My Analysis of Judge Walker’s Proposition 8 Ruling, Perry v. Schwarzenegger, Legalizing Marriage Equality in California (and Possibly the Entire United States)

I finally got through the ruling from Judge Vaughn Walker in Perry v. Schwarzenegger which overturned Proposition 8 as unconstitutional and it is scathing.  I have never read anything worded this strongly other than Scalia’s dissent in Lawrence v. Texas where you could virtually hear the man shrieking with fists flying (and I say that having tremendous, enormous respect for Justice Scalia’s intellect, which at times, soars to the level of an apostle preaching legal gospel).

Perry v. Schwarzenegger was a total, complete home run for David Boies and Ted Olson, the famed liberal and conservative lawyers who took the case together after facing off in Bush v. Gore nearly ten years ago, because they won on every point of the law, including equal protection and due process violations.  (Olson’s wife, a major conservative television commentator, was killed because she was flying on the plane that crashed into the Pentagon during September 11th.)  They also succeeded in having gays and lesbians qualified as a historically disadvantaged suspect class eligible for federal protection.

It Will Be Extremely Difficult for an Appeals Court to Overturn the Judge’s Decision

Just as significant as the opinion itself, though, is the 60 or 70+ pages of “findings of fact” that make up the heart of the opinion because of how the United States legal system is organized.

In the U.S.A., appeals courts and the Supreme Court must, as a matter of rule, rely on the “facts” the trial court “found” based upon the evidence.  Unless the appeals courts can clearly see the evidence is wrong (e.g., a judge insists water is orange and not blue despite expert testimony to the contrary), the facts are considered settled and not open to debate.  They must be the basis upon which an appeal succeeds or fails.  Once in the record, you can’t introduce new evidence.  Think of it as framing the discussion.  They can’t be changed afterwords.

Walker found 80 facts based upon past Supreme Court rulings, expert testimony, and other evidence that are now no longer up for debate as far as the law is concerned. In other words, these things cannot be disputed in the appeals court. Or at least, not without moving heaven and earth.

What are some of these facts?  Hold on to your hat because they are so sweeping that I think it is going to be almost impossible for the higher courts to overturn the ruling:

  • Fact #19: “Marriage in the United States has always been a civil matter.  Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage.  Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.” Analysis: Judge Walker just settled as fact that religion has no authority to determine civil marriage contracts.  It cannot be used as a justification on appeal.
  • Fact #20: “A person may not marry unless he or she has the legal capacity to consent to marriage.” Analysis: Judge Walker just cut the “marry your dog or child” argument off at the knees because consent is required for a marriage to be legal.
  • Fact #21: “California, like every other state, has never required that individuals entering a marriage be willing or able to procreate.” Analysis: Judge Walker removed the ability for the appeals court to consider that having children is the reason marriage exists because we have never required that in the entire history of the United States.  It cannot even be debated, effectively.  One of the sources cited is Justice Scalia’s dissent in Lawrence v. Texas; he used Scalia’s own words.
  • Fact #43: “Sexual orientation refers to an enduring pattern of sexual, affectional or romantic desires for and attractions to men, women or both sexes.  An individual’s sexual orientation can be express through self-identification, behavior, or attraction.  The vast majority of people are consistent in self-identification, behavior and attraction throughout their adult lives.” Analysis: Judge Walker has laid the factual groundwork that the evidence shows sexual orientation rarely changes.
  • Fact #44: “Sexual orientation is commonly discussed as a characteristic of the individual.  Sexual orientation is fundamental to a person’s identity and is a distinguishing characteristic that defines gays and lesbians as a discrete group.  Proponents’ assertion that sexual orientation cannot be defined is contrary to the weight of the evidence.” Analysis: It can no longer be argued that sexual orientation doesn’t exist.  Furthermore, homosexuality is distinct from heterosexuality and is therefore a class.
  • Fact #45: “Proponents’ campaign for Porposition 8 assumed voters understood the existence of homosexuals as individuals distinct from heterosexuals.” Analysis: Judge Walker used the traditional marriage camp’s own actions and words to hang them, arguing that they know gays are a class and not merely a behavior.  They can’t say gay people don’t exist.

The Big One … Wait for It

  • Fact #46: “Individuals do not generally chose their sexual orientation.  No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” Analysis: Got that?  According to the facts that move up the court systems, most gays and lesbians are born that way and this cannot be debated.  Being gay is not a choice as far as the court system is concerned.  Game.  Set.  Match.
  • Fact #47: “California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in California.” Analysis: Judge Walker has removed the ability for the traditional marriage people to argue that the state is better off with more straight couples than gay couples.  The evidence shows there is no difference because all are just as capable to work, spends, etc.
  • Fact #50: “Same-sex couples receive the same tangible and intangible benefits from marriage that opposite-sex couples receive.” Analysis: Judge Walker in earlier facts I didn’t quote found that people who are married live longer, have higher net worths, specialize labor, and more.  This effectively shows the damage the state is doing to forbidding gays and lesbians from marrying.
  • Fact #51: “Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.” Analysis: The courts cannot say, “Well, every man has the right to marry one woman so it is equal treatment.”  That argument has now been taken off the table because the facts show that this would be like telling a Christian they had to worship in an Islamic mosque and not a church.  This cut off another major argument some traditional marriage supporters had used in the past.
  • Fact #55: “Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.” Analysis: The courts can no longer say that traditional marriage is harmed in any way.  Straight people are not less likely to get married and have kids.
  • Fact #61: “Proposition 8 amends the California Constitution to codify distinct and unique roles for men and women in marriage.” Earlier facts showed that no-fault divorce and other gender rules had been lifted decades or centuries ago.  The Prop 8 amendment tells women they can’t marry another woman because they are female (the same for men) so they are being discriminated against based solely on their gender.  If they were male, they would be able to get married.  The two genders must be perfectly equal in the eyes of the law.

The Second Big One … Wait for It

  • Fact #62: “Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples.  Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.” Analysis: GOT IT?  No religious group can claim their rights are being taken away because they cannot be forced to marry gays or lesbians.  There is no conflicting constitutional rights at stake.  This is huge people.

Walker’s Final Comments

Judge Walker’s opinion says that there is no such thing as “gay marriage” there is simply “marriage” and some men are being denied that right based on the gender of the person they want to marry (and visa versa for lesbians), which is unconstitutional because there is no difference in gender roles in marriage.

Furthermore, he goes on to say that there is no reason for restricting marriage based on gender except to tell homosexuals they are not as good as heterosexuals and personal religious beliefs, which have no role in a secular government.

By ruling this way, he slammed the door on polygamy.  Marriage, Walker says, isn’t changing.  The courts are just removing gender restrictions like they did race restrictions 40+ years ago.

What Does This Mean for Marriage Going Forward?

If I were a betting man, I’d say marriage equality is a done deal.  The debate is over because the final framing of the facts is going to make it a herculean task for the appeals court to override the Walker decision.

Within 5-20 years, as I’ve said before, being gay will be the same as having blue hair or wearing brown shoes.  It will be completely unremarkable and anyone who has a problem with it will be branded a bigot just like KKK members are now.  The demographic trends, legal foundation, and other sociological factors are just too strong to avoid it.

My Opinion on the Ruling

Personally, I wholeheartedly, 100%, totally, completely, and absolutely agree with Judge Walker’s ruling because the only argument against marriage equality is irrational bigotry.  The fact that many people feel this way is inconsequential just like our forefathers believed “negroes and colored people to be inferior” (besides, more than 90% of Americans were against interracial marriage and only 48% of Americans believe gays are immoral so if anything, this is far less controversial).

[mainbodyad]Allowing gays to marry will not cause straight couples to stop getting hitched.  It does no damage to religious institutions in terms of private practice or belief … just like racist wingnuts that teach their kids that blacks are inferior, people will still be free to say that lesbians are vampires that come from hell and work for the devil.  They just won’t be able to do it without being laughed at or chastised by their peers.

I’m not saying their beliefs aren’t sincerely held.  I’m just saying they’re irrational, have no basis in fact, and are nothing but inherited animus passed down without thought from generation to generation.  After all, the old testament said it is an abomination for Egyptians to eat with Jews and that I can stone my wife if she isn’t a virgin on the wedding night.  Just because our great, great grandparents believed something doesn’t make it true.  After all, these are the same people who thought the earth was flat, we were the center of the universe, and the sun was drawn across the sky by a bunch of horses.

So, Justice Scalia: I adore you, I really do.  Reading your opinions is like intellectual candy.  On this issue, though, you’re just flat-out wrong.  I hope you realize that by the time the case lands in your court but I doubt you will because, well, you’re old and probably don’t want to change your mind (and I say that with all respect).  Listen to your opera buddy Ginsburg on this one.  She’s right.

P.S.: As to the idiotic notion that Walker should have recused himself from the trial because he is reportedly gay, I simply offer a quote from a reader of The Atlantic:

If straight marriages like mine are truly impacted negatively by gay marriage, as many Prop 8 supporters claim, then a straight judge would have to recuse himself as well. He’d HAVE TO – because his group would (supposedly) benefit from Prop 8. If black judges shouldn’t be deciding civil rights cases because they benefit from the outcome, then white judges shouldn’t either, because civil rights legislation (supposedly) impacts whites negatively (fewer seats on the bus, etc.) so the white judge can benefit from the outcome as well. You can always turn the scenario around and see how the race/gender/religion/sexual orientation of the allegedly unbiased group is every bit as biased in a tangible way. This idea that only one group is biased is preposterous. The problem is so few people bother trying to see things from another groups’ view it never occurs to them that their group will potentially benefit from the decision as much as the other group.

Update: On June 25, 2016, the Supreme Court struck down the few remaining marriage bans, extending marriage equality to the entire United States in a decision reminiscent of Loving v. Virginia.  You can read my personal response here.

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  • John

    As a former gay-marriage supporter, I can tell you this: the entire debate will come down to what marriage, by definition, is and is not. Limiting marriage to straight couples is not discrimination if, and only if, marriage is something that by definition happens to exclude gay couples. Gay marriage advocates have been very coy about saying what marriage is and is not.

    The main reason why I am no longer a gay marriage supporter is that I realized that if you allow gay marriage, you are logically bound to allow marriages between 1 man and 5 women, 30 men and 50 women, etc. All of the reasons for limiting marriage to 2 people (natural law, legal tradition, etc.) have already been jettisoned to allow for gay marriage. Marriage as an institution becomes objectively incomprehensible.

    I am not making the slippery slope argument that “We can’t allow gay marriage because we’ll have polygamists cavorting in the streets.” I am saying that our definition of marriage should be logically consistent, and to allow gay marriage but not polygamy is to draw an arbitrary, unjustified line in the sand.

    It is not bigotry to say that marriage is something that, by definition, excludes gay couples any more than it is bigotry to say that marriage is something that, by definition, excludes polygamy. The factor that excludes both of them is natural law: marriage is a social, legal, and financial “becoming one” that is a recognition of a “becoming one” on the physical level during heterosexual sex. Marriage also has an undeniable link to reproduction: I doubt that anyone would make the case that marriage would exist in a world in which adult humans emerged fully formed from pods and child-rearing wasn’t necessary.

    The only biological system in the human body that is not inherently complete is the reproductive system. Unlike, say, the circulatory system or the respiratory system, which can fulfill their functions within one person, the reproductive system is only complete during the sexual joining of a man and a woman. A person is, in a way, only biologically complete during heterosexual sex. That is why the state has always recognized the marriages of infertile opposite-sex couples: the fact that those ends are frustrated does not diminish the biologically unifying and reproductive nature of the act.

    To draw an analogy, baseball teams are organized to win baseball games–that is their purpose. But a baseball team remains a baseball team even if it loses every game, because it still remains oriented towards winning baseball games even if that end is never realized. Similarly, heterosexual sex remains oriented towards reproduction and one-ness even in infertile couples where reproduction is never actually realized.

    Gay marriage is a contradiction in terms because gay sex is not oriented towards biological one-ness and reproductive ends at all. Marriage is a recognition of a biological reality that simply does not exist in gay couples. It is like a football team wanting to call itself a baseball team while continuing to play football games–even if you decide to be “inclusive” and let them call themselves a baseball team, that doesn’t change the fact that they are still a football team and not a baseball team.

    Marriage is an objective reality. It is some things and is not other things. It is not something that we can re-fashion at will. I ceased to be a gay marriage supporter when I started becoming more interested in the truth than in being politically correct.

    p.s. We are not on an inevitable march towards liberalism. Just look at the growing strength of the pro-life movement. Any argument that revolves around “Get on the right side of history” is logically fallacious.

    • Joshua Kennon

      Welcome to the site! Thank you for taking the time to post!

      Though your position may sound reasonable at first glance, it contains several major logical fallacies, misconceptions, and errors as regards civil marriage.

      (Please realize that I will be addressing only civil, secular marriage, not religious sacraments. A church, synagogue, mosque, et cetera is free to believe whatever it wants as to which marriages count, just as the Catholic church doesn’t recognize divorcees who get remarried without an annulment even though those marriages are lawful in civil court.)

      Logical Fallacy #1: You are employing circular logic. You say that marriage is defined as being between a man and a woman. Therefore, anything not between a man and woman is not marriage. It is a self-referencing equation. This is one of the first things young philosophy and economic students are taught to avoid because they have no foundation.

      This position would be equivalent to saying, “A Lexus is a car. Therefore anything not a Lexus is not a car.” or “Water is blue. Therefore any liquid that is not blue is not water.”

      Using this argument in the 19th and 20th centuries, Americans argued, “Marriage is only between a white man and a white woman. Therefore, anything not between a white man and a white woman is not marriage.” In fact, this was exactly the argument used by North Carolina when they amended their constitution in 1875.

      Misconception #1: The belief that removing gender restrictions on marriage in the United States would open up different forms of marriage, such as polygamy or incest. It would not.

      This is one of those arguments that sounds reasonable if you don’t understand how the constitution and laws of the United States are structured.

      It is not “arbitrary” to permit marriage equality but forbid polygamy, as you said, because the 14th amendment of the United States contains what is known as the equal protection clause. This has long been held to forbid discrimination on the basis of gender. The case law in favor of anti-gender discrimination is manifold.

      If two women to to get married in a state that forbids it, they are being denied the marriage license solely because of their gender. If one of them had different genitalia, they would have been permitted to get married.

      Recognizing marriage bans against same sex couples as a violation of the equal protection clause on the basis of gender permits marriage equality without striking down any of the barriers that exist on polygamy or incest. Those two things are merely straw man arguments by opponents who operate using fear.

      Misconception #2: You say that marriage is an “objective reality”. It is not. It is what is called a “social fact”.

      Marriage has not always been defined as a monogamous marriage between one man and woman woman. The Bible, for example, contains no less than eight (8) different types of marriages.

      Marriage was the very first for-profit corporate structure used by parents in pre-arranged transactions to facilitate wealth transfer. People seem to forget (or don’t realize) that the words that follow the centuries-old vows, “With this ring, I thee wed” are “This gold and silver I give thee”, at which point the groom would hand over bags of money to the bride. It was, for all intents and purposes, the pre-cursor to an S-Corporation with the various stockholders consisting of the bride, groom, and parents of each.

      Going further into history, at the time of Christ in ancient Rome, marriage was about owning a woman. The original wedding ring was worn only by women, and it was a symbol that the female was property held by her husband. In many ways, it was a sign of what we would consider slavery in modern culture.

      In fact, the idea of “romantic marriage” – where a man and woman find each other, fall in love, and merge into a single lawful entity – is so new that Christian author C.S. Lewis wrote extensively about the change in definition of marriage in his books. Today, it seems ridiculous. That was less than 100 years ago!

      This idea that “marriage has always been” is patently absurd because not only is it inaccurate, it also contains another mistake in and of itself: Just because an idea is old does not mean it is right. People believed for a very long time that certain dances could bring fertility or that the Earth was flat.

      Logical Fallacy #2: You are making an Ignoratio elenchi error by stating that a person is only “biologically complete” during heterosexual sex.

      That argument, while correct in and of itself for heterosexual people wishing to reproduce, is inconsequential to whether or not we permit people of a different sexual orientation to enjoy the benefits and protections of marriages in civil courts. In fact, it is so textbook ignoratio elenchi that I struggle to come up with a better example!

      (Side note: Whether you realize it or not, your implicit thesis about biological reproduction is the same one found in renowned atheist Richard Dawkins’ book, “The Selfish Gene“.)

      Another peculiarity of this position: You are referencing, indirectly, the concept of natural law. The word “natural” means “in nature”. Humans are in nature so anything we do is thus natural. (It may not be moral or right, but it is natural.)

      Less than two years ago, researchers in Texas had two male mice produce genetic offspring using stem cell technology, which will undoubtedly be expanded to same-sex couples within a few decades at the current rate of society’s advancement. When two married men can produce biological offspring in 2030 or 2040, de facto happening in nature since we are a part of it, the premise that biological reproduction should result in civilly sanctioned superiority would be invalidated.

      • John

        Hey Joshua, thanks for responding. I enjoy talking about this kind of stuff. I wrote a reply post earlier, but I think it didn’t go through for some reason, so I’m writing a duplicate. Please feel free to delete this if it shows up as a repeat.

        Response to “Logical Fallacy #1”: I went back and re-read my original post and honestly can’t see anywhere where I argued some version of “Marriage is defined as that between a man and a woman. Therefore, anything not between a man and a woman is not marriage.” Obviously, that would be an example of circular logic.

        Instead, what I was arguing was “Marriage is, by definition, between a man and a woman and here’s why. Any alternative definition either lacks a principled basis or renders marriage an incoherent term and here’s why.” You can disagree with my reasoning, but it’s not circular logic.

        Response to “Misconception #1”: Here’s the relevant quote from the 14th Amendment–“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

        As you can see, there’s nothing in there that explicitly refers to gender, and indeed the Equal Protection Clause has been used to overturn discrimination based on race, gender, sexual orientation, national origin, etc. It’s a blanket protection against invidious discrimination.

        Because of this blanket protection, there is no constitutional difference between a gay man who says “I was born gay and the state is discriminating against me by depriving me of the social, financial, and emotional benefits that would accompany me marrying another man” and a straight man who says “I was born with an exceptionally strong libido and the state is discriminating against me by depriving me of the social, financial, and emotional benefits that would accompany me marrying my three girlfriends.” In both cases, someone is being discriminated against and deprived of the social, financial, and emotional benefits of marriage simply because of their immutable sexual identity. Of course, you can try to make the case that people aren’t “born” polygamists, but I think you’d be hard-pressed to make the case that some men aren’t born desiring sex with multiple women.

        Therefore, one has two options, constitutionally speaking: one can either defend traditional marriage (by arguing that marriage has an objective definition that gay marriage and polygamy are simply excluded from, and thus it isn’t a case of invidious discrimination) or insist that the state has no business imposing any sort of limitations on marriage and those benefits should be available to all comers. Recently, more and more gay marriage advocates have been recognizing this need for consistency and are now championing this sort of “all comers” marriage policy–check out this article: http://www.firstthings.com/onthesquare/2006/08/robert-george-beyond-gay-marri

        This is not a “straw man” argument or one that relies on “fear”–as I said, I’m not arguing “we can’t have gay marriage because then we’ll have polygamists cavorting in the streets.” It’s a simple, frank recognition that there is no principled theoretical or constitutional basis for extending marriage to same-sex couples but not to polygamists–it’s both or neither. After all, to parallel your argument, just because marriage has always been defined in America as between 2 people doesn’t mean it’s not still discrimination–you’re depriving someone of social and financial benefits just because someone was born with a strong libido and needs to fulfill that with multiple wives. Who are you to impose your moral bigotry on other people? How does their marriage affect you? Etc.

        It’s important to realize that just because a law gives benefits to some people and not to others doesn’t make it an example of invidious discrimination. For instance, veteran’s benefits (social esteem, free healthcare, pension, etc.) aren’t given to people who haven’t served in the military, but there’s no problem because people understand that people who haven’t served in the military simply fall outside the definition of what it means to be a veteran.

        Response to “Misconception #2”: I’m actually pretty familiar with the ways that marriage has changed over time. I was an anthropology major at Princeton, so the whole “all moral values and social structures are relative to the societies that they are situated in” was pretty much gospel in most of my classes.

        Of course, there’s an easy reply. One can simply say that any of those societies’ definitions of marriage that weren’t “1 man and 1 woman” were simply incorrect because they violated natural law. The fact that different societies have had different definitions of marriage doesn’t mean that the definition of marriage is relative.

        To disprove this particular point, you have 2 options. You can either argue that natural law is wrong (the option that I would recommend) or you can argue that objective moral values don’t exist (not a very intellectually persuading option). Different societies also had different definitions of who could be enslaved, but that doesn’t make slavery any less objectively morally wrong. Also, philosophically speaking, moral relativism is self-refuting because “There is no such thing as objective moral truth” is itself a claim to be an objective moral truth.

        Response to “Logical Fallacy #2”: I can tell by your response that you’re unfamiliar with natural law, so I’ll try to give a short explanation. Natural law was originally formulated by Aristotle and was later popularized by the Catholic Church, although it has many secular proponents. In short, it states that we can derive objective morality from the way that nature is “meant” to operate and things are wrong insofar as they go against that purpose. An example: everyone knows that the gag reflex is meant to expel rotting food, so it’s wrong to abuse this reflex so that you can lose weight.

        Natural law’s main philosophical opponent is utilitarianism, which makes everything about overall, net flourishing. Of course, the problem with utilitarianism is that it’s hard to critique things like bestiality (assuming that both the animal and the human enjoy it and there are no health consequences, what’s the moral argument against bestiality other than that it’s “unnatural”?) or murdering people with Downs syndrome and sending the money you would have spent taking care of them to Africa to save starving children (more bang for your buck).

        What natural law does not claim (and where I could tell that you were unfamiliar with it) is that everything found in nature is according to natural law. For instance, in nature we observe people who are born genetically predisposed to become serial killers, and go on to kill people. But this isn’t the way that nature is “meant” to be functioning, and so their actions are still against natural law.

        So what does this have to do with gay marriage? Anyone, even someone who isn’t religious, can recognize that a man and a woman are “meant” to go together, and that a man and a woman having sex are biologically complete in a way that two men or two women simply aren’t and cannot be. As you said, you recognize this, but you label it an “ignoratio elenchi” error–true but irrelevant.

        So the main question is: is it irrelevant? Well, it all goes back to what marriage is, by definition: a public recognition of two people becoming one. So it seems that biological “one-ness” has a clear and obvious relevance. Gay marriage is a contradiction in terms because you are publicly recognizing a one-ness that simply isn’t there to recognize.

        Response to “Second Reply”: Sorry, I should have clarified my statement. What I meant is that in a theoretical world where adults emerged fully formed from pods, there would be no state recognition or regulation of marriage because there would simply be no reason for it to do so.

        Think about it this way. Why do we issue marriage certificates but not “best friend certificates”? It is not that we are saying that marital relationships are morally superior to best friend relationships, that best friendships can’t be emotionally fulfilling, etc. The reason is simple: marriages involve sex, sex produces children, and since children are the means through which a society replicates itself, the state has a vested interest in regulating and recognizing marriage. It doesn’t formally certify best friendships because there is simply no state interest involved beyond a vague, grasping-at-straws notion of “bringing stability to the community.”

        So in a theoretical world in which sex did not produce children, and monogamous sexual relationships had no more relation to children than monogamous tennis relationships do in ours, the state would have no legitimate interest in regulating or recognizing monogamous sexual relationships and it would not do so.

        I have a honest, straightforward question for you. Can you define for me what marriage is and is not, and how you justify drawing the line where you do?

      • John

        Actually, just delete my first reply to this post instead of the second one if there are duplicates. I clarified a few things in my re-write.

    • Joshua Kennon

      P.S. You state: “I doubt that anyone would make the case that marriage would exist in a world in which adult humans emerged fully formed from pods and child-rearing wasn’t necessary.”

      I say this respectfully: I would make that case strongly. Most people I know would make that case strongly, as well. I think your assertion shows a deep lack of understanding of basic human psychology and physiology. I think it also borders on prurient, reducing some of the best things marriage has to offer, such as love, commitment, stability, companionship, and a shared purpose, to nothing more than a mechanism to pass on genetic material.

      Thank you, again, for the comment. I hope you stick around the site in the future and post some more!

  • Joshua Kennon

    It is late and I need to go to bed since I have to be up in a few hours but I will answer your last, and most important, question before I turn in for the night:

    I define marriage as “a publicly recognized covenant in which two individuals, acting of their own volition and wishing to create a permanent bond for the purpose of working toward mutual objectives of emotional, physical, and personal fulfillment, merge into a shared legal and economic partnership unit that results in unique responsibilities and privileges being vested in each party for the protection of the other, as well as that of society as a whole.”

    • John

      Ok, then would you mind explaining how you justify limiting it to 2 individuals?

      • Joshua Kennon

        In the context of civil marriage, the state has a compelling and rational economic interest in limiting the number of participants of a marriage given the incentive benefits provided as part of the goal of creating stable households (e.g., Social Security, Medicare, Medicaid, exemptions from inheritance taxation, spousal privilege in the event of a crime, etc.)

        Were the state to permit multiple party marriages, theoretically every American citizen could marry every other American citizen and be entitled to unlimited Social Security income, unlimited inheritance, unlimited medical benefits, unlimited spousal privilege, unlimited immigration access, ad infinitum. The United States government would be bankrupted, prosectors could not convict anyone of a crime, and there would be no restrictions on new citizens, leading to fiscal and societal collapse.

        The possibility of this outcome virtually assures that rational scrutiny would be the appropriate review standard used by the courts, which is the lowest basis for upholding a law in light of a constitutional challenge.

        • John

          Lol is that actually your argument?

          If you’re going to use that sort of argument, you might as well say that we can’t have gay marriage, because theoretically all the men could pair up, all the women could pair up, and no one would have babies anymore and thus the state is justified in forbidding gay marriage in order to ensure that American society continues to reproduce and survive.

          But since neither of those scenarios would ever happen (not sure how you think that that sort of scenario would pass “rational scrutiny”), you have to stick with the sexual identity discrimination framework under the Equal Protection Clause. Haha I like your style though.

        • Joshua Kennon

          I’m not talking about normal people having a conversation, I’m talking about rough legal strategy.

          That is: You didn’t ask how I’d win marriage equality, you asked how I would defend against a challenge to polygamy. You would have to consider the current case law and stare decisis. The state only needs to prove that the legislature had a so-called “rational basis” for enacting a law, not that the legislature was actually correct. I would convince Kennedy and Roberts that the removal of limits to admittance of marriage contracts would result in an untenable financial burden to the states, representing a “material hardship” to taxpayers. This is the same court that gave the state drastically expanded powers of eminent domain, throwing poor people out of their homes to allow rich land developers to increase the property tax base. This is the same court that ruled corporations are people. The money argument always wins. It could pass the lowest constitutional scrutiny test. I’d wager a significant sum of cash on it. Know your audience.

          Your counterargument would be immediately rejected because you are once again returning to the (legally, anyway) settled position that marriage is not now, nor has it ever been, about biological reproduction. In the Perry case we were discussing, this was detailed in finding of fact #21 (ref: “California, like every other state, has never required that individuals entering a marriage be willing or able to procreate”.) You could not challenge the findings of fact if we were both standing in front of the Supreme Court. It’s against the rules. They are settled.

          It would also be easy to refute. Even if marriage were changed to require biological quotas, you assume that if all of society consisted of gay and lesbian couples there would be no reproduction. That is demonstrably false. Neil Patrick Harris is gay and has biological children. Ricky Martin is gay and has biological children. Elton John is gay and has biological children. Clay Aiken is gay and has biological children. If all of society were 100% gay and married, there would still be biological reproduction because people desire children. It’s a deep seated genetic need.

        • John

          Lol if you want to believe that you could go in front of the Supreme Court and argue “Well, your honor, this discrimination is justified because theoretically the citizens of the United States could conspire and form a 300 million person marriage, and this is a likely enough scenario that the state is justified in its actions” and Kennedy and Roberts would say “Well, that sounds like the state had a good reason for what it did. I’m sold” then I’m not really sure what to tell you. They’d laugh you out of the courtroom.

          Also, it should be noted that some of your perceived consequences wouldn’t be an issue. Social security would just be split among the various spouses, not multiplied by a set amount, so it would remain the same total dollar value. Same goes for inheritance, otherwise we’d already have this issue when a person dies without a spouse and leaves their property to their children–property is split, not multiplied by a fixed amount. Same goes with Medicare. Spousal privilege and immigration I’ll give you, but anything with money would just be split, not multiplied by a set amount.

          But there’s an interesting undercurrent to this argument. In making this argument, have you abandoned the idea that you can make a legal case that marriage is inherently between 2 people? That in theory, there’s no constitutional difference between gay marriage and polygamy, and so you have to get into these farfetched scenarios?

          As for the California facts, I wouldn’t make the fertility argument. I’d make the natural law argument that marriage is a social recognition of one-ness, that that biological one-ness only exists with a man and a woman, that gay marriage requires the state to recognize a one-ness that simply isn’t there, etc. Thus, marriage has an objective definition that happens to exclude some kinds of relationships, but one that a state is perfectly justified in enshrining in its law. Objective truths that happen to exclude some people do not fall under the Equal Protection Clause, only invidious discrimination. If other states would prefer to abandon any objective definition of marriage so that they can be more inclusive, they have that right, although I believe that it’s wrongheaded legislation.

        • John

          On a side note, I thought you might find this article interesting: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155

          It’s a piece by some Princeton professors that appeared in the Harvard Journal of Law and Public Policy. Even if you’re not a proponent of traditional marriage, it’s always nice knowing what the other side’s arguments are.

        • Joshua Kennon

          Haha! You have no idea how much I’ve enjoyed this exchange. Honest to God, my real response is a multi-thousand word essay on “bright line” rules and the necessary arbitrary nature of some laws, which would not be permissible if you determined, as I think the courts inevitably will and, in some cases, have hinted, that sexual orientation is a protected class subject to heightened scrutiny, and thus different rules, whereas polygamists would not be.

          But then it got unwieldy for the comments section, I was tired, and I thought, “He probably won’t know the difference. Most people don’t. I’ll go with something simple and play Civilization V.” After which I proceeded to build the Egyptian empire against William of Orange, who is my only real threat, before turning in for the night.

          You didn’t let me get away with it. You have no idea how much I like you right now, John.

          Too bad you don’t live near Kansas City. I would meet you at a Starbucks to actually discuss the topic in person since it would be so much more efficient than the non-nested comments we are leaving since we’ve hit the sub-thread limits. It’s also sad I moved out of Mercer County at the tail end of 2005. We apparently just missed each other in New Jersey by a few years. I wrote much of my first book in the Panara Bread on Nassau Street.

          You know, we could both right essays taking opposite positions, publish them in PDF, and post them side-by-side on the politics section of the blog. We’d have to set the ground rules and a deadline, but it might be fun.

          If you’ll permit me one other tangent: Why anthropology?

        • Joshua Kennon

          P.S. I just realized, in what might be the most ironic moment I can remember, that I am sitting here at work, at my desk, responding to your other comment, and typing as I partake in a delicious piece of leftover cake that is in the refrigerator for everyone to enjoy.

          That cake came from a same-sex wedding a few days ago. I am literally eating gay wedding cake as we discuss this topic.

          Perhaps the conversation made me subconsciously crave the delicious cake that I knew was only a few rooms away … unfortunately, all the cherry cake with white buttercream icing had been taken because everyone beat me to it. I had chocolate, instead.

        • Des

          I realize this thread is far too old to be commenting on, but I stumbled on it after deciding I loved this blog so much that I had to read every post, starting from the beginning. 🙂

          I have to agree with John here, that gay marriage will indeed open the door to polygamy – but in it’s time that will be a *good* thing. You are correct that our social structure and mores make plural marriages untenable right now. But 70 years ago that would have been true for gay marriage. Men went to work, women raised kids. Who would raise the kids in a marriage between two men? Who would earn money and fix things in a lesbian marriage? It would have taken a major paradigm shift for someone in the 1950s to foresee a future when men and women would share these tasks (relatively) equally. But now that they do, the requirement for a man and a woman in a marriage is deprecated.

          In that same vein, things like Social Security benefits and inheritance taxes do prevent plural marriage from working. For now. Once we have universal healthcare, the idea of “family plans” for insurance will be deprecated. I know plenty of Millennials and late Gen-Xers who don’t intend to marry at all, seeing the high divorce rates of generations past. If we end up with a society where life-long monogamous relationships (what we currently think of as “marriage”) are the minority it isn’t unthinkable that our social structures will change to meet the new dynamic. Such a world is just a major paradigm shift for us in the present.

          Even now you can feel the younger generations attitude towards children changing, with more and more people choosing not to have them because the cost-benefit analysis of one partner giving up their career (or trying to manage a hectic two-income family) doesn’t favor children. But add a third person to that relationship and now you can have a stay-at-home parent AND still enjoy the benefits of two incomes. That’s a win for everyone (parents and children). Or, if we really can’t believe that our grandchildren can overcome their jealousy issues, what about two sexually monogamous couples that each want one child, but form a joint household so their children can have a sibling, and to enjoy the above-mentioned economies of scale?

          When we, in our current frame of reference, think about polygamy we imagine religious fanatics that use their positions of authority to ensnare many wives. Or, we imagine our own marriages and have strong negative feelings about adding more people. But once we get there, I don’t think progressive people will be fighting against plural marriage.

  • lokgp

    This is the best discussion I have seen on the blog so far. This is far better than a voice to voice discussion, as it leaves a paper trail, for others to study and reflect on. I mean it leaves a storage of the discussion.

    I think John pretty nailed it right. A football game is a football game. I cannot define it precisely, but I know it when I see it. And a baseball game is a baseball game, no matter how you argue it. I know I am approximately right even I cannot define it as precisely as you.

    I think the problem is to use the word “marriage” in this context. It needs a new category to define this, perhaps a “lesbian union” instead. This is similar to the context of “orange juice” versus “orange fruit drink”. They look and taste the same, but they are not the same.

    And therefore, a new term needs to be coined and legislated for the union of similar gender. First, because it is different from marriage. Second, we need to avoid anchoring similar gender union as marriage, just as similarly we cannot anchor that a concocted fruit drink is similar to fruit juice. Avoidance of anchoring is necessary as to avoid blurring in recognition and misconception.

    Think of it this way, when we mix black tea with hot water, we call it a black tea drink. And when we mix milk into it, we call it milk tea drink. Its a different category all together.
    When a chinese have children with a danish, we can no longer call the kid chinese or danish, it is of a different category. And we should avoid anchoring ourselves into thinking that the kid is chinese or even danish. Higher up the level, we are all homo sapiens. And being in the same homonidae family does not mean monkeys are humans.

    As we cross bred various species, we will produce new species and new category of items. Eg: Swiss army knife…. its a new category, its not knife, nor scissors.

    Therefore, it becomes necessary to create a new category to define same gender union, rather than mix it up with marriage.
    Just as we call Swiss army knife into the category of multi-purpose knife, we don’t change the original name and definition for knife. We keep it intact or call it single purpose knife. But it is certainly inaccurate to call a Swiss army knife a knife.

    What we need is a new word to be coined for same gender union. We can call them gay marriage as in the case of multi-purpose knife. But it is inaccurate to call gay marriage a marriage. First, this produces a internal conflict. Therefore a new word need to be coined so that it is more comfortable to be used for such union. Ultimately, all unions are call union, be it polygamy, monogamy, heterosexual, lesbian, or gay.

    And like what John said, there is nothing wrong with polygamy or monogamy. As long as it does not hurts anyone. But there is always opportunity cost. That a polygamy might deprive someone else for a union. So, will same gender union. There will be a social change and opportunity cost.

    At the same time, it also means there is nothing wrong for a wife or husband to have sex with anyone as long as there are mutual consent. It does not hurt anyone materially. Emotional damages cannot be defined and measured. So does same gender marriage, it does not hurt anyone and any emotional damage induced on other cannot be defined and measured. All these logic simply blurs things up instead of making things clearer. But I know it when I see it is one guide that no AI, written laws can match accurately, which is why we have the court to decide based on human judgement which are always subjective rather than objective as written codes.

    In summary, a new term needs to be coined to reclassify this same gender marriage and to allow it in law. As for the acceptance as norm, we’ll just leave it to the social rules to decide. And social proof will make it the norm. I forsee a human pod future with more female unions as disparity of wealth widens, and also that will encourages male union. It will be unstoppable, unless another world war happens.

    That cake might have anchored you with reciprocity and association. Something to think about. We are all humans and can be influenced. If I ate a wonderful gay marriage cake, I might have also accepted that gay marriage is great! even though I did not attend it, simple due to the association that I will make.

    • Even though I don’t agree with his conclusions, this remains one of my top favorite exchanges in the history of the blog because John’s framework was perfectly consistent and wonderfully argued. I invited him to write a guest post on the site – the only time I’ve ever done that for anyone on any topic – and he never took me up on it. I’m guess he wanted to keep his relative anonymity.

      I would agree with you, actually, in your premise that “you know it [marriage] when you see it”. Where the disagreement comes in is what it is we are examining. I find it very helpful when I’m studying different topics to make myself define words. I know that sounds almost silly, but it’s a remarkable tool because it uncovers your implicit assumptions.

      For example, if I said, “Define God”, some people would said, “The entity that created humans.” Someone else might say, “Well, we could have been made by aliens or evolved, so the entity that kicked the whole things off.” Someone else might say, “Anything that is so powerful the laws of the universe as we know them don’t apply.”

      When we are talking about “marriage” – the civil contract, not “holy matrimony”, which is a religious rite that differs by beliefs system and is vastly different in various parts of the world – I define it as, “a publicly recognized covenant in which two individuals, acting of their own volition and wishing to create a permanent bond for the purpose of working toward mutual objectives of emotional, physical, and personal fulfillment, merge into a shared legal and economic partnership unit that results in unique responsibilities and privileges being vested in each party for the protection of the other, as well as that of society as a whole.”

      That is because it is consistent with what happens, legally. Marriage and adoption are the only two mechanisms we have in almost all developed civilizations for forming new, legal, recognized family bonds. So while the parties involved may be different (e.g., a black man and white woman; two men; a Chinese woman and white man), what is happening is the same. Therefore, refusing to call it “marriage” is really nothing more than a form of subconscious bigotry and prejudice caused by cultural conditioning. There is no rational reason for it.

      In other words, to borrow your analogy, you may like vanilla, I may like caramel, and someone else may like chocolate, but ultimately, it’s all still going in a latte. Sure, they differ in some respects, but in the end, it’s the same thing with only a few variations.

      • lokgp

        Yes, yes, Joshua, you said the right term: a civil contract.
        The problem is when we associate marriage to holy matrimony, where marriage becomes a short-cut word that means holy matrimony. And this association causes disgust when gay marriage becomes gay-holy matrimony. Hence, I think a new term needs to be coined to avoid confusion and encourage acceptance. They are not the same thing though.

        But it is also interesting to note that the court might make it compulsory for the church or any other religion, or cultural to accept it as a holy matrimony. This could very well happen and it will then become a direct attempt in blurring the lines of biology.

        If you come to think of it, in those very very old days, marriage is not even necessary. People still form families with or without the civil contract ruled by law. In fact, it still happens in various poorer country where the rule of law is not really strong, which is instead governed by social contracts and norm. No signing is necessary to announce you husband and wife.

        It is inaccurate to discriminate between gay couple husband or wife, or father or mother, simply because these terms are gender related. 2 fathers or 2 mothers. Having a gay brother and 1 sister, does not make me have 2 sisters.

        In other words, the law may recognise a gay or lesbian couple, forming a civil contract, and lawfully wedded. But the religious groups shall not recognise them as a couple as defined as holy matrimony. It would be interesting to see how gay marriages can occur in churches. This is bound to happen, and the pastors will use words like ” Today, we witness the holy matrimony of Michael and Bill….” I think I get what you mean. Lawfully wedded does not mean religiously wedded. If a new term is used to separate that, it would then be really good.

        Even if the law is to allow polygamy, it does not mean it is religiously correct and vice versa. Eg: it is religiously correct for Muslims to have 4 wives. Under some country’s law, 3 of the wives are not recognised.

        I really like this exchange between Joshua and John, as we have one person on the “long” side, and another person on the “short” side, both equally knowledgeable, and no vulgar words used.

        Gay marriage will still cause conflicts and wide discussion in the foreseeable future. But it is likely to be accepted as normal in 100 years. How many gays and lesbians are there for every 1,000 people in United States? Any clue?

        Ah, I just got reminded of this quote, which is relevant here:

        “How many legs does a dog have if you call the tail a leg? Four. Calling a tail a leg doesn’t make it a leg.” – Abraham Lincoln

        • I’d have to agree with you, because of the country in which you live, that your concern is a valid one when you say:

          “But it is also interesting to note that the court might make it compulsory for the church or any other religion, or cultural to accept it as a holy matrimony.”

          Here in the United States, freedom of religion is so strong that you can discriminate any way you want as long as it doesn’t affect public accommodation of businesses. For example, if you were a racist and you only wanted to let white people in your Church, and let white people get married, you could. You could not, however, only let white people rent out a banquet hall as that is considered a “public accommodation” business and you are required to serve anyone who is able and willing to pay, treating them equal to everyone else. The same goes for things like adoption services (e.g., such a church that ran an adoption agency couldn’t refuse to place children with non-white families).

          There was a high profile case in the United States last year of just such a church, refusing to marry a black couple. As horrible and bigoted as it is, as long as they do not allow any other non-church members to use the facilities and they apply the rule uniformly, they can do it under freedom or religion. That’s how powerful the 1st Amendment of the United States Constitution is.

          That is not the case in Canada, Great Britain, and several other nations. I’m guessing your country is the same way because, if I recall, while your government promises freedom of religion in its constitution, in practice, it is far different. Even though most people are free to believe what they want, and worship how they want, there is a law that requires all citizens to officially be Islamic. Non-muslims who want to marry any citizen who is Muslim must first convert to Islam. What’s even more confusing is the enforcement of these laws varies widely by state. Thus, the paradigm in your part of the world is not comparable. I have no idea, nor insight, as to how such a development would be met by your culture as I don’t have enough experience with it to run it through the mental model tests.

          At least, here, in the United States, the question of Holy Matrimony is an interesting one as there does not seem to be an agreement. The Episcopal Church, with 1,900,000 members and the United Church in Christ, with 1,000,000 members, both marry gay couple in holy matrimony and consider it identical to straight marriages in doctrine, casting off the old restrictions just like slavery and forcing women to be subservient. The Presbyterians don’t have anything written about it in their beliefs but they do permit individual clergy to bless unions if they believe it. Certain Jewish congregations also fall into this category.

          The Pew Forum on Religion & Public Life tracks beliefs on same-sex marriage by religious denomination for the United States. It’s a fascinating graph. White mainline protestants and Catholics support it by a strong majority, with the lowest group being White evangelicals, where only 23 out of every 100 believers support it.

          Though I still support marriage equality as a matter of human rights, intellectual honesty requires me to confess that, in certain countries around the world without strong legal and constitutional protections that guarantee, both in theory and in practice, nearly unrestricted freedom of religion, the question is not nearly as simple and clean as it here in the United States.

  • WardMD

    Let’s see…

    For your “Big One” – #46 – Researchers have now PROVEN that there’s NO DNA aspect to being GAY. Got it? You’re NOT “born that way” – it’s a CHOICE!

    So, what do you say of Ellen DeGeneres’ EX-Lover: Anne Heche… They were a COUPLE for 3-1/2 years – then WHAT HAPPENED? Anne decided she WASN’T gay – and left Ellen for A MAN…

    Was THAT all a LIE (either her “gay-ness” with Ellen) or her CHANGING her sexual orientation to STRAIGHT?

    Then your “BIG ONE” – #62 – you STILL standing by that one?

    Right NOW, there are pastors in Idaho being threatened with JAIL and FINES if they refuse to conduct same-sex marriages – in DIRECT VIOLATION of their Religious beliefs and teachings.

    Even Muslim Imams are being similarly threatened!

    So much for YOUR argument…

    Then, there’s the “you can’t marry your dog, because marriage requires CONCENT”…

    That, too, has been proven WRONG (albeit in England) – there a woman HAS married her dog.

    We have THREE women in Massachusetts who “married” each other (all THREE of them) – while not LEGALLY married (THAT would be polygamy, and QUITE ILLEGAL – even for Massachusetts’ neo-Socialist judges) – they DID have an attorney draw legally binding division of assets and powers of attorney – something same-sex couples could do RIGHT NOW in ANY STATE (even those that haven’t had same-sex marriage forced upon them).

    Got it? You CAN have all the RIGHTS of opposite-sex married couples – WITHOUT the label of “Married” – so it’s NOT about “equality”, is it?