NY High Court Says No to Gay Marriage
Nick Gillespie | July 6, 2006, 10:20am
Judge Robert Smith said New York's marriage law is constitutional and clearly limits marriage to between a man and a woman. Any change in the law should come from the state Legislature, he said.
"We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives," Smith wrote.
Whole story, via Fox News, here. I'm sympathetic to the idea that deciding issues such as this one via legislatures minimizes social disruption and backlash (abortion is the poster-child for the dynamic in which court-imposed rules supposedly short-circuit the legislative process and cause all sorts of problems). Yet it always seems to be folks who are not in the minority that advance that sort of argument. It's easy to counsel gays who want to get hitched to hurry up and wait if you're not gay, or to sign on to a status quo social contract that gives you the shit end of the stick if you're not gay. Which is not to say the courts should be deciding all manner of social policy; it's just to raise a point inspired by the judge's refusal to predict what future generations will think down the line (especially since it seems absolutely certain to me that future generations will have absolutely no problem with gay marriage).
Reason made the Hayekian case for gay marriage here and here.
Timothy | July 6, 2006, 11:23am | #
I don't think that state-marriage is a right on its own. It's a special instance of the right of contract and, as Den Beste noted before he went nutty and started doing nothing but blogging about anime, homosexuals have the same ability to marry anyone of the opposite sex that heterosexuals do. Two heterosexuals of the same sex can't get married anymore than two homosexuals of the same sex can. So I don't think there's much of a claim that homosexuals can't get married in this country, they can, they're just subject to the same rules as everyone else.
Now, the issue is that homosexuals want to marry individuals of the same sex and I'm in total agreement that if state marriage is going to exist (which it shouldn't) they should be allowed to. The question, then, becomes what the best way to accomplish that goal is. I think the fastest way for the FMA to pass is a bunch of court cases, the "activist judges" line works with at least enough people that a few judicial decisions would get used as examples of why we need to "protect" our "families" from the threat of socially stable gay people.
As such, in this instance, I think a more tenable solution is to change minds first and act through the legislative process. First the gay activist groups should undertake a large campaign to convince people that gays are just, you know,
regular folks. Because the truth of the matter is that who you like to make out with has nothing to do with the rest of your life. Instead of crazy marches, have gay pride parades filled with women and men who look like professionals because that's the large truth of the matter. Just people who like their own sex, no different than anyone else. Sell that first and the same-sex marriage argument is half won already.
People don't like the idea of their friends and neighbors being excluded from the culture at large, so we need to get people thinking of gays in the context of people who are, or could be, their friends and neighbors. After that the rest of the fight is much easier. Unfortunately, we're fighting against thousands of years of religious teaching and cultural norms. And that's why I think court-based solutions are likely to backfire badly enough that a slower, more legislative battle is the way to go about this particular issue.
On Lawn | July 6, 2006, 4:12pm | #
My note is something of a personal rant on the media coverage at large everywhere.
I keep hearing over and over again the term "same-sex marriage" and "gay marriage". Now that I think about it, I have no idea how that became a media standard. True, its an oxymoron. But only to people who already are set in a man-woman definition of marriage. I think there is a better reason to re-think the phrase -- it's misleading.
To me, using the adjectives like "same-sex" to describe a change in marriage is problematic. It is misleading because it only describes who is going to benefit from changing marriage, not the change itself. In fact because it just concentrates on a small subset of people it acts like a pair of blinders. Many, I believe, are taking this superficially and think there is no change to marriage at all or any prospective harm.
I submit that the proper term to describe that change is "neutered" for the reasons below.
Exactly what would be neutered about marriage, and why? The shared public meaning of marriage across society is neutered, even if it only happens in one state. The Massachusetts Supreme Court decision Goodridge v Public Health decided that for the sake of the plaintiffs the current view of marriage needed to be changed. Marriage in its current form, they found, is defined by gender integration and that was a barrier to the same sex couples.
So the order came down from the bench for marriage to be neutered. The people in individual marriages were not set to be neutered but all references to gender in official documents and law were to be removed neutering marriage as an institution. Every significance of fatherhood, motherhood needed to be struck down. And everything gender integration was capable of the state was required to expend its own resources provide to gender segregationists.
And the court went further, painting the ideal of gender integration as the moral equivalent to white supremacy. Government instituted integration becomes the new bigotry, and allowing segregation is the new equality. And ironically the neutering is portrayed as an extension.
Neutered marriage is, first and formost, and government sponsered and regulated romantic enterprise. When you take away the responsibility for children that may or may not happen in the relationship, that is all you have left in the romance that sustains the government involvement.
I don't know, you can't really expect future generations to understand what a family is when all they are left is the government welfare basket of romance endorsement.
I am for recognizing arrangements other than marriages for their mutual trust and possibility of raising children. Homosexual couples are a small minority in this camp though. We have many non-romantic arrangements, and arrangements involving more than one person in this category. RB's seem the best way to handle this while keeping families intact.
Paul Davis | July 6, 2006, 5:48pm | #
The Constitution defines our rights as citizens.
9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Unless you want to do this.
Article 5. The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
You could appeal to this if 9 and 10 are a problem
(maybe)to this one
14.1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
Unless the feds can some how claim this one.
Article 1 section 8.3
The Congress shall have power:
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
Of course 9 gals and guys in robes determine what the above mean.
I would move to a state that says "Hey if you want to enter a contract with another or others go right ahead. That is you business". When I was in the military I so enjoyed earning my rank and the money that came with it only to see guys 3 ranks below make the same because they had 4 kids. So if this fictional state said "Oh by the way... I don't care what contractual agreement you have with another is, you are getting the same treatment as the rest."
I would consider living there.
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