Courts abandon principle for politics over gay marriage

On Wednesday, Washington’s highest court upheld a ban on gay marriage. This decision follows a couple of other like decisions that one editorial called the “Gettysburg” for the gay-rights movement.

(You know how I feel about this issue already. Whatever two consenting adults want to do with each other is their own business. That includes marriage. Individual rights should be protected under the law, even if those individuals are disliked.)

Before gay-opponents get all riled up over these decisions, perhaps they should read them. The majority opinions supporting the ban are quite…astonishing, really.

Here’s the majority opinion in the Washington case:

“Limiting marriage to opposite-sex couples,” Judge Barbara A. Madsen wrote in that opinion, “furthers procreation, essential to the survival of the human race, and furthers the well-being of children by encouraging families where children are reared in homes headed by the children’s biological parents.”

If you’re scratching your head over the gaps in logic in this opinion, you’re not alone.

In a dissent signed by three other justices, Justice Mary Fairhurst questioned the logic of that assertion. “Would giving same-sex couples the same right that opposite-sex couples enjoy injure the state’s interest in procreation and healthy child rearing?” she asked.

Where does this idea that gay marriage would “destroy” traditional marriage come from? I don’t get it. Really, I don’t. Do proponents of this idea think allowing gay marriage would encourage people to burst out of their collective closets and embrace the homosexual lifestyle, thus fewer hetero married couples?

If anything this paranoid view implies our world is teeming with uptight closeted gays just waiting for a chance to burst out. If you’re like me, I’d rather have people out. Closeted gays are probably one of the most annoying subsets of people that exist. Who needs all that anxiety and self-loathing polluting the air?

The majority opinion in the New York case was even weirder. Did anyone read it?

Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman……[S]uch relationships are all too often casual or temporary…[A]n important function of marriage is to create more stability and permanence in the relationships that cause children to be born. [The legislature could] choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.

…[T]his rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse.

…[U]nstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite sex relationships will help children more.

Gays just can’t win, can they? For years they’ve been defending themselves against creeps who claim they’re too d*mn frisky for marriage…only to find that the New York court finds the opposite to be true! They’re too d*mn well off! We need to provide the carrot of marriage to those philandering, sex-crazed breeders!

In all the cases decided recently, the judges say that they’d see no problems with the legality of allowing gays to marry — as long as it involves state legislatures approving such a bill. Which is a kind of odd way of approving of gay marriage without actually having to go ahead and declare a ban unconstitutional. Basically it reeks of politics. Judges aren’t supposed to heed the majority in cases like these; they’re supposed to interpret the law.

But reading the decisions for these cases, I’d have to say they’re on pretty shaky ground. Their opinions could be skewered by a third-grader. Ultimately I agree with the New York Times on this one:

New York’s highest court has harmed both the constitutional guarantee of equal protection and its reputation as a guardian of individual liberties by denying same-sex couples the right to marry.

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  1. The reason these judges say they would support gay marriage if the legislature approved a bill is because there isn’t any law that allows gay marriage. Thats why the legislature needs pass something because it doesn’t exist yet. If the judges approved gay marriage before there is a law for it they would be legislating from the bench which is just as illegal. Just as you said, their job is to interpret what the existing laws say, not what they should say.

    I would also like you opinion on group marriages. Do you think what happens between 3 or 4 consenting adults is their business? Should a group of consenting adults, who are in a loving relationship with each other be allowed to marry? Is it really any of our business to tell the they can or can not?

    Look forward to your response.

  2. Zach, the case decided by the courts was a challenge to the states’ same-sex marriage bans. That is, there were laws specifying who couldn’t get married. The courts were seeing if these were constitutional. (If not, then gays could marry under existing marriage laws, which don’t specify sex.)

    IMHO, they’re not. And judging by the lame opinions of the majority, the judges agree with me but pushed the problem off onto the state legislatures.

    About the group thing — I don’t think consenting adults would actually get involved in a three- or four-way marriage. (Those of you marrieds out there know exactly what I mean.) It’s hard enough to deal with trust and anger and communication when there’s just two of you…

    Usually polygamy occurs under two conditions (that I can think of off the top of my head): in patriarchal societies with extremely few resources and not much wealth, and as part of religious cults. In the first case, a woman might gladly sign on with other wives just to ensure she’ll have a place to live and food to eat — in the second, well, I think religious cults have a way with tinkering with consent. (Note that 1800s Utah polygamous families fall into both categories.)

    So, no, I don’t think group marriages are viable, likely, or ethical.

  3. I agree with you that most adults would’t get involved in group marriages. People said the same things about gay marriage many years ago. But my point is not whether it’s viable or would it be common or even if it’s ethical. The point is when it comes to gay marriage, the argument is it’s no ones right to tell them what is right or wrong, no one has the right to say whats ethical, if they love each other than what they do is between them. Just as we can’t say hetorosexual marriage is the only way, if we legalize gay marriage then we have to be open to the possibility of group marriages, human to animal marriage, adult to children marriage. The only way we can close these possiblilities is to estabilsh what is our standard of truth about what is ethical or not ethical.

    Thanks for the mature thought out response. Most often I get angry responses that use no reaoning.

  4. Zach says:

    Just as we can’t say hetorosexual marriage is the only way, if we legalize gay marriage then we have to be open to the possibility of group marriages, human to animal marriage, adult to children marriage.

    There is a clear difference here. On the issue of group marriage, it wouldn’t be a question of equality. Now, a straight person can have a husbans or wife inherit without question, visit hospital rooms, receive work related benefits. A group marriage would not be legally equivalent, because someone could have 12 people receive those benefits. I think you can reject the right to group marriage on social grounds, without threatening equal protection.

    The other argument you make that often gets raised as a red herring is the animal/children argument, which, simply put, is specious. Children and animals lack the legal status, moral development, and independent decision-making skills to agree to marriage. We have thousands of laws that separate children from adults; marriage would be no different. Even if Teddy McCreepster wanted to marry an 8 year old, society has every right to intervene. And animals are not rights-bearing in our legal tradition.

    The final part of this long comment is that none of those arguments ultimately. Don’t all of those things happen in the status quo? Aren’t their polyamorous relationships, children involved with adults, and even human with animals? How will allowing gay couples to marry change those practices?

  5. The point is when it comes to gay marriage, the argument is it’s no ones right to tell them what is right or wrong, no one has the right to say whats ethical, if they love each other than what they do is between them. Just as we can’t say hetorosexual marriage is the only way, if we legalize gay marriage then we have to be open to the possibility of group marriages, human to animal marriage, adult to children marriage.

    Ah, the ol’ “slippery slope” argument. I reject it. If we base the law on consenting adults, the slippery slope won’t — and can’t — happen under the law.

    Animals and children are, by law, not considered to be (a) consenting and (b) adults. And as I’ve argued above, I don’t think group marriage is consenting, either.

    On the other hand, you’re arguing about the shifting of popular ethics, which occur outside the law. That’s an interesting question, whether people will start thinking to themselves, “hey, if those dykes can marry, why can’t I f*ck my cat?”

    There are already folks out there who are trying to challenge the ethics of, say, pedophilia. NAMBLA springs to mind. As does New Hampshire’s marriage laws, which allows girls to marry at 13. NAMBLA is a bunch of deviant men who want to have sex with boys; the New Hampshire marriage age limit (and many Bible Belt age limits) are set so low so as to discourage teens from having abortions.

    You may even see the reasoning behind one of those arguments. Personally, I find both NAMBLA and NH marriage laws repulsive.

    See what I’m getting at? We live in a marketplace of ideas where values shift over time. Unfortunately for those uncomfortable with homosexuality we’re at a crossroads of gay acceptance. Considering that both the Vice President and the First Lady support gay marriage — two people deep within the bowels of the conservative movement — acceptance has hit the mainstream.

    Still, the basic question surrounding these cases isn’t about the ethics of gay marriage, it’s about its legality. Considering that the institution of marriage is generally considered to be a union of two people with the purpose of establishing a shared household, what legal basis do we have of excluding same-sex couples?

    Here’s what I would suggest. That all current marriages should be recognized only as “civil unions” in the eye of the state. Couples so united would enjoy the legal privileges of marriage. All “marriage,” then would be affiliated with religion. The Catholic Church could still refuse to recognize any couple’s union that took place out of its official sanction. Ditto any religion.

    That way same-sex couples who are raising families won’t be penalized by law simply for who they like to have sex with, and religious groups can still condemn homosexuality as “immoral” according to their particular sect.

    And thanks for calling my response “mature.” I don’t hear that a lot about other topics. Like, say, citizens’ initiatives.

  6. Here’s what I would suggest. That all current marriages should be recognized only as “civil unions” in the eye of the state. Couples so united would enjoy the legal privileges of marriage. All “marriage,” then would be affiliated with religion. The Catholic Church could still refuse to recognize any couple’s union that took place out of its official sanction. Ditto any religion.

    I’ve always thought that was an excellent idea, but I think people would fight even harder against that than gay marriage. Destroying marriage suddenly becomes a lot more reasonable as spin.

  7. As a Christian I appreciate that you atleast think religous groups should be able to condemn what they think is wrong.

    I agree that it would be tough with existing laws to promote polygamy or group marriages or even adults to children. But, I don’t think it’s a big mistake to think that the issues won’t come up. The article linked to below mentions that a report commissioned by the Justice Department in Canada recommended decriminalizing polygamy. These groups will try to change laws to make it legal. They will try to change the age of consenting adults.

    Who would have thought 10 years ago that there would be a tv show about a polygamist family. It may be years away but as we hear more about group marriages and polgamy our culture will become less sensitive to it. I don’t think the whole “slippery slope” issue will happen nearly as quick as most religious groups portray it but I do think it will eventually happen.

    I guess we’ll have to disagree on this issue. I know it’s hard for people to see how someone can be so against something like homosexuality and yet not hate the person. The one thing that does make me mad is when people try to make this about hate. Just because I think something is wrong it isn’t about hate, its about what I believe is right and wrong. I have a cousin who is gay, I love him as much as anyone else in my family but I would never support a marriage between him and his boyfriend. I certainly don’t want people to call him names or physically attack him, but I also don’t want people to condone his lifestyle and I want him to know I think its wrong.

  8. Well, I disagree that polygamy will become more popular. Women in our country only increase their indepdence. To suggest that an institution that basically relies on women’s subservience and sanctioned inequality will become popular also implies a major step backwards in cultural individualism.

    Second, you might not consider your position to be hatred; in fact, I wouldn’t accuse you of “hating.” But if you consider your position from your cousin’s point of view, your belief is, at best, patronizing. You seem to approach gay marriage from an ideological or philosophical angle. For gay couples trying wean benefit packages from their work, visitation rights from a hospital, or trying to adopt a baby, the fruit of your belief is harmful, hurtful, and an impedient to stability and security.

    I’m mystified why many conservative Christians are so riled up about homosexuality. I don’t remember Christ really giving two sh*ts about the subject. He seemed more interested in social justice. Seems like all this fuss about gay marriage is taking away from matters that Christ would find more important. IMHO.

  9. The problem with Christians is not that they get too riled up about homosexuality but that they don’t get riled up enough about their own sins. It’s not that Christians need to stop condemning homosexuality as a sin but they need to start condemning their own sins like the divorce rate. Their hypocracy isn’t condemning homesexuality but in condoning their own sins. The problem is they ignore their own sins and point to other peoples sins. Jesus hated homosexuality just as much as gossip and other sins that Christians commit so often. I would like to see Christians condemn and get riled up about their gossip, hate, arrogance and other sins just as much as they do homosexuality. If they did that they would be living like Christ.

    I’m not perfect, I write about my struggles with sin all the time in my blog. But I will not make excuses for my sins, I recognize that they are sin according the the bible and I expect nothing less of homosexuals. I am not a hypocrite because I put myself on the same level as the homosexuals. The only difference is I recongnize that the bible is the standard of truth and when through the study of it I find myself sinning I try to stop. I expect nothing less of homosexuals. I don’t expect them to be perfect but I do expect them to recognize that homosexuality is a sin.

  10. I’d love to see the red text from the New Testament where Christ directly criticized homosexuality. And even if there were an entire chapter devoted to Christ trashing gays, I don’t think that changes a thing. While I recognize the Bible is an important document for Western culture, I reject its righteousness or divinity.

    As for me, I firmly believe gays have NOTHING to feel bad about their sexuality. Love is hardly a sin. Honestly even if homosexuality were optional — which obviously ain’t true (who would choose to be gay with all the hate directed against them?) — I wouldn’t care. Do what you want with what you have as long as you navigate the world peacefully and with respect towards others.

    I do respect your right to believe what you want. But it doesn’t mean I have to respect what you say or what you believe. I think you’re extremely misguided in this case, even tho’ your comments here have been respectful of this blog and my post.

  1. 1 Intelligent Discontent » Blog Archive » The Washington Supreme Court on Same Sex Marriage

    […] Update: Touchstone tackles the decision as well. […]

  2. 2 The purpose of marriage « 4&20 blackbirds

    […] That’s why the majority opinions I quoted from the Washington and New York court decisions upholding the ban of gay marriage sound so convoluted. They attempt to define marriage primarily as a biological function necessary to the production of children. […]




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