood's four wives are recognized in federal law because he immigrated with them from Saudi Arabia, the general idea will become more acceptable for born-in-America Americans, I would think.

I think we'd need the polygamous population to overwhelm the culturally monogamous immigration influx. I don't see that happening without herculean effort. It'd take millions of muslims. But if we could, well...

Maybe we'll see it happen in Europe.

What happens now in Utah where the US insisted that polygamy be banned in the state constitution before Utah could be admitted into the union?

Nothing happens, it is the unquestioned prerogative of the federal government to make territories conform with existing laws in order to join the Union. From another angle, if an existing state wants to change its laws to something different they are not retroactively expelled from the Union for doing so, although other federal actions are possible.

Do all the wannabe polygamists have a case to tear out that portion of their state constitution under the same lights Justice Kennedy found deliberate animus against homosexuals in DOMA?

The only case I could find is about a reality show polygamist, and from what I could tell he isn't trying to overturn the marriage license restriction, he wants the Utah-specific ban on bigamy decriminalized. In other words there isn't anything now to prevent polygamists from having bigamist "arrangements" in the other 49 states, they are only restricted from having multiple marriage licenses. Politically neither liberals or conservatives (except conservative Muslims and Mormons) have any interest in promoting polygamy, so I don't see where the political will to expand equality to plural marriages comes from even if is determined to be an animus.

Politically neither liberals or conservatives (except conservative Muslims and Mormons) have any interest in promoting polygamy, so I don't see where the political will to expand equality to plural marriages comes from even if is determined to be an animus.

The political will to expand the definition of marriage to include the union of two same-sex partners came literally out of nowhere, since up until the late 20th century there had never been a movement by homosexuals to petition for marriage--even in places where homosexuality was more or less tolerated, as in ancient Greece. It is fair to say that until the 1970s, homosexual sodomites were content to sodomize one or more partners without the need to dignify such proceedings under cover of a publicly recognized union. (Of course, there are a few notable historic exceptions: Suetonius relates that the Roman emperor Nero "married" a young man in a lavish wedding ceremony, after ordering the latter's castration.)

Once same-sex marriage sets in culturally, it will be interesting to see what new crop of perversions will be sought after to apply the term "marriage" to. Group marriages, for instance, may not be in high demand now, but it only makes sense that certain debauched individuals might want a socially recognized arrangement with marital benefits for their collection of sexual partners. (Charlie Sheen and his "goddesses" come to mind. The living arrangement was acceptably un-patriarchal: each person apparently had sex with each other. While this is a form of polygamy, I think it's safe to say Sheen subscribes to neither Islam nor Mormonism.)

Group marriages, for instance, may not be in high demand now, but it only makes sense that certain debauched individuals might want a socially recognized arrangement with marital benefits for their collection of sexual partners. (Charlie Sheen and his "goddesses" come to mind. The living arrangement was acceptably un-patriarchal: each person apparently had sex with each other. While this is a form of polygamy, I think it's safe to say Sheen subscribes to neither Islam nor Mormonism.)

I think things get more complicated with group marriages. I don't think Charlie Sheen's arrangement was un-patriarchal - he wasn't sitting there, as far as I know, going on about his multiple life-partners and such. Those were largely women he was having sex with and who were conditionally enjoying his largesse. (I remember Sheen's quote about prostitutes: "I don't pay them to have sex, I pay them to leave.") I don't think Sheen would take the step of 'marrying' all three and tying them up with his assets, etc, even if that option was available. Not every man wants his mistresses, or mistresses, to have some kind of claim on his property.

I don't think we're going to see a push for legalized polygamy in the US, save for some smaller quarters like possibly among mormons. In Europe, possibly, due to the muslim connection. I think intellectually it's unavoidable if people are consistent - but people love to be inconsistent, so so much for that. But I'd be amused to see it happen, because I think that would provoke one hell of a fight: if businesses that have spousal benefits feel publicly pressured to even provide them for the man with five wives, and if they were numerous enough, I think what we'd immediately see is businesses ceasing to offer spousal benefits, period. And I think 'couples' would understand that was coming, and suddenly the fight for monogamy would become very pitched - and in some quarters, hilariously hypocritical.

In a way, I hope that the new push for 'same sex marriage' results in a lot of heterosexual 'couples' getting married to exploit the system. The end result would be civil marriage becoming an explicit joke, but better a joke than a false idol, so to speak. Maybe then we could go about the business of having a serious conversation of just what marriage is or should be, with the emotionally frantic parties silenced or wearied by unintended fallout.

Now that DOMA is gone, what's the situation? While the guy lives in Nebraska, is he married or not?

My understanding is that, pre-DOMA, the federal government considered a person married if the marriage was valid in the jurisdiction in which it took place. It wouldn't matter if they moved later. So pre-, and presumably post-DOMA, he would be married for the purposes of pension benefits no matter where he went.

Under DOMA, he isn't married according to the federal government no matter where he is.

This highlights why section 2 of DOMA was so stupid...basically because of a massive conservative freakout when Hawaii courts declared there must be a compelling interest to ban SSM, they went and nationalized marriage where before it was purely a state matter. Now the shoe is on the other foot and they're all predictably whining about the injustice of it all. Unfortunately the left was right all along...the vast majority of "small gov't" conservatives are completely in favor of the highest power in the land enforcing their preferences. It's one of the reasons why they've almost completely lost my generation and younger.

Politically neither liberals or conservatives (except conservative Muslims and Mormons) have any interest in promoting polygamy, so I don't see where the political will to expand equality to plural marriages comes from even if is determined to be an animus.

Except...it will not be called polygamy because of the UGH! factor (just like homosexual became "gay"). Polyamory is the name the nascent pressure groups give it and it is coming to a courthouse near you probably sooner than you expect. The reason? Because marriage has been redefined to include something other than one man / one woman, only animus motivated by bigotry and repression can pretend to stand in the way of any and all additional redefinitions.

Hold onto to your original marriage license and birth certificate which list bride and groom and mother and father. They will become historical curiosities that may capture high dollars from the Smithsonian for your heirs.

Matt, what actually happened per the "massive conservative freakout" you speak of is that the homosexualists from various states (predictably) went on a mission to "marry" in a state that recognizes same sex "marriages," then to return to their home states and demand their "marriage(s)" be recognized there via federal lawsuits. In other words, THEY initiated this whole process of federalizing marriage, not conservatives, and the federal courts were more than happy to take up their illegitimate cause.

Also, the full faith and credit clause includes the provision granting the (federal) Congress authority to "by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and THE EFFECT THEREOF." That's all that DOMA really did when you boil it all down. The Supremes have no authority to strike it down, and arguments to the contrary on tenth amendment/federalist grounds (which I'm generally very sympathetic to) simply fail on the basis above stated. Otherwise both you and the Supremes are ignoring an explicit Constitutional provision as though it does not exist when it is written in plain enough English that (specifically) tenth amendment types like you and me ought to pay particularly close attention to. As for the Supremes (and the federal courts in general), I don't expect that lawless body to do anything less than spit on the Constitution every chance it gets.

Note that if the hypothetical business Tony mentioned is located in a state that doesn't recognize homosexual "marriage," that business wouldn't usually be providing spousal benefits to homosexuals. Yet with DOMA struck down, they might have to offer spousal pension benefits because of the intersection of federal law with a man's having "married" his homosexual partner in another state. Anyone who thinks that forcing a local business in a state that doesn't recognize homosexual "marriage" to give spousal benefits to a homosexual partner is some kind of victory for federalism is just twisting the very concept of federalism. I note, too, that Tony (even better than I) hit way, way out of the ballpark Matt's snarky statement that there couldn't possibly be any conflict between state laws because you couldn't "reside in two states at once." Baloney. Tony showed the massive unclarity arising from striking down DOMA using his pension example. And Matt has, predictably, switcheroo-ed on a dime to demanding that homosexuals be given benefits for their "marriages" even when residing in states that do not recognize them. Because, as I predicted, he didn't really want it to go by state of residence after all, despite his silly, snarky comment that "you can't live in two states at once."

So much for the faux federalist argument against DOMA.

Dunsany:

"The effect that DOMA has on broader society isn't really relevant if we are attempting to determine why it was passed. Laws often have unintended consequences, but that doesn't mean that we should let laws that were passed because of irrational animus survive."

America is a democracy in no small part because a lot of 17th-century Englishmen had an irrational animus against Catholics. Should we all be campaigning to bring back absolute monarchy?

The fact is that there is precisely zip, zilch, nada in the Constitution that says that "laws that are passed because of irrational animus" are unconstitutional. Nothing whatsoever. Dunsany actually knows this, but when he talks about these matters he isn't concerned with legal or contitutional accuracy, because, as he has said expressly, he's just concerned with winning, and if that means just "making it up" as far as legalities are concerned, well and good. So in a sense it's pointless to make these points to him.His comments about "irrational animus" are just more propaganda. They, like the SCOTUS decision itself, have nothing to do with what is actually constitutional and unconstitutional. They merely have a vague appearance of legal reasoning for those who might be propagandistically influenced by such an appearance.

Irrational animus? Ask Chick Filet about that, or Mark Regnerus, or the FRC security guard, or the photographer in New Mexico, or the Methodists in New Jersey, or the Seventh Day Adventists in the UK, or Catholic Charities in Massachusetts, or the Christian adoption agencies in Illinois, or philosopher Ken Howell at the University of Illinois, or Chris Broussard at ESPN, or the high school kids who walked out of Dan Savage's rant, or the people who lost their employment and were harassed after Prop 8 passed, or the Christian colleges now banned from advertising in Jobs for Philosophers.

Irrational animus is what the other side does, and thus it projects its moral inadequacy on its adversaries, since that is the only way it thinks moral disagreement operate.

My understanding is that, pre-DOMA, the federal government considered a person married if the marriage was valid in the jurisdiction in which it took place. It wouldn't matter if they moved later. So pre-, and presumably post-DOMA, he would be married for the purposes of pension benefits no matter where he went.

No, Matt, you are definitely wrong. I do a fair amount of work in pension matters. Until DOMA was overturned, pension plans were FORBIDDEN to treat 2 gays as married, regardless of state law, and regardless of whether they were "married" in a gay-"marriage" state or resided in one. Pensions are controlled under federal law, ERISA, which was written to wholly supercede state law on the subject of pension rules. Federal agencies put out explicit guidelines after MA legalized gay "marriage" that pensions were not permitted to treat gay couples as married for purposes of benefits determined under the plan for "spouses", for example, although a pension plan sponsor could extend benefits to gay couples (without using the term "marriage" for that).

Unfortunately the left was right all along...the vast majority of "small gov't" conservatives are completely in favor of the highest power in the land enforcing their preferences.

Just from the matter of pure logic and semantics, it is impossible for the left to be right...:-) No, conservatives were all in favor of the highest power of the land enforcing their (and God's) definition of marriage with respect to the highest power's own proper acts. That's federalism. You didn't see any federal agency try to strike down Massachusetts attempt to legalize marriage in MA, or to declare that STATE benefits of marriage, as extended to gays, were invalid on the basis of DOMA. The feds weren't telling states how to run their states. MA gay "spouses" could get all state benefits applicable to spouses. To say that DOMA was anti-federalist because they couldn't get federal benefits is just bonkers. Matt, your reasoning is even dumber than Justice Kennedy's, which was bad enough.

The right was right all along, that Romer and Lawrence (and the justices who gave us those) were going to end up forcing us into allowing gay "marriage". They said it back in the 90's, and the liberals who pooh-poohed the claim back then are TOTALLY IGNORING the fact that they were wrong, wrong, wrong.

I don't think we're going to see a push for legalized polygamy in the US, save for some smaller quarters like possibly among mormons.

Crude, if the benefits were restricted to people actually having sex together, I suspect you would be right. But since marriage benefits include health and pension benefits, education benefits, etc, I think you are wrong. I think it won't take people long to figure out that there are effectively no tests for whether 2 people really intend "marriage" when they get a license, so there is nothing to prevent any 2, 3, or 43 people to choose to "be married" if it gets them benefits. After SCOTUS acts to strike down all state laws limiting marriage to heterosexual unions, I expect people to start making use of the above realities quite quickly. And I hope they do. I hope that an enterprising state like my own decides to set up a single "group marriage" with as many people as add their names to the list, and then apply for all possible federal spousal benefits that can possibly be imagined. The sooner they can bring down the (at that point) deranged "marriage benefits law" arrangement, the better, in my opinion.

Tony,

After SCOTUS acts to strike down all state laws limiting marriage to heterosexual unions, I expect people to start making use of the above realities quite quickly. And I hope they do. I hope that an enterprising state like my own decides to set up a single "group marriage" with as many people as add their names to the list, and then apply for all possible federal spousal benefits that can possibly be imagined. The sooner they can bring down the (at that point) deranged "marriage benefits law" arrangement, the better, in my opinion.

Well, you're echoing some of my own thoughts there. I suppose we'll see - I think the polygamy push needs a little more cultural grease than you seem to think. But then again, who knows.

It would be interesting if that sort of civil disobedience transpired.

Thomas Aquinas, of course as you and I both know, the homosexual activists simply _define_ "moral disapprobation of homosexual acts" as "irrational animus." That moral disapprobation should be defined as animus of *any* kind is of course ridiculous. It is possible to feel animus toward someone of whose behavior one disapproves, but the idea that it follows of necessity is the sheerest nonsense. It's politically useful nonsense, though. All you have to do is show that someone morally disapproves of homosexual behavior and, bang, you have defined him as a hater.

I can't myself share in all this "hope it all comes tumbling down" talk. For one thing, I have no idea whatsoever of what good thing is remotely likely to rise from the ashes of civil marriage. I've come to doubt over the years that persistent hope that after things get really bad, they will somehow get better again, because people will "come to their senses," or that there is a bottom of the hill and once we hit bottom we will have to start to climb back up. It seems that there are always new depths of insanity and depravity to be plumbed. I don't hesitate to say that I believe these ideas probably come not just from mankind but also from the devil. We can't really anticipate what will happen if civil marriage comes to be regarded as a complete joke, and I'm not in any hurry to hasten the day in the hopes that people will somehow come to their senses _finally then_ and things will get better in some way or other.

I've come to doubt over the years that persistent hope that after things get really bad, they will somehow get better again, because people will "come to their senses," or that there is a bottom of the hill and once we hit bottom we will have to start to climb back up.

I won't speak for Tony, but for my own part, that's not what I'm banking on. It's more that if 'civil marriage' is a joke, I want it to be seen and known expressly as a joke, so it can stand in contrast to Christian marriage, or Jewish marriage, or even Muslim marriage. I don't have any thoughts about something rising from its ashes. I think, if we truly are unable to salvage and beat back gay marriage for the forseeable future, it would literally be sinful - something along the lines of idolatry - to keep regarding civil marriage as a sacrament or something akin to a sacrament.

I'd like civil marriage to be restored to what it should be. But if it can't be? I'll wash my hands of it. I imagine it's a little like how an orthodox Christian may regard the Episcopalians. There comes a point where the thought at the forefront of the mind is no longer 'how do we save it / revive it' but 'I sure hope it disappears altogether soon, because there's alternatives'.

But there aren't alternatives. Not to the state's giving some recognition to married couples. Not in my opinion, anyway. For example, we're moving to a world in which married parents won't have prima facie custody of their own children. The elimination of civil marriage will only hasten that. Speaking for myself, I'm hanging on to the benefits for Christian couples of being civilly married for as long as possible.

Lydia, as Crude was thinking of "civil marriage" as being taken as a joke, a wink and a nod, a complete flim flam - while the rest of society still manages to plug along more or less as is. Naturally, there are a lot of ifs in there. What I would be willing to have happen any of a number of quick, nearly painless 3- or 4-step unravelling of federal stupidity. Suppose about a dozen states shove a dozen different trials of screwball "marriages" at the feds, all, say, next year, and force Congress to do something like come up with a federal definition of "marriage" that excludes all the flim flam of the states. Of course they will have at least 2 dozen cases go up the chain because then Congress will be defining marriage against the determinations of the states, with an "animus" against X, Y, and Z that has no basis in anything. After SCOTUS deals with those (probably at least one successful), then have some of the same states ELIMINATE their legal status of marriage altogether so that not only do they not have any new "marriages" at all, but all the old "marriages" are not recognized by the state. Then have the state initiate a new category, called a "Comsecofadren" (tying together parts of "complementary-sexual covenant for family and children") that defines the category as open only to unions of different sexes because that's the nature of the category they intend to define. Then (gradually, over the course of 5 years), add one social benefit after another to the new category, all based on the interrelationship between the complementary sexual union and the children which are its natural fruit.

My point is that if this is all done quickly and up front, we are not talking about civil society itself come apart at the seams. Yes, it would cause some disruptions. The point is to push Congress and SCOTUS into such a completely lost cause that they have to end up backing down somewhere along the way and give up their nonsense.

Would it work? Good chance it wouldn't, but there is a better than 10% chance that it would, I think. In my estimation, if things are left "alone", we are looking at outright direct, severe persecution of Christians teaching their faith in less than 10 years, 15 at the outside. Why wait?

Tony, at least you're envisaging any state that abolishes civil marriage as reinstating it instantly under a new name. Not just looking for it to come to an end because it's "become a joke."

SCOTUS will never give up its nonsense, I can tell you that much.

In my estimation, if things are left "alone", we are looking at outright direct, severe persecution of Christians teaching their faith in less than 10 years, 15 at the outside. Why wait?

If Tony's prediction is accurate, I think we must acknowledge the potential for a substantial boon to the Church. Despite the intrinsic evil of whatever persecution may come, it will surely engender a purification and an intensification of Christian devotion. We can anticipate a heightened sense of Christian unity and a concomitant return of many of our separated brethren to the Catholic Church. The dwindling fence-sitters calling for aggiornamento and rapprochement will be forced to shut up and pick a side.

Tony, at least you're envisaging any state that abolishes civil marriage as reinstating it instantly under a new name. Not just looking for it to come to an end because it's "become a joke."

So what, I should pretend that civil marriage is worthy of respect when it broadens to include LGBT unions? I shouldn't endorse, as Tony reasonably lays out, a direct and intentional promotion of crazy 'marriages' to help highlight the absurdity?

Here's a hypothetical situation: let's say next month there's an outcry for polygamous marriage. Is it expected that I and others would be out there saying 'No! Marriage is between... uh, well, two people right now of any gender. But two! That's the remaining sacred part!'? It was bad enough when marriages were being abused in other ways, but at some point it no longer makes sense to try and prop up a gored civil institution - and trying to apply band-aids to it in the hopes that we'll be able to hold onto the benefits for married Christian couples, maybe, for a bit longer just doesn't seem compelling to me.

I like Tony's idea. Let's find out just how malleable marriage is supposed to really be, and with what limits and what justifications for those limits. I don't think it would be feasible in practice to no longer recognize previous marriages (I think that would outrage even supporters of Tony's aims) but maybe we should give serious thought to radically acting up in that sort of way while we're still capable of it in some quarters. I'd rather not keep maintaining what remains of the old status quo for as long as possible owing to what limited perceived state comforts come with it.

I don't think it would be feasible in practice to no longer recognize previous marriages (I think that would outrage even supporters of Tony's aims)

Of course it's an outrage. That's part of the point.

Oh, they can keep the category for state law insofar as it is necessary to identify people who used to be married.

Maybe, maybe. I think that may have the wrong effect as opposed to what you're aiming for, but we're off in the land of speculation now.

At the very least, it's a new way of considering the matter, some hashing out of ideas. Worst case it's a bad idea. Best case we get some good, new ideas.

But there aren't alternatives. Not to the state's giving some recognition to married couples. Not in my opinion, anyway. For example, we're moving to a world in which married parents won't have prima facie custody of their own children. The elimination of civil marriage will only hasten that. Speaking for myself, I'm hanging on to the benefits for Christian couples of being civilly married for as long as possible.

Women will never be denied prima facie custody of their own children as a group because that is nonsensical on a level that even the most ideological cannot reach. If you intended parents to mean something other than strictly "fathers" then I think you need to get over your need to pretend that men and women are equally hurt by the family law system and admit that there is a very strongly anti-male animus in the family law system. You don't need to be a MRA to admit that. Even many non-MRA social conservatives are now admitting that fathers and husbands really are second class citizens in family law.

I won't speak for Tony, but for my own part, that's not what I'm banking on. It's more that if 'civil marriage' is a joke, I want it to be seen and known expressly as a joke, so it can stand in contrast to Christian marriage, or Jewish marriage, or even Muslim marriage. I don't have any thoughts about something rising from its ashes. I think, if we truly are unable to salvage and beat back gay marriage for the forseeable future, it would literally be sinful - something along the lines of idolatry - to keep regarding civil marriage as a sacrament or something akin to a sacrament.

In general, I think this post by Zippy applies quite well to your comment. Even if civil marriage were to encompass homosexual, polygamous, inter-species marriages it would still be possible for a Christian couple to practice a Christian marriage while possessing a civil marriage provided that both parties actually hold to that religious understanding. The biggest problem is that many do not, as witnessed by the many Christians who remarry illicitly in part because of the state granting them what their church should not... a divorce.

Personally, I cannot wait for the day someone resurrects a pure blooded Neanderthal or finds usable Denisovan DNA and the issue of homo sapien-Neanderthal/Denisovan marriage comes up. I give it 20 years before the technology is there to make it happen.

I will never endorse homosexual "marriage." If Crude thinks that my holding on to civil marriage means that I'm going to endorse homosexual "marriage" in some kind of rhetoric opposing polygamy, he just utterly misunderstands me. But that wouldn't be anything new.

I think Crude is arguing, reasonably so, that there is a point where civil marriage becomes so twisted that one becomes at risk of being seen as giving formal cooperation with evil. Indeed, whether or not any other definition of marriage before the law is philosophically valid or just giving legal form to a fiction may at some point be beside the point if the range of depravity that falls under the definition of civil marriage continues to grow in this direction.

Imagine if the state claimed total jurisdiction over adoptions, lowered the age of consent to 9 and adopted the Islamic practice of temporary marriages in such a way as to include girls at or over 9 years of age. Would you regard the fact that the system still can do many valid adoptions as relevant to the larger issue that any girl you put up for adoption within the civil adoption system is liable to be raped in a temporary marriage with permission by the state?

But that's a practical issue. Obviously in that situation you don't put a girl child up for adoption unless you have personally found a specific set of parents and obtained state approval for adoption by that set of parents. In fact, the practical issues are somewhat similar. An unwed mother might still be able to find circumstances in which she would place a girl child for adoption, and the adoption would still have the effect of giving the chosen parents jurisdiction over the baby, and that would still be a good thing for that particular baby. And good parents might still jump through the hoops and adopt particular children, for the good of those children. That would be better for the babies than being passed around in some kind of hidden black market with no recognized parents. Similarly, even in a situation where civil marriage has been expanded to recognize all sorts of depraved situations, one still has the freedom to choose one's own husband or wife and to get the advantages that accrue to that particular union by having it recognized by the state. That is still better for oneself and one's children than having a relationship that is legally identical to shacking up together.

That would be better for the babies than being passed around in some kind of hidden black market with no recognized parents.

That's debatable. You're presuming a system predisposed to depraved conduct will suddenly behave itself in those areas. That's an extremely charitable thing to give it.

That is still better for oneself and one's children than having a relationship that is legally identical to shacking up together.

That depends on how you define better for oneself. Legal cohabitation is actually better for men now than civil marriage because it provides them with a counterbalance to no fault divorce (which women overwhelmingly use more often than men). To rub salt into the wounds, studies now show that cohabitating couples report better sex lives in longterm relationships than most interviewed married couples do. Finally, when a woman wants to nuke her marriage she automatically gets custody of the kids, alimony (in many cases), child support, etc. without regard to fault, justice, etc.

But then, presumed paternity makes up for all of that doesn't it? That a man doesn't have to sign a piece of paper positively affirming parenthood of his children is a real counterbalance, eh?

This should not be the situation that exists, but it is what it is. You can argue idealism versus reality, but the real state of civil marriage provides very little ROI for men. If you are try to fix things without addressing "what's in it for me" then you are going to fail without exception unless you resort to despotism.

Mike, I absolutely refuse to get involved in some kind of men's rights debate. I am assuming a couple who love and trust each other absolutely, who are right to trust each other, and who want to do what is right vis a vis one another and for the children they have not yet conceived. You want every marriage to be treated as a black box where at least the man looks on it ahead of time as, "Hmm, what are the statistical probabilities that this woman is going to mistreat me horribly." If I did the same on the female side, I'd have the woman saying, "Hmmm, what are the statistical probabilities that this man is going to get addicted to porn and leave me for a younger woman?"

I don't believe in doing either of those things. That is to say, if that's how you look at the other person (as a statistic) you shouldn't be marrying. I'm talking about two people who are in fact prepared to be married to one another, as real individuals, for life and want to do the right thing. I believe that they should marry civilly, period. Please stop inserting your agenda into the discussion.

Let me add, too, Mike, that your particular set of preoccupations (dare I say obsessions?) are orthogonal even to the argument that I see Crude as making, much less Tony.

As always, my points are contra yours on this subject. You constantly make statements about the perceived benefits of civil marriage under this legal regime and then have to use a very strict modifier to justify yourself. Your main objection seems that when that modifier is removed, your argument completely falls apart. But in actuality, my argument stands even for the couples that meet your definition as quite a few of the couples that fit your definition when they go into marriage still end up divorcing anyway.

That is to say, if that's how you look at the other person (as a statistic) you shouldn't be marrying.

And if you are looking at marriage policy from the perspective of your own marriage, then you are no better than a feminist chanting "the personal is the political" in defense of her birth control pills and abortion rights. A the public policy level, statistics and group behavior are most of what really matters, your individual case be damned in most situations.

Mike, you are trying to wrench this discussion around to your own preoccupations. In general, we are not here discussing "how marriage is already a bad deal for men and how Mike would like to change that." That was never the topic. We were, I thought, discussing whether Christians should wish to abandon the very existence of civil marriage and whether Christians themselves, if homosexual "marriage" is forced upon the country as a whole, should continue to obtain civil marriages. In _that_ context, it is perfectly legitimate to postulate a couple that _do_ rightfully trust one another, who _are_ Christians and _do_ intend lifelong fidelity, and to ask what _that_ couple should do. Should they obtain a civil marriage or should they merely go through a religious service? This isn't a matter of "making the personal the political." If at that point a person insists on foisting onto the hypothetical would-be husband in such a case an attitude of not wanting to get too bound up with the woman because she might shaft him or something of that kind, it's perfectly legitimate for me to say that that isn't the sort of couple we are talking about and that a man who is incapable of looking at his fiance in any fashion other than that has no business to be getting married.

So far is this from feminism, that it is, in fact, a consistent position to the position I have always taken when feminists say, "A woman should have a career, because she can never know if her husband is going to divorce her." In terms of what a woman, a real, individual woman should do, I have always said that if that is what she thinks of a man, she shouldn't marry him. And if she is such a die-hard feminist that she can't think of a man in any other way, if she's such a man-hater that she will never trust anyone with her economic future (i.e., trust him not to dump her), she has no business marrying anybody. Such an attitude of trust and true commitment to the other is, I might add, a prerequisite to a valid _sacramental_ marriage. The alternative attitude is the attitude of prenuptial agreements, which the Catholic Church (rightly, I believe) considers to invalidate a marriage: "I'm sort of marrying you, but I don't really trust you and think you might shaft me, so let's get everything laid out now so I know I'll be okay and that you won't be able to hurt me too much in the event of a later divorce."

So if we're talking about a couple that wants to actually be married even *in the eyes of God*, we need to be assuming a couple in which the man and woman do not hold one another at arms' length, thinking about, "What if this person tries to harm me later on? How can I keep enough distance so that doesn't happen?"

Once we have postulated a couple capable of marriage at all, it is then that we need to ask whether they are best served by having the option of civil marriage available to them or whether we should really wish that option abolished or tell them that they are bound not to participate in it.

Do try to keep these matters disentangled, Mike T. Have you ever read David Copperfield? Sometimes I think you are like Mr. Dick and the men's issues are like King Charles's head. It keeps coming up, whatever subject Mr. Dick is allegedly writing about.

I will never endorse homosexual "marriage." If Crude thinks that my holding on to civil marriage means that I'm going to endorse homosexual "marriage" in some kind of rhetoric opposing polygamy, he just utterly misunderstands me. But that wouldn't be anything new.

Or maybe - just maybe - that's not what I'm saying and you're criticizing a strawman.

Actually, Mike T nailed it with this summary of my view: I think Crude is arguing, reasonably so, that there is a point where civil marriage becomes so twisted that one becomes at risk of being seen as giving formal cooperation with evil. Indeed, whether or not any other definition of marriage before the law is philosophically valid or just giving legal form to a fiction may at some point be beside the point if the range of depravity that falls under the definition of civil marriage continues to grow in this direction.

He also brings up a point I didn't consider. You're talking about the 'state benefits' of marriage as it is. Well, there are some state disadvantages to the current setup as well - some pretty steep ones, as a matter of fact.

If at that point a person insists on foisting onto the hypothetical would-be husband in such a case an attitude of not wanting to get too bound up with the woman because she might shaft him or something of that kind, it's perfectly legitimate for me to say that that isn't the sort of couple we are talking about and that a man who is incapable of looking at his fiance in any fashion other than that has no business to be getting married.

This comes perilously close to sounding as if you're saying that it simply doesn't matter if state marriage practically cashes out to - if Mike T is right - an arrangement that is systematically unfair to men, because men should be willing to get wrapped up in that kind of situation if they REALLY love their wife. That takes a whole lot of the air out of the 'state benefits to marriage' argument, and I think it callously ignores the concern Mike is raising. People are imperfect, and I'd like to know what marriage is idyllic - or what person counts on their marriage being idyllic. Taking account of a rotten legal arrangement is not necessarily some kind of callous behavior.

Especially when Mike is offering an alternative, or at least he seems to be suggesting one: have a couple get married before the Church. Have them take marriage seriously. But maybe those legal hooks have to change for the benefits to outweigh the negatives and for a civil marriage to be worth it. And this is before recognizing the increasingly rotten moral status of civil marriage.

So far is this from feminism, that it is, in fact, a consistent position to the position I have always taken when feminists say, "A woman should have a career, because she can never know if her husband is going to divorce her."

It's closer to, 'A woman should have a career, just in case she wants to divorce her husband for any reason at all.' I recall - and I bet Mike has the stats on this - most divorces are initiated by women.

The alternative attitude is the attitude of prenuptial agreements, which the Catholic Church (rightly, I believe) considers to invalidate a marriage: "I'm sort of marrying you, but I don't really trust you and think you might shaft me, so let's get everything laid out now so I know I'll be okay and that you won't be able to hurt me too much in the event of a later divorce."

Let's assume that's true for the moment (I realize it's more complicated than that.) The Church also doesn't accept divorce, period, save for situations tied up in annulments - which can be abused, of course. If there's a moral objection to prenuptial agreements, I imagine there would be moral objections to what basically amounts to an unfair prenuptial agreement already written into the laws in advance.

And before you accuse me of going off-topic - you are the one who brought up the state benefits to marriage as a reason to continue endorsing and making use of such a thing. What Mike did is point out the detrimental aspects of state marriage. That seems like a fair point to consider.

Here's a hypothetical situation: let's say next month there's an outcry for polygamous marriage. Is it expected that I and others would be out there saying 'No! Marriage is between... uh, well, two people right now of any gender. But two! That's the remaining sacred part!'?

That's what I'm talking about, Crude. I would never endorse that rhetoric. Any defense of marriage against polygamy should make the rejection of the homosexual simulacrum quite clear.

This comes perilously close to sounding as if you're saying that it simply doesn't matter if state marriage practically cashes out to - if Mike T is right - an arrangement that is systematically unfair to men, because men should be willing to get wrapped up in that kind of situation if they REALLY love their wife.

Sigh. I tried to explain that I say exactly the same kind of thing in response to feminists who say that a woman should have her career because "you never know." You aren't marrying a statistic. You are marrying a person. We are supposed to be imagining a couple, both parties, male and female, who are not trying to keep their distance because "so-and-so might divorce me and I don't want to get burned." If they have that attitude, the marriage is not valid anyway. This has nothing to do with expecting perfection and expecting things to be idyllic. _That_ is a straw-man. It has to do with committing oneself to the other person entirely. Frankly, if you're trying to keep hold of the bankbook or avoiding making yourself vulnerable to the other person--either way--because you don't trust the person, then you shouldn't be having sex. Sex is the ultimate vulnerability. That's why marriage involves total commitment to each other. This response is relevant both to feminists who allege that marriage is "slavery" for women and that women need to hold on to their rights and also folks of Mike's type who allege that marriage is unfair to men and that men shouldn't enter into it.

Have them take marriage seriously.

Yeah, real seriously. So seriously that you didn't want to have a legal paper for it, because the other person might "take all your stuff" in divorce court.

you are the one who brought up the state benefits to marriage as a reason to continue endorsing and making use of such a thing.

I'm bringing up the state benefits for people like us. By that I would mean people who get married in couples who rightly trust one another and want what is best for their future children and the state recognition of their family.

If you and Mike want to get into some kind of mutual back-scratching society based on the allegedly deep insight that no man should ever really trust a woman, then fine, you can do that, but then you aren't the sort of people for whom I'm seeking the benefits of civil marriage. And I would say the same to feminists who say no woman should really trust a man. Even if they claimed to be Christian feminists.

Let me say, too, that in any given situation the people we should be thinking of most of all are the people for whom we are responsible. It makes no more sense for some Christian couple to refuse to get civilly married as a protest of gay "marriage" than it made for Brad Pitt and whats-her-name to refuse to get married as a protest of there not being enough gay "marriage." That kind of commitment to a cause over commitment to real, on-the-ground people is pretty much definitional of being an ideologue. The couple's responsibility is not to send some kind of message by having the father adopt his child when they bear children together (and I would ask them what kind of message _that_ sends anyway, if we're talking about messages!). Their responsibility is to each other, their families, and their own children, not to some vague societal movement.

I thought we conservatives at least had that much of a tie-down to the concrete over the abstract and propositional.

Mike, you are trying to wrench this discussion around to your own preoccupations. In general, we are not here discussing "how marriage is already a bad deal for men and how Mike would like to change that." That was never the topic. We were, I thought, discussing whether Christians should wish to abandon the very existence of civil marriage and whether Christians themselves, if homosexual "marriage" is forced upon the country as a whole, should continue to obtain civil marriages. In _that_ context, it is perfectly legitimate to postulate a couple that _do_ rightfully trust one another, who _are_ Christians and _do_ intend lifelong fidelity, and to ask what _that_ couple should do. Should they obtain a civil marriage or should they merely go through a religious service? This isn't a matter of "making the personal the political." If at that point a person insists on foisting onto the hypothetical would-be husband in such a case an attitude of not wanting to get too bound up with the woman because she might shaft him or something of that kind, it's perfectly legitimate for me to say that that isn't the sort of couple we are talking about and that a man who is incapable of looking at his fiance in any fashion other than that has no business to be getting married.

You do realize that all of this comes down to a simple matter: I look at the collective outcomes of family court proceedings and simply say that you are flat out wrong when you say that civil marriage confers so many benefits to men. I'm not even debating whether men should get married in the eyes of God or anything else. I am saying that as a matter of the performance of the legal regime regarding men, your statement is false. The typical outcome is unfavorable irrespective of the woman's behavior and civil marriage confers few, if any, legal benefits period, let alone ones that survive a wife wanting to nuke her marriage with a no fault divorce.

That's really all it's about. You hate being told that the cost benefit for men generally (that includes the vast majority of married men who are not in your special demographic) is ok, when in fact, it isn't.

No, Mike, that isn't really what it's all about.

Honestly, if some man thinks like you do and doesn't want to get married, fine and dandy. Maybe he shouldn't. Just like I think man-hating feminists shouldn't get married.

But it's a shame to teach and encourage a lot of men to think as you do and to apply it to their personal situations. Just like I think it's a shame to run "women's studies" programs that turn out more and more man-loathing feminists. Ruins a lot of young lives.

But frankly, I find you entirely tedious on this subject. I cannot say how tedious. And it looks really, really off-topic from where I'm sitting, so I'm not going to encourage you in it.

That's what I'm talking about, Crude. I would never endorse that rhetoric. Any defense of marriage against polygamy should make the rejection of the homosexual simulacrum quite clear.

You realize that wasn't meant to be a literal imagined quote of what you'd say? I'm emphasizing the problem - the increased awkwardness, and the seeming short-sightedness - of urging respect for an institution once it gets to a certain point of decrepitness. What would it take for you to say that maybe civil marriage is no longer worthy of respect or defense given what it actually legally is?

It has to do with committing oneself to the other person entirely. Frankly, if you're trying to keep hold of the bankbook or avoiding making yourself vulnerable to the other person--either way--because you don't trust the person, then you shouldn't be having sex. Sex is the ultimate vulnerability. That's why marriage involves total commitment to each other. This response is relevant both to feminists who allege that marriage is "slavery" for women and that women need to hold on to their rights and also folks of Mike's type who allege that marriage is unfair to men and that men shouldn't enter into it.

Yeah, and guess what? If divorce is a live possibility at all, 'committing oneself to the other person entirely' is not a live option. And yet it is.

What's more, feminists are less and less likely to regard marriage as "slavery" for women. What they regard as slavery is /the very ideal you are advocating/. Marriage, *as it stands*, is in many ways fine for quite a lot of feminists given the civil realities of the arrangement.

Please stop acting as if legal realities shouldn't impact one's decision whether or not to be married. To hear you say it, a man could have full legal license to divorce his wife at any moment by way of throwing her onto a pyre and lighting it up while she's alive, and she'd be selfish to not want to get married because hey, you have to trust your husband. Why should granting someone the legal right to murder you at any time get in the way of the sacrament of marriage, which apparently requires civil paperwork to be truly valid?

Yeah, real seriously. So seriously that you didn't want to have a legal paper for it, because the other person might "take all your stuff" in divorce court.

"All your stuff", among other things. I wasn't aware that the 'legal paper' determined whether or not a marriage was serious.

If you and Mike want to get into some kind of mutual back-scratching society based on the allegedly deep insight that no man should ever really trust a woman, then fine, you can do that, but then you aren't the sort of people for whom I'm seeking the benefits of civil marriage.

Yes, God forbid someone point out that civil marriage is not one long list of 'benefits' with no detriments, or suggest that real harm is being done to the community by reliance on or respect of it - at least, past a certain point of institutional abuse. No, the only marriage you care about is the utterly idyllic. Cultural and legal issues are a non-factor, except insofar as they confer benefits you personally enjoy. You keep oscillating between this talk of how what really matters is mutual sincere love and eternal commitment - and then switching around to making it sound as if the only way that can be in place is if you have a 'legal paper'. Sorry, I see some inconsistency there.

Nor is it a mutual back-scratching society. I don't know the extent of Mike's views on this - I'm not very familiar with it outside of this thread. But he does raise a point that strikes against 'state benefits'. You seem reluctant to even admit that much.

No, the only marriage you care about is the utterly idyllic.

Absolutely not. For a guy who gets so upset about being straw-manned, you seem to do a heck of a lot of it to those with whom you disagree. Or maybe it's just to me, I dunno. "Absolutely idyllic" and "you trust the other person" have a lot of space between them.

To make it clear, I advocate that women not have careers, that they stay at home with the kids. You think feminists are okay with that? No way. Does it make the woman vulnerable? Sure does. But if you don't trust the man enough to stay at home and raise his kids, you shouldn't marry him. I could give a lot of similar examples the feminists would hate. For example, if a rich woman marries a less-rich man, she should make all their property joint. You know what that means? The property is "mingled" and she loses her dowry benefit in the event of a divorce. Tough. If she wants to cling to her property from the get-go because she thinks the guy might waste it all on wine, women, and song, she shouldn't marry him.

Could there come up circumstances _later_ in the marriage, say if the person gets Alzheimer's or something of that kind, that would require changing these financial arrangements? Of course. But you don't marry with these little reservations.

Now, to take your example: Suppose that one were living in a country where the fact that you are married legally to a man means that he is given the power to burn you to death. Well, let's just start with the fact that maybe you should leave that country, and at a minimum, you should probably be looking to marry a man who has very different societal attitudes from those that informed that law. But can I imagine circumstances in which a woman had sufficient reason to trust a man that she would marry him under the laws of that country? Certainly. The fact that the law gives him power to do that to her doesn't mean one shouldn't contract a civil marriage.

Presumably the vast majority of us who are married were married after the time when no-fault divorce was put into place. That means that each woman's husband had the "power," technically, to divorce her unilaterally, against her will, when she had done nothing wrong. And, yes, the wives had that same power. No doubt even the most dedicated men's rights buffs knows at least a few cases on both sides of this--where the man did it to the woman or the woman did it to the man. Does that mean none of us should have gotten civilly married, simply because the laws are screwball? No, it doesn't.

For a guy who gets so upset about being straw-manned, you seem to do a heck of a lot of it to those with whom you disagree. Or maybe it's just to me, I dunno. "Absolutely idyllic" and "you trust the other person" have a lot of space between them.

No, don't water it down. You weren't talking about broad and general 'trust'. You were talking in terms of 'total commitment' and couples who 'love and trust each other absolutely'. Yeah, I think calling that 'idyllic' isn't all that far out.

To make it clear, I advocate that women not have careers, that they stay at home with the kids. You think feminists are okay with that? No way. Does it make the woman vulnerable? Sure does. But if you don't trust the man enough to stay at home and raise his kids, you shouldn't marry him. I could give a lot of similar examples the feminists would hate. For example, if a rich woman marries a less-rich man, she should make all their property joint. You know what that means? The property is "mingled" and she loses her dowry benefit in the event of a divorce. Tough. If she wants to cling to her property from the get-go because she thinks the guy might waste it all on wine, women, and song, she shouldn't marry him.

I am not accusing you of being some kind of crypto-feminist. Far from it. Holster your hostility towards me for a moment and realize that though we may disagree, it's not necessarily the case that I (or Mike or Tony for that matter) am automatically wrong.

Here's one key difference between the position you're taking and the reality. You seem to think it's okay for a contract to be involved which sets in motion state machinery that attaches a whole lot of nasty obligations and unfair fallout in the event of a divorce. In fact, you seemingly have the attitude that *unless that legal paper is involved*, the marriage is not serious.

But the fact that there is no such 'legal paper' involved committing the wife to the sort of life you describe doesn't seem to bother you at all. Why is it that one kind of commitment requires the force of the state behind it, but the other is in the realm of complete trust? Why isn't complete trust good enough for both commitments?

But can I imagine circumstances in which a woman had sufficient reason to trust a man that she would marry him under the laws of that country? Certainly. The fact that the law gives him power to do that to her doesn't mean one shouldn't contract a civil marriage.

Imaginary ideal circumstances isn't my concern. Here's a better question: can you accept that such a legal state can be a legitimate reason to make someone hesitant to marry someone else? That maybe that's the point where marriage outside of the civil authority may make more sense?

Presumably the vast majority of us who are married were married after the time when no-fault divorce was put into place. That means that each woman's husband had the "power," technically, to divorce her unilaterally, against her will, when she had done nothing wrong. And, yes, the wives had that same power.

Part of Mike's point is that this isn't at all an equal situation. If he's correct, then a man stands to lose far more - direly more, and this goes beyond the material considerations - in the case of a no fault divorce, even one he initiates.

Does that mean none of us should have gotten civilly married, simply because the laws are screwball? No, it doesn't.

I ask again: why is the lack of a contract for one set of expectations totally okay, yet for another it's seemingly unforgivable?

I think I've caught you in a serious intellectual catch-22.

You weren't talking about broad and general 'trust'. You were talking in terms of 'total commitment' and couples who 'love and trust each other absolutely'. Yeah, I think calling that 'idyllic' isn't all that far out.

Oh, brother. No, Crude, Lydia was talking about the standard commitment that is the normative Christian understanding of the commitment of marriage. Normative, meaning what we are all just supposed to be doing normally. The ACTUAL MEANING of the words: "for better or for worse, for richer and for poorer, in sickness and in health, till death..." Absolute applies to the basic meaning of the basic obligations for permanence and faithfulness: marriage isn't mostly to continue for your lives, it is for life in all cases. It isn't MOSTLY faithful, with only one or two scattered adulterous affairs, it is for total faithfulness, to expect each spouse to be absolutely faithful in action - no dalliances outside of marriage - and strive for full faithfulness in thought, no mental dalliances willingly and intentionally indulged in.

These are the sorts of commitments that many, many thousands of couples succeed in meeting even in this day and age. I know many couples who live these commitments, I could rattle off at least 3 dozen who live near me at the drop of a hat. This doesn't mean they are idyllic in the sense of having perfect family life, with everything in apple pie order and no shouting, nobody upset, etc. They are still humans with human mistakes, human sins, human pride and gluttony and so on. The reality is that the STANDARD requirements for marital commitments, as identified in the marriage vows, CAN be met by ordinary joes and janes when they both work at it pretty hard, without being out and out saints. Otherwise it would be foolish even to have a religiously recognized marriage before you were well along to sainthood - and the human race would die out.

Part of Mike's point is that this isn't at all an equal situation. If he's correct, then a man stands to lose far more - direly more, and this goes beyond the material considerations - in the case of a no fault divorce, even one he initiates.

In the case of marital infidelity, which is (from statistics as well as my anecdotal information) probably at least 80% initiated by men, the women are losing more than the men are, generally a lot more. In the case of finances, the women generally are losing more than the men. In the case of child custody, the men are losing a lot more than the women. Taken all in all, you can't make a case that men are on the severely short end of marriage failures in their effects.

Here's one key difference between the position you're taking and the reality. You seem to think it's okay for a contract to be involved which sets in motion state machinery that attaches a whole lot of nasty obligations and unfair fallout in the event of a divorce. In fact, you seemingly have the attitude that *unless that legal paper is involved*, the marriage is not serious.

But the consequences ARE serious, for the kids, no matter what. If there is no legal matter for the state to get involved with, what happens to the kids in a separation? Does the non-custodial parent provide any support? Why, if there is no legal arrangement for the state to speak to? Or rather, why would you expect anything other than out-and-out attempts at kidnapping (if there is any way of defining that) between the parents who are trying to separate and go their own ways, without a legal arbitrator? There SHOULD be a whole lot of nasty obligations set in motion to protect the kids from parents who are taking emotional (and physical) potshots at each other. And given that the churches have broken down, at this point you wouldn't even have religion reining in the behavior of the parties half the time. If the state did not have a base with which to settle disputes about money and kids, then people would resort to knives and guns to settle them. Sometimes they do anyway, but that's because the state is so damned screwed up in how it manages things.

The only context in which I was talking about getting rid of state recognition of marriage was one where the state replaced it with something else, if not immediately, then within a very short period of time.

Crude does have one good point: how far gone does the state marriage law have to get before there is no longer any point to supporting it? How far is too far? When the state permits explicitly temporary marriages, for 1 year or 2 years? When the state ceases to put any kind of crimp on surrogacy in any sense, so that people are in effect selling babies on the open market? When a corporation can "adopt" a child? When the state assigns kids away from parents who fail to pay their taxes? What conditions have to hold to say "no more"?

You do realize that all of this comes down to a simple matter: I look at the collective outcomes of family court proceedings and simply say that you are flat out wrong when you say that civil marriage confers so many benefits to men. I'm not even debating whether men should get married in the eyes of God or anything else. I am saying that as a matter of the performance of the legal regime regarding men, your statement is false. The typical outcome is unfavorable irrespective of the woman's behavior and civil marriage confers few, if any, legal benefits period, let alone ones that survive a wife wanting to nuke her marriage with a no fault divorce.

Mike, your comment has roughly the same value as pointing out that men get the short end of the stick in terms of protecting people and the country from harm. They give and they give and for what - to get people to tell them to their faces that they are pigs for having fought the "innocent peace-loving Iraqis just trying to make a living". The "benefits" are far less than the costs.

Sure, if you want to measure benefits in a direct, daily turn around sense. Men give a lot more than they get, directly. What they get out of it, though, is (if done properly) a peaceful, well ordered society which they help co-create, which is their calling, which is what constitutes their very personal human good. The same is true of any man worth his salt in terms of marriage: solid, stable marriages just ARE the basic building blocks of a healthy society, and part of that health is society formally, publicly, noting the marriages as they exist. It is possible for society formally doing it just by accepting the dictates of the church, but in a pluralistic society that has many churches and many unchurched people, you need something else as well.

Tony,

These are the sorts of commitments that many, many thousands of couples succeed in meeting even in this day and age. I know many couples who live these commitments, I could rattle off at least 3 dozen who live near me at the drop of a hat. This doesn't mean they are idyllic in the sense of having perfect family life, with everything in apple pie order and no shouting, nobody upset, etc. They are still humans with human mistakes, human sins, human pride and gluttony and so on. The reality is that the STANDARD requirements for marital commitments, as identified in the marriage vows, CAN be met by ordinary joes and janes when they both work at it pretty hard, without being out and out saints.

I'm going to maintain that there is a difference between 'loving and trusting each other absolutely' and 'striving to love and trust each other absolutely'. Yes, there are many Christians who take their marriages seriously, who go through efforts to make things work, etc. They deserve praise. But I think there comes a point where, in terms of the state, the costs of 'legal recognition' outweigh the benefits and should be circumvented when possible. I do not buy this idea that you're not in a 'serious marriage' unless you anchor yourself to state machinations. Do you?

In the case of marital infidelity, which is (from statistics as well as my anecdotal information) probably at least 80% initiated by men, the women are losing more than the men are, generally a lot more. In the case of finances, the women generally are losing more than the men. In the case of child custody, the men are losing a lot more than the women. Taken all in all, you can't make a case that men are on the severely short end of marriage failures in their effects.

I'm skeptical of your estimations, I admit. I think a case can be made that men are getting the short end of the stick institutionally - to say nothing of culturally. Even among Christians, sadly.

But the consequences ARE serious, for the kids, no matter what. If there is no legal matter for the state to get involved with, what happens to the kids in a separation? Does the non-custodial parent provide any support? Why, if there is no legal arrangement for the state to speak to?

I suppose that may well end up being a risk one takes when one gets married. I was being told that trust is essential, not safeguarding oneself in the case of calamity. But suddenly trust won't do?

If the state did not have a base with which to settle disputes about money and kids, then people would resort to knives and guns to settle them. Sometimes they do anyway, but that's because the state is so damned screwed up in how it manages things.

You're not exactly selling me on the importance of continued reliance on the authority of the state here, Tony. In fact, given that one of the apparently major reasons for the breakdown of the churches has been the rise of what amounts to a cult of government, I'm tempted to think you're just giving more reasons why the state's role should be increasingly obviated for now.

The only context in which I was talking about getting rid of state recognition of marriage was one where the state replaced it with something else, if not immediately, then within a very short period of time.

And I'd like to see that. I just think quite a lot needs to be replaced - legally and culturally. The only reason I bring up the failures of state marriage law is because Lydia appealed to the benefits, and Mike made a good point that was related to that. I do not think they are clearly outweighed by said failures.

I'm A-OK in principle with state recognition of marriages. I also think there comes a point where the state can screw things up so much that it's no longer worth getting involved in. Maybe we've finally hit that point.

But the fact that there is no such 'legal paper' involved committing the wife to the sort of life you describe doesn't seem to bother you at all. Why is it that one kind of commitment requires the force of the state behind it, but the other is in the realm of complete trust? Why isn't complete trust good enough for both commitments?

Crude, I'm not looking at this as some kind of war of the sexes thing. I can think of _tons_ of reasons to have civil marriage, as Tony says, if for no other reason than to provide orderly ideas of child custody. I'm not advocating marriage to "stick it to the man." Nor am I looking for marriage to put everything in writing--neither all of the obligations from husband to wife nor from wife to husband.

If you truly think that the current set of marital laws describes only rules for the husband, you've been reading the wrong kinds of blogs. Now, as it happens, the current set of rules are as far as their explicit aspects gender-neutral. In fact, most states have _removed_ (under feminist pressure) laws requiring a husband, specifically, to support his wife in the event of a divorce. That was unfair, you see, and the feminists didn't like the implicit chivalry, so they got it removed. The men's rights claim is that in practice things like child custody favor the woman, but that's not in written law, even to the extent that they are right. Basically, marriage allows you to tie a lot of things up together, and in the event of divorce, the person who earned the larger amount of "mingled assets" is probably going to lose more than the person who earned the lesser amount. That often is the husband, and that's aside from child custody.

But I'm scarcely talking about divorce in any event. I'm talking about marriage. Civil marriage. I'm not looking for anybody, the state or anyone else, to write up a contract specifying all or even most of both spouse's duties. I'm just looking for a recognition _of_ the union's existence, largely for the sake of recognizing the _family_ as a unit when children come along, and also for the sake of things like intestacy, benefits in the event of death, and the like. In other words, I'm far more interested in the state's duties to the couple than in the state's enforcing the couple's duties to each other.

The idea that I have some kind of intellectual inconsistency going appears to me to be a figment of your imagination.

Mind you, I wouldn't actually mind too much going back to the "bad old days" when chivalry actually was more enshrined in law and marriage was more privileged--for example, when an unmarried father really had no rights and couldn't stop an adoption. (In my own case, I'm lucky. It was still like that, so that was why I was able to be adopted. My highly unpleasant bio-father wasn't able to stop it, as he could today.) But that comment all by itself will make all the men's rights advocates howl with rage, and I don't really want to have any "dialogue" with them, so I'll leave it there.

I'm quite willing to stick with a situation in which men do _not_ have explicit state-enforced duties qua men but in which the non-custodial parent with a job does have the duty of providing child support in the event of a divorce. In any event, divorce law isn't what I'm here to talk about chiefly. I'm here to talk about the state leaving alone the intact nuclear family unless absolutely necessary to intervene. For that purpose, I believe the state's recognition of the marriage is a crucial puzzle piece.

for example, when an unmarried father really had no rights and couldn't stop an adoption. (In my own case, I'm lucky. It was still like that, so that was why I was able to be adopted. My highly unpleasant bio-father wasn't able to stop it, as he could today.)

Which is significant. I will point out that SCOTUS made a different decision, last Tuesday, which is highlighted in my more recent thread, on child custody in a case where the bio-parents were not married. Apparently, there is a tiny bit of media coverage (mostly washed under the DOMA coverage) indicating how SCOTUS is redefining adoption law, or some such business.

Generally, I am quite willing to see society not grant the father ANY RIGHTS if he is not married to her, and at the same time impose some support requirements on him (limited ones), even if he has no rights over the child. But only if society does so in a context of recognizing marriage itself as being the proper context of family and thus fatherly roles.

Crude, I'm not looking at this as some kind of war of the sexes thing. I can think of _tons_ of reasons to have civil marriage, as Tony says, if for no other reason than to provide orderly ideas of child custody. I'm not advocating marriage to "stick it to the man." Nor am I looking for marriage to put everything in writing--neither all of the obligations from husband to wife nor from wife to husband.

I did not say you were looking at is as a war of the sexes thing or it was about 'sticking it to the man'. What you said is that there are benefits that come with civil marriage - and I think there's more to it than just the benefits. Certainly now that it's pretty clear the SCOTUS intends to declare gay marriage a civil right.

Think of it this way. There are benefits to public school - I think even you would agree to that. But eventually - after one policy change and cultural shift and institutional failing too many - there comes a point where parents should say "to hell with that, we're homeschooling." I'm sure you're familiar with the various arguments people make on that front: you're harming the institution by leaving it, you're only making sure it will get even worse, you're sentencing other children and families to a further worsened system, you're pulling money away from the schools that could be used to improve it.

But past a point, that simply doesn't matter - even if it's all true.

If you truly think that the current set of marital laws describes only rules for the husband, you've been reading the wrong kinds of blogs. Now, as it happens, the current set of rules are as far as their explicit aspects gender-neutral. In fact, most states have _removed_ (under feminist pressure) laws requiring a husband, specifically, to support his wife in the event of a divorce. That was unfair, you see, and the feminists didn't like the implicit chivalry, so they got it removed. The men's rights claim is that in practice things like child custody favor the woman, but that's not in written law, even to the extent that they are right.

As the SCOTUS has reminded us time and again, the law that is actually enforced - and how it is enforced - is the only law that ultimately exists, when we're discussing the government. I'm not saying it's out of the question for a wife to be on the losing end of a divorce dispute. Just like I wouldn't say that all women are shorter than all men.

But I'm scarcely talking about divorce in any event. I'm talking about marriage. Civil marriage. I'm not looking for anybody, the state or anyone else, to write up a contract specifying all or even most of both spouse's duties. I'm just looking for a recognition _of_ the union's existence, largely for the sake of recognizing the _family_ as a unit when children come along, and also for the sake of things like intestacy, benefits in the event of death, and the like. In other words, I'm far more interested in the state's duties to the couple than in the state's enforcing the couple's duties to each other.

The idea that I have some kind of intellectual inconsistency going appears to me to be a figment of your imagination.

You were criticizing the very idea of someone getting married without legal recognition of their marriage, and strongly implied that anyone who did that - even if they got married in a Christian ceremony - was not taking their marriage seriously. You cited the benefits of marriage as one reason for this - so I pointed out that not all of the effects of marriage are benefits, reminded of it by Mike T. On the one hand, you strongly suggest that if someone refuses to throw caution to the wind and ignore any legal pitfalls and inequalities of marriage, that they're somehow failing to be sincere and shouldn't get married in the first place. On the other hand, you talk about the need for state oversight of marriage, and those 'duties to the couple' frankly tend to cash out as 'duties of one spouse to the other'.

Yes, I think there's inconsistency in there.

I'm quite willing to stick with a situation in which men do _not_ have explicit state-enforced duties qua men but in which the non-custodial parent with a job does have the duty of providing child support in the event of a divorce.

Nor do women have any explicit state-enforced duties qua women. You may be willing to stick with it - I am no longer sure that's a good idea.

Tony,

Generally, I am quite willing to see society not grant the father ANY RIGHTS if he is not married to her, and at the same time impose some support requirements on him (limited ones), even if he has no rights over the child. But only if society does so in a context of recognizing marriage itself as being the proper context of family and thus fatherly roles.

Well, that context sure doesn't exist. And, while none of us here are pro-abortion, I think there is obvious rank hypocrisy with a state that wants to say at one and the same time, 'A woman has utter control over her body and she alone can decide to kill her unborn child at any time. But if she decides to have the child, the father's on the hook.'

Ideally, I don't think these should be 50-50 fair-down-the-middle laws and expectations, precisely because I don't think men and women are fundamentally equal, much less interchangeable. But the sort of warping of civil marriage that we see goes beyond the gay marriage issue - it's simply that that's finally hitting the point where I wonder if it makes sense to continue trying to take it seriously, or resuscitate it through government intervention. Maybe treating civil marriage as, in a way, the only 'real' marriage out there is a mistake. Even polygamy would have been preferable to gay marriage in terms of negative effects on the institution.

Think of it this way. There are benefits to public school - I think even you would agree to that. But eventually - after one policy change and cultural shift and institutional failing too many - there comes a point where parents should say "to hell with that, we're homeschooling."

That's a bad analogy, because in getting civilly married the couple isn't agreeing to some kind of specific cultural or educational influence in their own lives or the lives of their children. If they were (e.g., if every couple who got a marriage license had to agree that any children born of the union would be sent to a state school), of course I'd have a different attitude. A couple that gets a marriage license and is legally married can have all manner of countercultural beliefs and ideas without anyone "sticking his nose in" and telling them they have to do or think otherwise.

On the other hand, you talk about the need for state oversight of marriage, and those 'duties to the couple' frankly tend to cash out as 'duties of one spouse to the other'.

I strongly disagree with you there. I'm thinking of, e.g., the fact that a father who is married to the mother has presumptive custody of the kids. A man whose wife has been in an accident and is unconscious is fully capable to give consent for all the treatment, etc., of a child who is also injured or sick. He has just as much custody as the mother, simply and solely because he was married to the mother at the time of the child's birth. He doesn't have to adopt his own kids for the state to recognize that. I'm thinking of the fact that both parents can educate their children in states that require home schooling to be carried out by a legal parent or legal guardian. I'm thinking of the fact that if either spouse dies intestate the other one presumptively inherits. I'm thinking of spousal social security benefits in the event that one spouse dies while there are still minor children. I'm thinking of all kinds of things that homosexuals want, which really, isn't for them to be forced to carry out duties towards one another.

Tony, you asked:

how far gone does the state marriage law have to get before there is no longer any point to supporting it? How far is too far? When the state permits explicitly temporary marriages, for 1 year or 2 years? When the state ceases to put any kind of crimp on surrogacy in any sense, so that people are in effect selling babies on the open market? When a corporation can "adopt" a child? When the state assigns kids away from parents who fail to pay their taxes? What conditions have to hold to say "no more"?

I would say there is no point in getting civilly married when the harm *to the couple* and to their kids outweighs the benefits *to them*. I'm not talking about getting civilly married because one wants to say, "Hey, I support what the State of Massachusetts means by 'marriage'." I'm talking about something more practical than that. For example, you raise the idea of kids being taken from their parents for failure to pay taxes. I would ask, in that case, is it more likely that parents will lose custody of their own children if they are civilly married or less likely? My guess is that the answer will always be "less likely." If they are taking custody from married parents for failure to pay taxes, you can bet that they probably aren't even allowing the single mom to take the kid home from the hospital, or that they are taking custody from her for much more minor reasons (such as general poverty). (In fact, I believe that is already true right now.)

I don't see what bad adoption law has to do with the matter. For that matter, I don't see what bad adoption and surrogacy law has to do with adoption! If one poor kid is getting adopted by a corporation (!) or by bad parents, that's all the more reason for good parents to adopt. The kids obviously need all the good options they can get.

Again, I don't view getting a civil marriage as somehow "signing on" to what the state means by marriage. I view it as getting something _out of_ the state.

I can dream up highly implausible circumstances in which one definitely shouldn't get civilly married. For example, suppose that in order to get civilly married you _literally_ had to go through a ceremony in which you burned a pinch of incense to a false god. (Now, predictable as the sunrise, one of the other people in this thread (and I _don't_ mean Tony) is going to say that it's really like that somehow, only metaphorically, etc., etc. That's why I said "literally," see?)

Suppose that everyone who got civilly married had to join the military, both members of the couple, for five years, but that unmarried young people didn't.

Suppose that everyone who got civilly married had half of their income, from both spouses, confiscated every year of the marriage.

Suppose that everyone who got civilly married had to agree to send their children to public school, but that unmarried people who bore children could home school them.

Suppose that everyone who got civilly married had to agree to be sterilized.

Okay, I could go on all day with these crazy scenarios, but you get the point. The point is that there has to be some direct, specific, concrete, real harm *to the couple* solely in virtue of getting civilly married, which they could avoid if they didn't.

But none of that is going to happen.

What I say we ought to do is to pour new meaning into civil marriage within our own subcultures. Look how this has worked out in the case of divorce. No-fault divorce was in place when I was a child, but people in the fundamentalist churches I grew up in didn't accept it. They didn't run out and research no-fault divorce law so they could try it out for themselves! Yes, yes, cue Mike telling us how the churches are very accepting of divorce now. My point is that for a long time they didn't, and there still are Christians who don't. My point is that people got civilly married and really meant that "forsaking all others, keep thee only to him" stuff, and they enforced it socially. The kids didn't grow up being told, "Getting married _just_ means unless you decide to get divorced." The more permanent meanings, much more permanent than what was actually written into the law, were poured into the civil contract, by its union with a religious ceremony and the religious meaning of the community.

In the same way, we can tell our children now, when they are old enough even for the subject to be an appropriate one, that homosexual "marriages" are not real even though (cue extreme expressions of disapproval) they are treated as such in some states. We can expect our kids to get civilly married for all the old-fashioned reasons. We don't have to just "accept" the way the world views things. Don't you think Mennonites get civilly married? And what do you think it means to them?

That's a bad analogy, because in getting civilly married the couple isn't agreeing to some kind of specific cultural or educational influence in their own lives or the lives of their children. If they were (e.g., if every couple who got a marriage license had to agree that any children born of the union would be sent to a state school), of course I'd have a different attitude.

The point of the analogy is that, even though there is value in wanting to defend, protect and build up the public school system, eventually you hit a point where it actually doesn't matter not only if you leave it, but that you are actually in some way harming it further. That well may be the best course of action.

I think it is in principle possible for marriage as a government institution to hit the point where it simply no longer is worth defending, or treating as somehow special or worthwhile. You can disagree that it's reached that point yet, but at least you'll see what I mean about it. Part of the problem here is that civil benefits to marriage are not the only thing worth considering here. There are cultural and perceptual effects.

A man whose wife has been in an accident and is unconscious is fully capable to give consent for all the treatment, etc., of a child who is also injured or sick. He has just as much custody as the mother, simply and solely because he was married to the mother at the time of the child's birth. He doesn't have to adopt his own kids for the state to recognize that. I'm thinking of the fact that both parents can educate their children in states that require home schooling to be carried out by a legal parent or legal guardian. I'm thinking of the fact that if either spouse dies intestate the other one presumptively inherits. I'm thinking of spousal social security benefits in the event that one spouse dies while there are still minor children. I'm thinking of all kinds of things that homosexuals want, which really, isn't for them to be forced to carry out duties towards one another.

You know, I recall one of the replies to the initial gay marriage push was - and you may or may not agree with this approach - that all of what you just listed could in principle be provided by laws without needing to grant 'marriage'. Perhaps we've discovered an additional possible reason to push for such things, regardless of the outcome of gay marriage.

In fact, right at this moment, I can't help but think that maybe now is the best time to continue the push for such legislation.

Perhaps we've discovered an additional possible reason to push for such things, regardless of the outcome of gay marriage.

Crude, I think that the reply to gays was that they already could do all these things. There are already rules and procedures to will your assets to a person that you are not married to. There are already rules for giving medical decision making power to a person without marriage.

As for the other ideas, like providing social security benefits, well the whole point there is that the spousal benefits make sense in a context in which one partner has given up making a living wage in the marketplace for the sake of raising kids. Take away the partnership's inherent orientation to raising kids, and the spousal benefit concept kind of becomes pointless - just a free hand-out with no rationale. As do most of the really significant benefits society bestows on marital status.

As far as I know, there is presently no process for laymen, as it were, to grant medical decision-making power over a child, except adoption. Usually what the homosexuals were bringing up was granting automatic (without signing anything) powers for one another.

There are several things that aren't, or weren't until this case, already possible just by filling out paperwork. One of them was highlighted in the DOMA case--namely, getting a federal pass-through on federal estate tax. You could designate someone as your beneficiary till the cows came home but he would still have to pay estate tax if the estate was over x amount, unless he was your spouse. Now the feds have to recognize a gay partner as a "spouse," if some state or other jurisdiction recognizes that person as a "spouse," but they still don't have to recognize a live-in boyfriend as a spouse. Same for social security benefits. Same for pension benefits, which Tony has already discussed above in the thread.

As for child custody, the hospital _might_ let the unmarried father make the decisions over the child and they might not. The way to be sure is for the unmarried father to adopt the kids. I think it's an abomination, and I don't use that word lightly, to imagine a situation where a devout Christian couple who consider themselves married "in the eyes of God" deliberately refuses to get civilly married and has the father adopt his own children after their birth. It could also not work, and there would be an inevitable period during which, legally, he would be "just the boyfriend," immediately post-birth before adoption was completed. What if the mother died in childbirth? The child could be left orphaned. It also deliberately brings the state into the marriage, which is extremely non-smart, because there has to be a home study and what-not for adoption to go through. Essentially, it says that the couple, which considers itself "truly married," nonetheless has no natural right to its own children, that the children are granted by the state. We do not want to go there.

As far as I know, there is presently no process for laymen, as it were, to grant medical decision-making power over a child, except adoption. Usually what the homosexuals were bringing up was granting automatic (without signing anything) powers for one another.

Off the top of my head, I think a medical power of attorney can do it. If Mom can make one out for herself, I think she can make one out for her child. At least a temporary one, anyhow.

Tony,

Mike, your comment has roughly the same value as pointing out that men get the short end of the stick in terms of protecting people and the country from harm. They give and they give and for what - to get people to tell them to their faces that they are pigs for having fought the "innocent peace-loving Iraqis just trying to make a living". The "benefits" are far less than the costs.

Sure, if you want to measure benefits in a direct, daily turn around sense. Men give a lot more than they get, directly. What they get out of it, though, is (if done properly) a peaceful, well ordered society which they help co-create, which is their calling, which is what constitutes their very personal human good. The same is true of any man worth his salt in terms of marriage: solid, stable marriages just ARE the basic building blocks of a healthy society, and part of that health is society formally, publicly, noting the marriages as they exist. It is possible for society formally doing it just by accepting the dictates of the church, but in a pluralistic society that has many churches and many unchurched people, you need something else as well.

Even in that situation, the military still compensates them very well and gives them opportunities when they're discharged that make it worth it. It is a real stretch to say that the average serviceman gives significantly more than what he gets back if he or she chooses to maximize what the military is willing to invest in them. So on that basis alone, your comment falls flat on its face.

That marriage is good for society and even good for men who are both willing to take on the responsibility and marry decent women is not the dispute. For some reason, Lydia in particular finds it highly offensive to observe that our society is rife with perverse incentives. Every time Lydia tries to sell men on the idea that modern civil marriage is still genuinely good for them, I call her out on that because it is not true since even the custody rights she speaks of are literally contingent upon the wife not leaving him. Prior to no fault divorce being enacted, none of this was true; the rights of men were actually pretty well balanced with their duties. Now all marital rights men have are implicitly said with "... contingent upon his wife choosing to not file a no fault divorce" append to them.

I'll also add that Lydia hasn't seemed to notice that my comments when I try to "derail it to my obsession" as she puts in one form or another always are a specific challenge to a specific point. I don't think any reasonable person would see it as more than a pointed attack on a particular point. I actually did the same thing to Jeff Culbreath every time he tried to get away from acknowledging the perverse incentives in our welfare system, and Lydia didn't seem to mind.

Ironically, I've actually conceded to Lydia that I was completely wrong in my former views that civil marriage is unnecessary. She now seems to be more upset at my assessment of its miserable state than when I disagreed with her that it was even a good thing to preserve at all.

Just possibly you hijacked a thread too many to make the point. But I will admit the point did come up here more or less naturally. At least in part. This is after all about state recognition of marriage.

Even in that situation, the military still compensates them very well and gives them opportunities when they're discharged that make it worth it. It is a real stretch to say that the average serviceman gives significantly more than what he gets back if he or she chooses to maximize what the military is willing to invest in them. So on that basis alone, your comment falls flat on its face.

I am not going to have the thread descend into an impossible-to-solve riddle of relative merits of the case, between a lowly grunt whose shoddy income qualifies him for food stamps versus getting a more-or-less free ride on education under the GI bill, or the "benefits" of free health care versus having to get that care from the VA and its long-lines and second rate doctors (sometimes, not always). It can't be settled. Suffice it to say that a Vietnam vet would for certain have had the right to say "the benefits don't outweigh the costs" during all of the 70's and 80's, and some of the vets of Gulf 1 and Gulf 2 wars DO say it now. The ones who don't (and I know many) are often the same ones who take pride in having done a worthwhile job even if nobody gives them a return benefit for doing so - exactly the kind of non-expense-sheet sort of return I was talking about for marriage.

Whatever the socially deranged effects of marriage law are today, it is not really possible to have a society where marriage is not recognized socially. Having that recognition stated explicitly in law inevitably leads to law carrying out a number of necessary social functions. Even if those social functions are now in the process of failing, it is germane to point out that the social functions are necessary to society. Saying that there are now perverse marriage law incentives doesn't undo that point. Saying that the body has cancer and thus mis-uses food to grow the tumor (and harm the body more) doesn't tell me that we can decide to stop feeding the body and short-circuit the way tumor deranges the body's use of it.

Mike, I appreciate your change of mind on civil marriage's existence at all. I admit that I hadn't realized that you had definitely changed your mind.

Please understand, once and for all, that I am not talking about some kind of male-specific benefits of civil marriage. In fact, I reject entirely the idea of taking one sex and saying, "For you qua member of your sex, civil marriage is a great benefit." That is not the way I approach it. Whenever I speak of benefits of civil marriage to the couple, I am treating the couple as a unit. "One flesh," to use a phrase I did not coin. I am _assuming_ the existence of a couple that are trustworthy to each other and are trying to do the right thing. I am not trying to "sell men" on marriage any more than I am trying to "sell women" on marriage. I am not asking either member of the couple to say, "Hmm, how does this legal state help me as an individual vs. making me too vulnerable to the other member of this couple? How badly wrong could things go if this got dysfunctional and my prospective mate wanted to hurt me or abandon me?" If you and I went at it along those lines, I have no doubt we would disagree about some things and agree about others, but I think that's an extremely unhealthy way even to approach the entire issue, either qua man or qua woman. Incredibly unhealthy. There is nothing to "call me on," here, because I am not trying to sell what you evidently think I am trying to sell.

Now, there could be reasons for the state to have civil marriage which would also relate to managing the fallout in dysfunctional situations. As Tony pointed out, in the event that the couple separates, custody rules either have to exist or have to be invented. But the reasons for the state to have civil marriage overlap only partly with the reasons why a good couple should want to obtain a civil marriage.

Sorry folks, I want to drag the discussion back to my particular obsession related to this post -- the issue of standing in the Prop 8 case. I just came across this brilliant analysis from Professor Epstein (who is a SSM supporter) who takes the majority to task:

SCOTUS Trips Up on Standing

The Supreme Court has long held that the judicial power has a standing requirement that lies in the path of any claimant who comes to federal court. That requirement is said, incorrectly I believe, to derive from Article III of the U.S. Constitution, which states that “The Judicial Power shall extend to all cases in law and equity. . .” The Supreme Court reads that provision to say that only parties with a discrete personal injury may sue in federal court. But it steadfastly refuses to hear persons who want to raise facial constitutional challenges to the law.

The requirement of particularized injury is met for the two plaintiffs in Perry and Windsor. Ms. Perry sued to get a marriage license. Ms. Windsor sued to recover from the federal treasury the estate tax paid after she was denied the benefit of the marital deduction when she had received the entire estate of her long-time partner Edith Spyer, whom she had married under New York law. The United States refused to repay the money, but simultaneously refused to defend Section 3 of DOMA from constitutional attack.

In the Federal action, the Supreme Court gave a group of Republicans in the House, the Bipartisan Legal Advisory Group, the right to defend the Treasury’s opinion, leaving it unclear whether the decision in favor of Windsor could have been challenged if the House had followed the lead of the President and the Senate. Just that situation came to pass in Perry—it was dismissed—when a five-four vote in the Supreme Court held that private interveners lacked standing to appeal the case within the federal system because they only had an abstract, and not a pocketbook, interest in the case, and could not therefore step in when the state bowed out.

So the litigation took a bizarre turn. It was not as though the District Court judgment was voided when the appeal was aborted. That lower court decision stood because no one had standing to challenge the law on appeal. Yet why should the willful refusal of public officials to defend their own law let the state win by default? Surely the Supreme Court should think twice before upsetting democratic institutions by conferring this veto power on state officials.

This regrettable fiasco, moreover, need not take place at all under any coherent account of the standing doctrine. Article III of the U.S. Constitution extends the appellate jurisdiction of the Supreme Court to cases “in law and equity.” The word “equity” was not some accidental afterthought, for these courts don’t usually award damages. They typically oversee complex transactions of corporations and large associations, including cases that challenge executives and boards of directors for acting beyond the delegated powers (ultra vires, is the Latin phrase, still in common use). No individual group member has a distinctive interest, which is why any group member can raise these challenges. The alternative is to let officers and directors disobey charter provisions with perfect impunity.

That same governance issue arises in cases involving the executive or legislative branches of the federal government. It is not an acceptable jurisprudence to keep courts from hearing cases of vital importance to the community at large. Citizens should be able to bring a constitutional challenge in equity even if they suffer no distinct injury. Both of the marriage cases belonged at the Supreme Court level, but the Prop 8 one was passed by in silence.

I have to admit, the more I think about the Prop 8 case, the angrier I get -- how dare the elected officials simply ignore their own Constitution. If the voters had any spine in that State, they would initiate impeachment proceedings.

how dare the elected officials simply ignore their own Constitution. If the voters had any spine in that State, they would initiate impeachment proceedings.

Am I remembering correctly that the officials in question were, at least in part, Republicans?

Whatever the socially deranged effects of marriage law are today, it is not really possible to have a society where marriage is not recognized socially. Having that recognition stated explicitly in law inevitably leads to law carrying out a number of necessary social functions. Even if those social functions are now in the process of failing, it is germane to point out that the social functions are necessary to society. Saying that there are now perverse marriage law incentives doesn't undo that point. Saying that the body has cancer and thus mis-uses food to grow the tumor (and harm the body more) doesn't tell me that we can decide to stop feeding the body and short-circuit the way tumor deranges the body's use of it.

This is beside the point I was making. As I said to Lydia in a thread where I admitted I changed my mind on the necessity of civil marriage... 90%+ of the people here agree with you on the necessity. Do we discuss the necessity over and over again or ask where are we at and what do we need to do in order to get to where we really want to be? That is the more difficult and conflict-fraught discussion. For example, I am unabashed advocate of restoring many traditional western patriarchal legal practices, such as giving literal legal headship to the husband such that a husband can generally veto by force of law many of his wife's actions outside of the household, but that really is another discussion.

That is not the way I approach it. Whenever I speak of benefits of civil marriage to the couple, I am treating the couple as a unit. "One flesh," to use a phrase I did not coin. I am _assuming_ the existence of a couple that are trustworthy to each other and are trying to do the right thing. I am not trying to "sell men" on marriage any more than I am trying to "sell women" on marriage. I am not asking either member of the couple to say, "Hmm, how does this legal state help me as an individual vs. making me too vulnerable to the other member of this couple? How badly wrong could things go if this got dysfunctional and my prospective mate wanted to hurt me or abandon me?" If you and I went at it along those lines, I have no doubt we would disagree about some things and agree about others, but I think that's an extremely unhealthy way even to approach the entire issue, either qua man or qua woman. Incredibly unhealthy. There is nothing to "call me on," here, because I am not trying to sell what you evidently think I am trying to sell.

I think this is where you err in policy prescriptions. You cannot assume that most couples will take a Christian perspective, thus as a Christian you need to work civil marriage such that it enforces much of our own ideals such as ensuring that laws governing divorce are unequivocally just and equitable to both parties and that the enforcement mechanisms work fairly. As I said, I'm not interested in selling men or women on marriage, I'm interested in examining the discincentives and repealing as many of them as possible so that civil marriage goes from a bad investment for the average man (who you are not targeting) to a decent one.

Whether or not marriage is abstractly a good or bad investment may not apply to particular couples. It would be foolish to tell a couple that obviously holds a full Christian understanding of marriage that their particular investment is bad based on variables that do not apply to them. However, what would you say to the average secular man dating the average secular girl? That's the rub here. There are ten or more of him for every man who may meet your criteria. So policy must address his needs with primacy and frankly, his odds of being shafted in court are substantially higher than the men you are talking about.

In fact, I think people who hold an orthodox Christian understanding of marriage are simply not a factor here. Even in their worst moments they're unlikely to apply a secular attitude to divorce and remarriage. If you wish to make civil marriage very important to the rest of society then it needs to properly handle those factors.

All that said, I think it behooves anyone thinking to get married to examine the statistics and compare their partner's attitudes against them. If the prospective husband or wife shows any inclination toward destroying their marriage and moving on, one should weigh the cost of going through the family law system. For men, this means that no matter how earnest her love seems now, if she shows signs that she thinks marriage is a bit more of "until boredom do you part" than "until death do you part" I'd say you'd be an idiot to sign up for that and not be prepared for the fallout.

So policy must address his needs with primacy

By this I mean the policy you propose must prioritize him well above and beyond the Christian man in a Christian marriage.

"Am I remembering correctly that the officials in question were, at least in part, Republicans?"

I think when the case first was litigated, Arnold was Governor so you are correct. I'm not sure if any other State-wide office holders were Republicans (or RINOs, in the case of Arnold). I'm glad he went back to making action movies.

You cannot assume that most couples will take a Christian perspective, thus as a Christian you need to work civil marriage such that it enforces much of our own ideals such as ensuring that laws governing divorce are unequivocally just and equitable to both parties and that the enforcement mechanisms work fairly.

Mike, if I were ever to write a post, which I doubt I ever will, on reforming marriage law, I will let you know my policy prescriptions along those lines. I doubt you'll think they go far enough, but whatever. We're not going to agree about everything. I understood that in this thread the entire issue of civil marriage arose because Tony said something which Crude picked up on concerning the symbolism of civil marriage being so undermined and degraded by homosexual "marriage," etc., that we should hasten its downfall in some sense in order to bring officials to their senses. Since I have little hope that officials, and esp. the crazy among the SCOTUS justices, will ever come to their senses, I think this a misguided strategy. In that context, my discussion of civil marriage was simply not at all about how to reform it from where it is to make divorce law or divorce practice more fair to men, to help out secular people to have longer-term marriages, or what-not. As I've said before, that is your "King Charles's head." There simply is nothing to "call me on" in this conversation, because when I spoke of the advantages of civil marriage, I was speaking to what I saw in Crude as the recommendation (as I understood it) that Christians, precisely *because* they hold a more traditional view, refrain from civil marriage as a kind of protest, and also that Christians hope that civil marriage comes to an end because (as we see it) the symbolism has become so degraded. I simply see a discussion of "how we should reform divorce law for the secular world" as not part of that discussion. After all, your average secular Joe may not particularly think that homosexual "marriage" has degraded marriage, anyway.

Jeff, I have similar concerns with SCOTUS's perspective on its so-called limits. Somehow, it manages to find that the Constitution itself prohibits its taking just any old case (in spite of the fact that it is the supreme arbiter of the meaning of the Constitution - at least according to its own lights), but when it actually gets down to interpreting law it manages to find all sorts of new rights, privileges, and mandates in it that nobody could find with a microscope or telescope.

On this Prop 8 standing issue, though, I did see one comment that made some sense. If the ordinary organs of the state refuse to defend the provision, that does not mean that the state itself has no right to defend the law. But in order for anyone else to take up that mantle and do the defending, the state has to delegate to them the right. If there is, for example, a state law that says "in the event the governor (and his delegates) refuse to defend the Prop, the proponents of the initiative are delegated to defend it in court", then this would be an example of the state itself causing the proponents to be the agents of the state as such for this limited purpose. (It is irrelevant, for these purposes, whether said law also specifies who pays for costs or anything else, although including in the law an explicit reference to the state paying for the costs would be another indicator that they are agents of the state). Nothing in state or federal law requires its agent be either employees or attorneys for the purpose.

The logic here is that it is perfectly possible for the state to make POSITIVE LAW to make sure its initiatives have adequate "representation" in the event of challenge when the ordinary organs don't want to act (or cannot be trusted to act) in support of the initiative. In the absence of positive state law, it is not for the Supreme Court, or any federal court, to assume that the state wants these specific 5 people to be the defenders of its laws, as opposed to the other 30 million people.

While I recognize the Court's logic here, I am not entirely swayed by it. The underling reality is that positive law cannot account for each and every possible strange event. That's one of the reasons the Constitution included "cases of equity", there are some things that are not entirely satisfied by asking "what does the law say" and nothing else. For example, suppose that the attorney general accepted the duty to defend the law, but intentionally did a really poor job of it in briefs, basically setting the law up for sure failure, and in oral arguments basically said something along the lines of "well, on that basis, no, we really don't have a leg to stand on." The fact that the governor's set policy is contrary to either an initiative passed by the people over his head, or by the state legislature over his head, should not mean that he can void them simply by being a scoundrel. And there is no SURE way to get around these types of problems by positive law set forth beforehand.

Generally, the court could have said it was taking the case for the sake of equity and be damned to whether any party had standing by specific injury. It is not feasible for "the people" to quickly pass another referendum appointing some special agent when the governor screws them out of their law passed by the MOST FUNDAMENTAL form of exercise of political power, just before the court decides whether to hear the case. Nevertheless, I would love to see Calif. quickly pass a law saying they are going to hold a referendum next week on whether the proponents can defend the law in court, and get the initiative passed before the district court re-tries the case. If there were some wily conservatives with some money and pull in the state legislature (to short-circuit the usual time constraint).

On the other hand, I more than half expect that the conservatives on the court WANTED to force the issue back to the district court (and throw out the initial decision) PRECISELY so that there would be no standing on-record decision that EVERY POSSIBLE preclusion of gay "marriage" is unconstitutional, and possibly they DON'T think they have the votes to prevent that when it comes up again (through whatever mechanism). It all rests on whether Kennedy thinks that the mere fact of precluding gay marriage is a violation of rights regardless of format, condition, other state law, etc. His opinion in Windsor pretty strongly suggests that he does, even though he didn't come out and say it explicitly. If they are interested in stalling the inevitable, I will be curious to see if other state governments pick up on the technique: If liberals, they refuse to enforce or defend the "no SSM" provision because they don't believe in it, and nobody has standing. If conservatives, they refuse to defend it (while they enforce it, following in the footsteps of the Obama Justice Department's illegal, scoundrel behavior), and again nobody has standing in federal court.

It sounds like the standing issue is very dicey and could have been argued either way. Not a knock-down either way. Epstein's reasoning would seem to grant _anyone_ standing so long as the suit is brought in federal court and is said to be over a constitutional issue. This seems like a recipe for a chaotic amount of litigation, mostly by leftists, eager to strike down everything they can lay their hands on. I would be willing to bet that Scalia and co. denied the standing because the argument in that direction was not entirely implausible and because they foresaw disaster if the case were judged by SCOTUS on the merits. Frankly, the fact that Kennedy wanted it to be judged on the merits bodes ill. I'm convinced he is now an utter activist.

Well, I am convinced that he is an utter liberal's liberal in the sense of what he thinks constitutes "good", the good of man and the good of society. Which means he is no Catholic in any sense that matters, given that he cannot BUT be aware of official Church teaching on the matter (or if he is ignorant, it is direct and willful ignorance, equally deplorable).

He may think he exercises restraint in some ways, but it's restraint about "imposing his point of view on others" only in the sense that liberals ALWAYS impose their views of toleration on others - we'll tolerate you when it has no effect on anyone, but we will not tolerate your differences when that affects things.

Lydia,

I'm fine with crazy liberals challenging state or federal Constitutional provisions all the time -- that's just the status quo! It just gets my goat that the people of California can't defend their own law in court and that judge Walker gets to have the last (for now) say in the matter.

Back to the subject of "abandoning civil marriage" -- I just came across a couple of posts from cannon lawyer Ed Peters on the subject:

Marriage (and I’m talking about marriage, not Matrimony yet) is part of the natural law and, I think, one just does not walk away from the natural law. Marriage was not abolished by Jesus, it was (under certain circumstances the Church has worked out over the centuries) raised by Him to the level of a sacrament we call Matrimony. But before anything else, Matrimony is marriage, and it never ceases to be marriage, and if whatever we’re talking about is not marriage then it CANNOT be Matrimony.

This is serious stuff: the Church proclaims some infallible doctrines regarding marriage (like, e.g., that marriage consists of the union of one man and one woman) and she proclaims some infallible doctrines about Matrimony (like, e.g., once Matrimony is consummated, it cannot be dissolved by any power on earth, something not true of marriage). Both institutions, natural marriage and its Christian perfection, are objects of doctrinal solicitude, which tells me, there’s something pretty important about both.

The vast majority of the world enters marriage (not Matrimony), and if the Church stops defending and promoting marriage, she abandons most of the human race to whatever havoc the Evil One feels like waging in its regard. But there’s still more wrong here with dumping marriage.

Many Catholics enter, with the Church’s approval, not Matrimony (as in the sacrament), but marriage only (as in the natural union). To suggest that we deal from now on only with Matrimony leaves Catholics in marriages (not Matrimony) with no recognition or support. Every way you look, this is a bad idea.

Look, I wish everybody were Catholic, that all marriages were sacramental, and that we could spend our time helping Catholic married couples better live out their vocation. But as long as marriage is ABSOLUTELY essential to the Church’s teaching on Matrimony, as long as most human beings enter marriage and not Matrimony, and as long as some Catholics live in marriage and not Matrimony, the Church has to stay in the marriage business and defend marriage itself.

AND

It is painful, of course, to watch the State’s definition of marriage careen toward something unrecognizable under natural or ecclesiastical law, but eliminating true marriages from the pool of unions treated as marriage by the State is not the solution to the State’s errors. Moreover, if the day arrives wherein State power is turned against a pastor who refuses a “gay wedding”, we must and will refuse cooperation with that simulation of a sacrament (e.g. 1983 CIC 841, 1379) as best we can (e.g. 1983 CIC 1370 § 3, 1373). But, that day has not arrived yet and I see no need to surrender societal goods (such as the convenience, and even meetness, of civil recognition of Catholic weddings) that have not yet been demanded of us.

Third, the Church’s interest in marriage predates and transcends the State’s, obviously, but the Church nevertheless recognizes the legitimate interests of the State in marriage and tries, in a myriad of ways, to accommodate those interests (see e.g. 1983 CIC 1071 § 1, n. 2). Sorting through those modi vivendi is not something for individuals to take upon themselves and to accelerate this discussion is not to go pedal-to-the-metal, folks! (Weigel did not suggest that, but we are posting before a public that does not always observe his prudence).

I generally find Dr. Peters to be a sensible Catholic voice in these matters.

Well, I did disagree with Peters quite sharply on the matter of homosexual Boy Scouts, where he seemed to me to be suffering from terminal naivete wearing a lawyer's hat, and I also differed with him over his insistence that that one priest who was deliberately challenged by an open lesbian was required to give her the sacrament (!). But all that being said, here he seems to be talking lots of good sense.

If that's the situation I think it was, the priest who denied her the sacrament should have been held up as a hero. I don't care whose funeral it is.

and I also differed with him over his insistence that that one priest who was deliberately challenged by an open lesbian was required to give her the sacrament (!).

That position also differs, I think, with what (then) Cardinal Ratzinger said in a letter to the Washington bishop in 2004, and with an article Archbishop Chaput wrote last year taking up specifically the canon law aspects of refusing communion to those in manifest dispute with the Church.