Friday, May 16, 2008

Gay Marriage Wins in California

I am quite happy to hear this. I'm also quite sad to see the same bullshit talking points put out by GOP schills about judicial activism (which I've already pointed out is bullshit).

I can't add much to the analysis of the issue (and bullshit GOP talking points) beyond what Glenn Greenwald has already said. I just wanted to express my satisfaction with the ruling, point out that it is definitely not judicial activism (whatever that even means) and also again express my disappointment that in Michigan we've got bigotry written right into our constitution.

Marriage is a constitutional right. Everyone should be able to enjoy it. It sickens me that so many cannot. The only silver lining is that polling shows that the younger a person is, the more likely they are to support gay marriage, which means in 30 years, when those youngters are of the main voting-age class, we will all be better off.


Robert said...

If marriage is a constitutional right, then why isn't it constitutionally OK for the polygamists who recently had their families taken away to follow THEIR preferences for marriage?

If you mean that two-person marriage is a constitutional right, OK. Where in the constitution (any constitution) does it make the distinction?

DBB said...

The short answer is, marriage is the constitutional right to marry one other person - the long answer is that given the huge number of things that are marriage-dependent that are also designed to work based on being allowed to marry only one person, it would probably "break" a lot of things if you could marry more than one person. Like how do you do "married filing jointly" when you have six husbands or twelve wives? Changing it to allow people of mixed race or same sex to marry is about as easy as adding a checkbox or even requires no change at all to any of those structures. Everyone gets one spouse, period. That's fair, doesn't discriminate, and therefore there is no constitutional problem.

However, where you only allow some people to marry that one spouse and other people are not allowed to do so, based on gender, race, or any other sort of demographic factor - heck, even based on insolvency (yes, there is a case on that specifically) - that fails strict scrutiny.

Robert said...

So if I want to marry a 15-year old, I'm good? Constitutionally, that is? That passes the (apparently implicit) "only requires us to add a checkbox or something" constitutionality test?

DBB said...

Now you are just being an idiot. You can justify pretty much anything by that logic - "well, children aren't allowed to do X, so that means we can ban it." "Children aren't allowed to live on their own, so slavery must be allowed." That's some pretty obvious bullshit.

How about I simplify it for you - if the state makes provision for something, gives certain benefits, for instance, it must, under equal protection and due process (you know, the Constitution) provide for everyone. To use a simple example, if the state makes roads, then passes laws that say only licensed drivers may use those roads, the state can't then allow only white people to get licenses - that would violate the Constitutional right to equal protection. By the same token, you couldn't prevent gays from getting licenses. The stae made licenses generally available, so now the state cannot discriminate and must give them based on neutral criteria that relate to what is at hand (like passing a driving skills test) - and yes, despite this, you still are allowed to have a minimum age to give a license, for obvious reasons. (And those reasons are also neutral criteria). So it is the same with marriage - the state provides for certain benefits and generally allows adults to pick another adult to make a spouse, providing those benefits to those adults. Now the state can't discriminate, for instance, by saying only people of a certain demographic (other than age when it comes to children, obviously) are allowed to enjoy these benefits.

Simple enough for you?

Robert said...

How about I simplify it for you - if the state makes provision for something, gives certain benefits, for instance, it must, under equal protection and due process (you know, the Constitution) provide for everyone.

Reconcile this with your objection to polygamy.

Here's the point. If the Constitution grants some broad, overarching, powerful "you can marry who you please" right, then it does so across the board. Polygamists, people who want to marry their siblings, all the rest of it. You can maybe carve out an exception for categorization based on age - but there is no way to have a broad right that doesn't encompass pretty much all the grownups - whether or not that makes life difficult for legislatures and tax professionals, whether or not the relationship being solemnified offends the moral principles of the community.

If, on the other hand, the Constitution only provides a narrow right - "the following specific categories of people can marry, and nobody else" - then it's perfectly legitimate to pick and choose which categories of people have the right. White people can marry, but not interracial couples. No gays allowed. Christian virgins between the ages of 18 and 34 - whatever the Constitution specifies. And if the courts find that the Constitution actually includes some new narrow group (gay couples, for example), then fine, they're on the list.

Here's the problem. The Constitution doesn't do EITHER of those things. It doesn't create a broad right for everyone to marry who they want, and it doesn't create a narrow right for only certain privileged groups. It's silent on the question - it's left to the legislature.

That's the problem I have when folks like yourself say "ooh, yay, the Constitution says gays can marry!" The Constitution says no such thing, and when you're asked where it says that, you're left silent with no answer. It's simply a court privileging its own narrow, provincial view over the narrow, provincial view of the legislature.

If there is a RIGHT to gay marriage (somehow, magically, implicitly in the text), then there is equally a right to polygamous marriage, equally a right to (consensually) incestuous marriage, and so forth. If there is a RIGHT to marriage in there, somewhere, then (as you yourself make a base of your argument) it applies to everyone - Mike and Mark, Jim and Jane and Jerry and Jen, EVERYONE.

You can have a universalist right to marriage, which of course includes gay people. What you can't have is a universalist right to marriage which includes gay people but somehow conveniently excludes all the other categories of people who would also like state solemnification of their unions.

DBB said...

Setting a numerical limit on the number of spouses one may have is a neutral criteria. Limting which adults consenting adults are allowed to marry is not. Which is why anything but a numerical limit is a violation of equal protection under the constitution.

Note there is nothing in the constitution about driver's licenses - cars did not exist - but there is equal protection and due process. So it would be perfectly legal to deny everyone driver's licenses and just do away with the whole thing (well, overlooking another little thing that makes it harder to take something away once granted). But once you have it, you must make it fair and can't discriminate.

DBB said...

So it isn't that there is anything about marriage in the constitution, it is that if the state is going to get into the marriage business and allow adults to form pairs called "marriage" it can't discriminate - either every consenting adult is allowed to marry or none can. That's the constitutional right we are talking about here - equal protection. The only limitations are neutral ones or ones relating specifically to age and immediate family incest. Polygamy really isn't the same thing at all - the state has never made provisions for ANY adult to marry more than one person, so there is no discrimination, hence no equal protection violation because NO ONE is allowed to do it.

Note that that is also one option the state could do - just get out of the marriage business altogether - provide no recognition of marriage whatsoever.

Robert said...

Setting a numerical limit on the number of spouses one may have is a neutral criteria.

No, it isn't. Some people want more than one spouse. To those people, it is a discriminatory criteria.

I quite agree that the state should be out of the marriage business.

DBB said...

Limiting each person to one spouse is neutral - it doesn't matter what people want, that's not what determines whether criteria is neutral.

The only way you would have discrimination for those who want more than one spouse is if the state allowed SOME adults to marry more than one spouse but not others. If it allows NO ONE to have more than one spouse, then there is no discrimination. It is equal and the same for everyone.

Robert said...

So the state can make it illegal for ANYONE to marry a gay man, and that will be a neutral criteria - regardless of what people want - since everybody has the same rule applied to them.

DBB said...

You are either being deliberately dense or, well, I won't say the "or."

Do you think it would be ok to say it isn't ok for ANY African-Americans to get married and that then isn't discrimination?

It isn't just equal rules, it is equal treatment for all adults.

Let me ask you this, do you think it would be legal to deny driver's licenses to gay people for being homosexual? If not, why not?

Robert said...

It isn't just equal rules, it is equal treatment for all adults.

But it isn't equal treatment, that's the point of the polygamy example. It's facially equal treatment, but not substantively equal. You are using one of the arguments made by anti-gay-marriage forces, who used to say that "everyone is equal - we all have the same right to engage in an opposite-sex marriage". The fact that people didn't want that is what made it an unequal rule.

Similarly, would it be a neutral rule to limit the franchise to people with a college degree? That's a "neutral rule" - it treats all adults the same. Never mind that blacks have something like half the rate of college degrees than whites do - it's NEUTRAL. Neutral, in other words, isn't good enough as a test.

What I'm trying to do is to get you to recognize that the middle ground, politically tenable "we just want this for the gays" argument isn't tenable. If people have a right to the consensual marital arrangement of their choice, then polyamory is equally protected. Come on, just admit that and be consistent in wanting freedom of choice for people.

Let me ask you this, do you think it would be legal to deny driver's licenses to gay people for being homosexual? If not, why not?

No, it would not be Constitutional, on equal protection grounds. But equal protection isn't just about facial neutrality of rules, it's about equal access to rights. You're in the position of arguing that it's not OK to deny driver's licenses to homosexuals, but it IS OK to deny driver's licenses to people who want to have fifteen cars.

DBB said...

Here's where you miss the boat: It isn't about the equal right to define what "marriage" is - be it with one partner, ten partners, or with a potted plant.

It is about the equal right for two adults to form a legal union that provides all sorts of benefits (and a few penalties) under the law.

There is no legal framework for a marriage of more than two people - in fact, that would probably "break" the framework in place - how many is too many? Could you file taxes all together? Does every spouse get health benefits? What about the legal status of children? Do those kids now legally have twenty parents? Does each of those parents get visitation? All of those are completely unanswered because there is no framework for marriage of more than two people.

That's what I meant when I referred earlier to it needing nothing more than a checkbox (or perhaps nothing at all).

I think people are too wrapped up in the traditional or religious definition of marriage and lose sight of the fact that when we talk about legal marriage, none of that matters, all that matters is the law. Maybe it is because I'm an atheist and a lawyer, but I see zero distinction between a marriage and a civil union - it is just using two different names for the same legal construct.

There is a legal framework out there that allows two adults who were not related to begin with to become related, usually as a nexus to a romantic relationship. It used to be that the constitution was violated in that only people of the same race were allowed to participate in that framework. Now another unconstitutional discrimination is being eliminated, allowing two people in love to marry now regardless of race and also regardless of gender.

I've pretty much said all I can say about the legal framework - either you get it or you don't. It clearly has nothing to do with polygamy - because there never was a framework for more than two to get married - not for anyone. Trying to add that to the discussion shows a basic lack of understanding of the legal framework and the constitutional issues involved.

Finally, leaving all of that aside, there's the basic issue of fairness - why the hell wouldn't you allow gay marriage? What's the harm to you? It doesn't affect my marriage in the slightest. How would you feel if the one you were in love with you were unable to marry? So if your spouse-of-the-heart (if not the law) got sick, you would be unable even to visit him or her in the hospital? You were unable to also get health benefits for your mate - how would that make you feel? And how much sympathy would you have for arguments that, "well, since heterosexuals are limited to marrying only one other person, it really isn't discrimination for you to not be allowed to marry at all - and no, being allowed to marry someone of the opposite gender doesn't make up for that if you aren't interested in that gender any more than it would if only same sex-marriage were allowed and you were heterosexual - the option for you to marry a man would be no option at all if you only love women in that way.

You're just plain wrong on the law, but you're also morally wrong on this. What would it hurt you to allow same-sex marriage? Haven't you see the pure joy in the faces of all of those people in CA who now can finally marry their lovers? Why do you want to stand in their way?

DBB said...

And as for a license to drive 15 cars - I think not - just like you can only have one spouse at a time, you can only drive one car at a time.

So if you try to drive two cars at once (sit in one, drive the other by remote control with video) you'll get pulled over and lose your license - try to drive 15 at once, and if you manage not to crash them all and die, you'll quickly be in prison.

Again, denying those people who want to drive two or more cars simultaneously is no basis to deny others from even driving one car.

Robert said...

I'm not opposed to gay people having their unions solemnized, be that via civil union, civil marriage, whatever you want to call it. I think the state should not be in the marriage business, but since it is, the things done by the state have to be available to everyone.

As for this:
there never was a framework for more than two to get married - not for anyone

History does not begin with the United States, and even if it did, there has certainly been a framework for more than two to get married. It's a framework that was discarded, perhaps, but the Mormons (among others) created legal structures to accommodate polyamory.

DBB said...

Historically, only the church could recognize marriage - clearly, that is exactly the opposite of what we have in the US, where only the state can officially recognize marriage (and what any religious official has to say about it is irrelevant).

We are talking about the legal right to marry in the United States, operating under the US Constitution. Historically speaking, there was no equal protection, either, and no Constitution. That's not relevant to any discussion of what marriages will be recognized under the law by our government.

Sweating Through fog said...

So, DBB under the neutral policy that any pair of consenting adults can marry, on what basis does the state say that two adult, sterile siblings cannot be married?

Suppose they weren't sterile? If the state has a compelling interest in preventing genetic defects among children, does the state have a right to perform genetic tests on intended, opposite sex partners to screen for potential genetic diseases, and deny the right to marry? Does it have the right to prevent lesbian couples from choosing certain sperm donors? Does it have the right to prevent a deaf couple from using artificial methods to assure that their child is born deaf?

DBB said...

The past justification for that was the long taboo against incest, something built into humans (and other animals) because of the huge risk of horrible birth defects - in other primates that also has been observed to cause the opposite behavior - not only is incest banned, but normally enemy groups will allow non-member "singles" to come into the group and mate - something that, if it did not happen, would quickly result in each small group being inbred so much as to be non-viable.

But you are right, once you eliminate the danger of inbreeding, there's no longer any compelling interest in preventing such unions, though for a huge variety of reasons they would be exceedingly rare.

And actually, you probably can get around it already anyway. If you have two different last names, odds are exceedingly high that if you went to get married, you'd be granted a license and married and no one would even know. Though you might have to leave town to do it. And then that marriage would be accepted in all 50 states, again, because no one would know.

Ultimately, I really don't care who any consenting adult wants to marry - it doesn't affect me or my life or my marriage a single whit.

DBB said...

And come to think of it, I think Woody Allen married his daughter.