Judge Walker: A Modern Jeremy Bentham

File:Vaughn Walker adj.jpg

In his decision overturning prop 8 in California, Judge Vaughn Walker went through every argument against allowing same-sex marriage and concluded that none had any merit. From The Economist:

During the trial in January, both sides brought witnesses to argue for and against same-sex marriage. The larger point of this exercise was to clarify and examine each individual argument against the practice.

Surgically and methodically, Judge Walker (who is himself gay) has now ruled that not a single one has any merit: the plaintiffs (ie, the gay and the lesbian couple) did not seek a “new” right, but merely the same right that heterosexuals have, and a right which in America is first and foremost a civil and not a religious matter. “Procreative capacity” has never been the basis of marriage, hence it is irrelevant, the judge found (infertile heterosexuals are allowed to marry, after all). Calling same-sex unions “domestic partnerships” unfairly disadvantages the couples. Allowing same-sex marriage “has at least a neutral, if not a positive, effect on the institution of marriage” and is good for any children involved. And so on, point by point until none was left.

This reminded me of the way Jeremy Bentham in the late 1700s went through the arguments against homosexuality and couldn’t find any utility in punishing or prohibiting it. 

To what class of offences shall we refer these irregularities of the venereal appetite which are stiled unnatural? When hidden from the public eye there could be no colour for placing them any where else: could they find a place any where it would be here. I have been tormenting myself for years to find if possible a sufficient ground for treating them with the severity with which they are treated at this time of day by all European nations: but upon the principle utility I can find none.

File:Jeremy Bentham by Henry William Pickersgill detail.jpgThe layout of Walker’s decision going through the “finding of facts” and lining up each argument to see if their is any rational basis for denying homosexuals the right to marry looks remarkably similar to Bentham’s Offenses Against One’s Self where he goes argument by argument concluding that each one offers not basis for punishing homosexual behavior. Bentham looks at the history of different sexual practices, Walker does as well. They both look at religious arguments concluding that they aren’t relevant to the state’s legislation. Bentham writes,

For these or other reasons it is an opinion that seems to spread more and more among divines of all persuasions, that the miraculous and occasional dispensations of an extraordinary providence afford no fit rule to govern the ordinary and settled institutions of human legislators. (my emphasis)

Similarly Walker finds that marriage is a civil institution and religious and personal moral objections don’t play into the state’s role in marriage. Walker writes,

To the extent proponents argue that one of the rights of those morally opposed to same-sex unions is the right to prevent same-sex couples from marrying, as explained presently those individuals’ moral views are an insufficient basis upon which to enact a legislative classification. (my emphasis)

It’s just amazing that people can’t reason through the arguments and notice that gay marriage harms no one – rather it benefits many. Unfortunately, most people haven’t even caught up with the 18th century. Moral philosophy needs to be divorced from religious and emotional bigotry. The sooner people can base their morals on moral reasoning rather than dogma and disgust the easier it will be to improve human well-being. 

And just to add a great clip so that true conservatives can understand why they should stop denying marriage to other arbitrary classes of citizens, here’s Ted Olson.

(images from wikipedia)

  1. August 11, 2010 at 3:55 pm

    Ted Olson is the freakin man.

  2. August 12, 2010 at 2:37 pm

  3. August 18, 2010 at 2:20 am

    I’m all in favor of gay marriage, but I still don’t understand what makes it a “right” under Equal Protection. Specifically, if the sex requirement (i.e., the union of male and female) is abolished in order to admit a heretofore excluded combination, then I don’t see by what legal reasoning the number requirement (i.e., two people) could be upheld.

    In other words, if I’m bi-sexual and want to marry George and Stephanie and am denied my wish because “traditionally” marriage has been defined as the union of exactly two people, then I’ll counter that “traditionally” marriage has been defined as the union of one man and one woman, and that this tradition has been relaxed in order to accommodate homosexuals.

    Ergo, since a precedent has been set that the traditional definition of marriage is pliable to accommodate one minority (homosexuals), under Equal Protection we now must relax the number requirement in order to accommodate another minority (bisexuals).

    So how other “arbitrary classes of citizens” are there that marriage shouldn’t be denied?

    Because at the end of the day, if all these classes of citizens are permitted to marry, we’ll still end up with a discrimination situation, namely discrimination against singles, who, after all, are being denied a tax break—and whatever other perks may come along with marriage—simply based on their relationship status.

  4. August 18, 2010 at 10:53 am

    Well this is part of the problem I see with making marriage an institution of the state at all. But if marriage is going to be endorsed by the state I see no reason why the state has a legal interest in prohibiting marriage between individuals due to race or romantic orientation for example.

    Marriage hasn’t in fact been “traditionally” defined as “the union of exactly two people.” There is a long history of polygamy in marriage dating back to some of its earliest manifestations. But suffice to say, tradition doesn’t matter to me that much as an argument anyway. I think you’re being a bit imprecise when you say “bisexuals” where I think you mean “polygamists.” A bisexual is no less likely to be monogamous than a heterosexual or homosexual. But anyway, here’s Andrew Sullivan making the persuasive (in my eyes) case differentiating between gay marriage and polygamy. After explaining that homosexuality is innate and polygamy is a choice he writes, “I think legalizing such arrangements [polygamy] is a bad idea for a society in general for all the usual reasons (abuse of women, the dangers of leaving a pool of unmarried straight men in the population at large, etc.). I also think it’s reasonable for society to say to a heterosexual polygamist: we won’t let you legally marry more than one person, but we encourage you to marry one. Now, look at it from the gay point of view. We tell the gay polyandrist: we won’t let you marry more than one person, but we won’t let you marry one person either. In fact, we will give you no legal outlet for your relationship, and no social support, and do all we can to stigmatize and marginalize it. Is the difference not obvious?

    Gay people are not asking for the right to marry anybody. We’re asking for the right to marry somebody.”

    So for Bentham or Walker the litmus test would probably be whether this form of the relationship harms society – if polygamy does than society has an interest in prohibiting it. No harm has been shown to result from homosexual relationships.

    Singles aren’t prevented from marriage, gays are. Someone being is “single” is just someone who isn’t married. That’s the distinction there.

    I’m not sure what other classes of citizens are also prevented from marriage other than homosexuals. Also it could have been said that allowing the state to redefine “traditional marriage” by legalizing biracial marriage under the Equal Protection clause results in the same slippery slope. If that’s the case, so be it.

    (Feel free to read the current blog here. I haven’t actually activated this one yet; although I’m happy to engage you on this topic in any forum – Thanks for reading and responding!)

  5. August 26, 2010 at 5:02 pm

    Strictly speaking, no one is prevented from marrying, as long as they choose to marry exactly one person of the opposite sex. Once personal desire enters into the equation, all classes of citizens are prevented from marrying unless they happen to be of the class which desires to marry exactly one person of the opposite sex.

    So defining marriage as a union between one man and one woman may be less a discrimination against homosexuals than an elevation of monogamous heterosexual unions above all other unions any other class may aspire to (mainly bisexuals who want to marry two people, swinging couples who want to marry each other in a foursome kind of arrangement, and polygamists.)

    Singles certainly aren’t prevented from getting married, but by being denied tax benefits equal to those which married folks are entitled to, singles are essentially being discriminated against based on their relationship status. What if I want to spend my life with the person I love, and that person happens to be myself? They won’t let my marry myself, so I’m screwed, just like homosexuals, bisexuals, and polygamists. My own comprehensive dissertation on the subject is posted here.

    Thanks for your reminder, and sorry I didn’t reply earlier. Sometimes I leave comments on various blogs, and then I don’t keep track and, um, forget.

  6. August 26, 2010 at 6:06 pm

    No problem on the delayed response. As I’ve noticed you don’t have any problem with correcting grammar or typos, allow me once again to try to correct your imprecise use of the term, “bisexual.” A bisexual is someone who is attracted to both sexes, not someone who wishes to marry 2 people. A 3-person marriage would be a polygamous relationship, not a bisexual one.

    You keep referring to different “classes of citizens” without defining exactly what you mean. If you just mean, homosexuals, polygamists, and what you refer to as “autosexuals” I don’t see any other class of citizen that is denied the right to consensual marriage. Different races, genders, and economic classes of citizens aren’t prohibited – maybe I’m not being imaginative enough so feel free to enlighten me so I can better understand your position.

    On the “autosexual” marriage question, I think you might be being a bit too cute by half. A marriage is understood as a partnership bond between previously unbonded entities. What exactly would be bonded together for a single person? My understanding is that people aren’t arguing that marriage isn’t allowed to have a definition at all. If a church or you, for example, wish to define marriage as a bond given by God between a man and a woman or as literally a screwdriver cocktail, no one can stop you. What gay marriage proponents like myself argue is that the state has no legal reason to define marriage in a way that discriminates against a class of citizens without showing that such discrimination is justified with a rational basis (in other words the state has an “interest” in prohibiting it). The state believes that bonding two people (not more or less) together through marriage is beneficial to society. Polygamists can argue that they are being discriminated against and they’re right – but the state could presumably show that group marriages harm individuals and society. If they can’t show that – I agree that they should be allowed to marry. You haven’t grappled with this line of argument which I employed in my previous comment yet; I hope to hear your thoughts on it. Andrew Sullivan’s reasoning remains unchallenged as well.

    On the tax question, if you allow me to extend your logic maybe you’ll be able to see more clearly where it fails. If singles are being “discriminated” against in an equal rights sense than so is everyone that isn’t privy to any specific tax benefit. If the government wanted to give a tax break to a clean energy company to promote clean energy sources, I could argue that I’m being discriminated against because I don’t own a clean energy company. It’s certainly a type of discrimination, but not one that falls under the equal protection clause. I happen to think in an ideal government we wouldn’t give tax breaks of any kind such as that, but I don’t believe that the government has no legal basis of doing so if it chooses. If you want to argue that marriages shouldn’t get a tax break, I’d actually support that campaign; but preventing homosexuals from entering into state-santioned contracts with a loved one is a cruel and unjust way of arguing an economic point.

    You almost argue my own point when you notice that “singles certainly aren’t prevented from getting married” – well, homosexuals are in any meaningful sense. Correct me if I’m wrong, but the argument that you continue in that line boils down to since singles are discriminated against too that shows that gays can be. I’m not clear on your ultimate position. You almost seem to be arguing that 1. Marriage is defined traditionally as one man, one woman. 2. Activists want to define it how they like. 3. Activists don’t notice that once they do that they’ve conceded that marriage has no definition at all. 4. Singles are discriminated against by marriage and tax policy and that’s unfair. 5. Other groups like polygamists are discriminated against too. 6. Therefore, gays don’t have a right to marriage.

    It also seems like your arguing that gays and others shouldn’t have a right to marriage but singles should. Is that inconsistency or am I misreading? Are you arguing that no one has a right or everyone does? From your point of view do blacks and whites have a “right” to intermarry? If so, why don’t homosexuals? Ok, I’ve gone on far too long. Hope to hear back soon.

  7. August 27, 2010 at 3:43 pm

    I understand the concept of bisexuality. A bisexual is attracted to both sexes, the implication being that people wish to marry who they’re attracted to. In case of a bisexual, this would be a man and a woman. Of course, technically, this would be a form of polygamy, although the common understanding of polygamy is to marry several people of the same sex, not one person of each sex. In this sense, a bisexual polygamist would be a person who marries several people of each sex.

    Regarding my referring to “classes” of people, I simply copied the term from you. It seems you were taxonomizing people based on their sexual preferences. However a “class” may be defined and how many classes there may be, all of them are denied a marriage license except monogomous heterosexuals.

    Different races, genders, and economic classes aren’t prohibited from getting married. Correct. No one is prohibited from getting married as long as they’re of age, the union is consensual, and between two people of the opposite sex. In states where gay marriage is allowed, the two people may be of the same sex. If a state modified its definition of marriage to allow for polygamy, one person could marry several people of the opposite gender. If bisexual polygamy were allowed, one person could marry one or more men and one or more women. Or two or more couples could marry each other.

    You say “a marriage is understood as a partnership bond between previously unbonded entities.” True. More specifically, across the ages a marriage has been understood as a partnership bond between one man and one woman, or, in cultures where polygamy was or is permissible, a partnership bond betweeen one man and several women.

    Either way, a marriage has always been understood as a union of male and female.

    Therefore, if one wishes to include homosexual marriage, one must inevitably modify the traditional understanding of what a marriage is. Once we set a precedent that marriage is a pliable concept that can be altered and expanded to include one group who had heretofore been excluded, it is difficult to explain why the concept shouldn’t be altered and expanded again to include yet another group, and then another, including bisexuals, polygamists, and auto-sexuals.

    Let’s say the traditional definition of marriage has been modified, and gay marriages are allowed. Let’s further assume that I’m a bi-sexual, and I wish to marry Jennifer and George, who both agree to marry me. The only reason to deny me my wish to marry Jennifer and George is that “traditionally” this is not what marriage has meant. Now I will counter that “traditionally” marriage hasn’t meant two guys marrying each other, either, yet the concept of traditional marriage has been modified to accomodate homosexual unions. So now why not modify it again to accomodate bisexual unions defined as marrying one man and one women?

    Now let’s say I want to spend my life alone, i.e., I want to marry myself and get a tax break like everyone else who’s married. Again, I’ll be denied my “right” to do so because traditionally a marriage has been understood as a bond between at least two people. Once again, my argument will be that since you already modified the traditional defintion of marriage and ditched the sex requirement, why keep insisting that a marriage requires at least two people? Who says I can’t bond with myself?

    You say that “the state believes that bonding two people (not more or less) together through marriage is beneficial to society.” But what’s a “state” other than the people which comprise that state and elect the officials which represent them? In some states, the majority of people believe that bonding exactly one male and one female together through marriage is beneficial to society, and in other states the people believe that bonding two people (irrespective of sex) is beneficial to society. There’s no “objective” non-majoritarian definition of “beneficial to the state.”

    Every state has so-called “police powers,” which, for better or worse, include regulating safety and morals. Anything considered “immoral” is, by definition, harmful to society as per the people who comprise such society. So then the whole issue rests on whether restricting marriage to one male and one female violates the Equal Protection clause. And if it does violate the 14th Amendment, then whatever the “state” may think is immaterial in the first place.

    And yes, you’re misreading. I never argued that singles should have a right to marry and gays shouldn’t. My whole argument is that if the traditional definition of marriage is modified to include homosexual unions, why shouldn’t it be modified to include all other unions as well, including autosexuals. It would be patently absurd to permit polygamy and allow people to marry themselves yet prohibit gay couples from marrying.

  8. August 27, 2010 at 5:04 pm

    Ok, I think you’re becoming more clear to me. I hope I can be more clear to you. Let me ask first, since you said you would be fine allowing gay marriage, would you also be fine allowing group marriage or “autosexual” marriage? If not, why not? If not, haven’t you conceded the difference? Do you have a problem with altering the definition of marriage or are you just pointing out that once it’s redefined away from tradition then it becomes almost absurdly amorphous?

    I do take issue with your idea that there’s “no ‘objective’ non-majoritarian definition of “beneficial to the state’.” I should be more clear and note that the state can prohibit something if it is harmful to society (i.e to individuals, groups, lawful rights of others). These can be objectively accessed. If allowing say, gay marriage, made life worse for kids on balance than if gay marriage was prohibited than the state may have an interest in banning it. However, no such persuasive case has been made (it appears the opposite actually). There seems to be some evidence that polygamy results in the abuse of children and women – if that is not the case; I’d argue that polygamy should be allowed. Under our law (and that’s what we’re talking about), we can’t discriminate because something is icky or we because we have religious reasons against it – a secular case must be made. You’re right that the people in our representative democracy may just decide to promote an activity because they think it is beneficial (through taxes or special status) but to prohibit a class from that same activity without justifying that prohibition with a rational basis conflicts with our constitution.

    Although we often try to align our laws with our morals, the law isn’t a moral code – it needs more justification. Just because a majority of people consider gay marriage immoral does not mean by definition that it is harmful to the society. It has to cause objective harm, not perceived. Case in point: allowing interracial marriage. I realize I wrote too much last comment, but you ducked my question. Interracial marriage was considered immoral at the time but its opponents could not show a rational basis for prohibiting it. Thus, it fell under the equal protection clause. Do you think that the case was incorrectly decided (even if you favor allowing it personally)? If it was decided correctly, I fail to see the distinction between that and gay marriage – it was religion and tradition after all that kept races from “intermingling.” Please elucidate me.

    Recap: My understanding of the Equal Protection Clause is that the state must prove a rational basis (secular, objective) for prohibiting any particular class from a state-sanctioned institution such as marriage. Proponents of this reasoning argue that there is no such basis for excluding gays from marriage. Many argue there is a basis to exclude group marriages (e.g. abuse of women) – if that is false, than they too should be able to marry, goes the argument. Do you understand the distinction? If yes, do you deny any harm? Do you personally favor expanding marriage to groups and singles? What is the difference, if any, to you between interracial and gay marriage within the contexts we’ve discussed?

  9. August 28, 2010 at 6:20 pm

    Yes, my point is that once marriage is redefined away from tradition, then it becomes almost absurdly amorphous, especially in light of the fact that the U.S. houses 75% of the world’s lawyers. Once it’s been determined that under the Equal Protection Clause of the 14th Amendment the traditional definition of marriage must be expanded to include one heretofore excluded combination, everybody who desires an additional redefinition suddenly has a legitimate case based on precedent.

    Personally, I’m fine with gay marriage, but I wouldn’t be fine with group or “autosexual” marriage, because if “anything goes,” the whole concept of marriage might as well be done away with completely. I understand that the line I’m drawing here is somewhat arbitrary, but “marriage” between anything other than exactly two people strikes me as nonsensical. Just a personal opinion.

    So my concern is how to expand the traditional definition of marriage to allow gay marriage but then stop there. In my opinion, the only way to do this would be to pass a constitutional amendment which defines marriage as a union between two consenting adults. Although I’d vote in favor of such amendment, it has a snowball’s chance in hell to attain the national supermajority necessary to get it passed. In fact, I see more of a realistic chance to pass an amendment defining marriage as a union between one man and one woman.

    We live in a constitutional democracy. This means that states can make their own laws based on democratic consensus, under the condition that such laws don’t violate the U.S. Constitution. Californians voted against gay marriage, but Judge Kennedy struck down majority sentiment because he argued that, under Equal Protection, gay marriage is a fundamental right guaranteed by the Constitution and hence not subject to democratic preference.

    Personally, I do not believe that it is. I believe Equal Protection guarantees the right to marriage as traditionally defined. It does not establish a right to alter that definition, irrespective of how desirable such alteration may be with respect to including homosexual marriages. (I also happen to be pro-choice, but I’d overturn Roe v. Wade in a heartbeat. I personally wish there were a constitutional right to abortion, but I just don’t see it in there. Constitutional amendment to guarantee abortion? Sign me up. Roe v. Wade? No way. In fact, I’m very tempted to read a constitutional ban on meat, drugs, and alcohol into the general welfare clause. Unfortunately, as much as I’d like that, it would be ridiculous.)

    Yes, it is my understanding as well that the state must have a “rational basis” for prohibiting any particular class from a state-sanctioned institution, but the rationality test is relatively easy to pass: majority sentiment regarding morals is considered perfectly rational in a legal sense.

    All matters regarding race, on the other hand, must pass the so-called “compelling state interest test,” which goes far beyond mere rationality. Unlike sexual orientation, race is deemed a “suspect” class, i.e., race is a whole different ballgame than anything else.

    So yes, Loving v. Virginia was correctly decided. Moreover, marriage, traditionally defined, is a sex-based arrangement, i.e., the union of male and female. Race has nothing to do with sex. That’s the difference between interracial and gay marriage.

    The question is whether the union of two people of the same sex falls under the existing definition of “marriage” in the first place. I believe that in order for it to do so, the definition of “marriage” would have to be modified and expanded.

    No such modification and expansion has ever been necessary to correctly refer to a union between a black man and a white woman a “marriage,” irrespective of many people’s personal opposition to interracial unions.

    Under the 14th Amendment, the right to “marriage” is equally guaranteed to every person. So the whole issue boils down to the definition of the term “marriage.” If one argues that the definition of marriage already includes gay marriage, there’s no reason on earth why it wouldn’t also already include, for instance, the Muslim definition of marriage, i.e., a man being allowed to marry up to four women, as stated in the Qur’an. More than merely being “rational,” the Muslim guy can even point to his First Amendment right to exercise his religion.

  10. August 28, 2010 at 8:01 pm

    Thanks again for elaborating your views – I find this very worthwhile to tease out these subjects. If you’ll allow me to do some further unpacking on your behalf, I think your “line drawing” isn’t as arbitrary as you think. In some sense you’re conceding that there is a substantive difference between gay marriage and group marriage. I’m also going to guess that the substantive difference that you find viscerally unappealing isn’t rooted in a deep seeded concern for numerical consistency. Sorry for the armchair psychologizing here but even if it is a bit subconsciously, you’re noticing that group marriage often is intertwined with problems such as abuse of women, child marriage, and the potential to leave large quantities of unmarried men in the population (read: recipe for disaster). In other words, substantial objective harm can result if group marriages became legal and popular. No such thing can be said of (numerically consistent!) gay marriage.

    I’ll just restate that I think tradition is a terrible reason for deciding any question. If something was wrong originally, it being wrong for a long time certainly doesn’t do anything to improve its ultimate merit. Your argument from definition, although interesting, isn’t persuasive to me. It boils down to marriage is between one man and one woman because it is between one man and one woman. Full stop.

    I’m not a lawyer but I don’t see why homosexuals wouldn’t fall under the suspect class category for the “compelling state interest test.” And since we’re lawyering a bit here let me quote from Loving v. Virginia: “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.” In that case, the court did modify and expand the definition of marriage – it was traditionally understood that a interracial couple couldn’t marry. You’ve acknowledged yourself that marriage has changed throughout history: sometimes it has a polygamous form, sometimes 1 man/1 woman, sometimes arranged, sometimes by choice, sometimes uniformity of race, sometimes not, sometimes class based, sometimes not, and I’m sure many more. I’m getting that you’re basically saying that it’s ok to change the definition of marriage as long as its through a process of social change and tradition, but why? The definition of marriage changes all the time; that doesn’t seem to be a problem in itself. The job of opponents is to argue why it is a problem beyond that – it’s a case that has yet to be made. If the worry is that other forms of marriage beyond gay marriage are unacceptable, their unacceptability rests on substantive differences not definitional ones. It is on those substantive differences that the state may or may not have a compelling interest in prohibiting them. If the state has such a compelling interest, that group is exempt from equal protection.

    I hope we’re not going in circles. I appreciate your responses thus far; I hope my comments have been as productive for you as yours have for me.

  11. August 29, 2010 at 5:07 pm

    Of course, it’s your privelige to believe that homosexuals should fall under the “suspect” category and hence all laws regarding homosexuality should be subject to the “compelling state interest” test. In practice, however, they don’t, and you can research the reasons behind that yourself by consulting any primer on constitutional law. In fact, constitutional law is a most fascinating field.

    No, it wasn’t traditionally understood that a interracial couple couldn’t marry. If you recall, one of the early British settlers married Pocahontas, so there you have historic precedent the moment the Europeans hit American shores.

    The one element that all traditional views of marriage have in common is that marriage has always denoted a union of male and female, so in this sense the definition of marriage does not “change all the time.” I’d say it’s been pretty static all throughout history. The notion of same-sex “marriage,” however, is a novel one. This doesn’t mean it’s bad. It only means it’s new. Very often, changes are improvements over tradition.

    Sans constitutional provision one way or another, determination of potential “substantial objective harm” is up to the legislature, federal or local, i.e., the people (via their elected representatives) will decide if such harm is or isn’t present. If the people of a particular state vote either to allow or disallow polygamy, who’s supposed to step in and overrule their decision and if so, based on what? In whose province is it to hand down an “objective” ruling as to “substantial objective harm”?

    We live in a constitutional democracy. If the constitution is silent on an issue, majority rules. The only way to invalidate a democratic vote is to determine that the outcome of such vote violates the U.S. Constitution. Ergo, whether or not any democratically arrived-at conclusion regarding marriage is valid or not hinges on what exactly it is that the Equal Protection clause protects, i.e., it hinges on the definition of “marriage.” My argument from definition may not sound “persuasive” to you, but the definition of marriage is precisely what the Equal Protection argument in favor of gay marriage hinges on: does it protect the prevailing traditional view of marriage (i.e., one man and one woman), or does it protect ALL forms of marriage?

    When it was decided in Loving V. Virginia that marriage was one of the “basic civil rights of man,” no one takes issue with that, but if you’re arguing that every conceivable kind of union that anyone wishes to call “marriage” is protected under the 14th Amendment and has been reaffirmed by Loving v. Virginia and can only be outlawed if the public finds it poses “substantial objective harm,” we’re back at my previous question of who’s the objective and unbiased arbiter of “objective harm” other than the public itself, to wit the very same public who voted against gay marriage in California?

    If the Equal Protection Clause, in principle, protects ALL conceivable forms of marriage, what judge (other than the public) is supposed to be given the authority to determine which types are permissible because they are harmless?

    Alright. So I’m bisexual. I wish to marry George and Jennifer. Both are of age and have agreed to marry me. Is this form of marriage protected by the Equal Protection cause? Has my desire to marry George and Jennifer been codified by Loving v. Virgina as my “basic civil right”? If not, why not?

    It’s not like I want to marry 50 people. Just two. What harm could come from a union between three consenting adults? Where’s the “substantial harm” threshold? Four people? Five people? Who makes that determination?

    Certainly, if I were to marry myself there’s zero “substantial harm” to society. The only problem with marrying myself is that such a “union” doesn’t fall under any traditional definition of marriage known to mankind. But so what? It isn’t harmful, I personally consider marrying myself a “marriage,” and hence it’s protected under the 14th Amendment.

    You say that tradition is a terrible reason for deciding any question. I agree. So without appealing to tradition, how would you make your case that marrying myself isn’t a “marriage” and hence NOT protected under Equal Protection?

  12. August 31, 2010 at 4:59 pm

    You’re right of course that homosexuals don’t fall under the “suspect” category, but that doesn’t mean they shouldn’t. I’m also unsure why that is the standard – why isn’t rational basis enough? Or why doesn’t the state have to show compelling interest? Perry V. Schwarzenegger was decided using rational basis and I’m not sure why that’s obviously wrong. And Scalia famously wrote that the Lawrence v. Texas case (which is precedent) would lead to gay marriage because the state would have no legitimate state interest in limiting marriage rights to only heterosexual couples.

    I’m not sure how you’re defining tradition. That’s partly the trouble with using it. Is it the tradition of the United States? The tradition of the whole institution? The Pocahontas instance was pre-US after all. Also, Harvard Professor Nancy Cott who wrote a history of marriage argues that “marriage has never been universally defined as a union of one man and one woman, and that religion has never had any bearing on the legality of a marriage.” It is certainly the case that marriage has in some respect traditionally discriminated against other races, non-citizens, economic/social, and other classes. Those basis and others are no longer considered proper reasons for discrimination, I still fail to see the great distinction.

    Even more common a definition of marriage would be a “legal contract between people that creates kinship.” Your line drawing for “one [common] element” for marriage seems arbitrary at best and simply convenient to you argument, sexual orientation just doesn’t appear to be a necessary condition for marriage. Marriage has certainly included 3+ people in the past – that was a long tradition – why would number be more or less important than sexual orientation? Your basis seems to rely too much on the whims of history rather than anything rationally compelling. If, for example, I could find one example of a gay marriage in the past would that therefore show that there is a tradition of marriage for homosexual couples and nullify your case? Well gay marriage exists technically in the past in America (here in my state of Massachusetts for example) and outside in Europe; why is that not a basis for a tradition, but Pocahontas is?

    Substantial objective harm isn’t only up to the legislature. The judiciary is an equal part of our political system and frankly seems to more often decide law on notions of harm. You ask “who’s supposed to step in and overrule [the people’s] decision” – well courts are. That is their role if they decide in a case that the people’s decision infringes on someone’s equal rights/protection/due process. The constitution doesn’t have to explicitly mention an issue for it to be included in its purview. It never mentions lots of things that would fall under the 14th amendment – interracial marriage being the most relevant example.

    Of course there is no perfect arbiter of truth or objective harm, but to answer your question of who decides – it’s us and our institutions. The legislature is one of course, but so are courts and judges. A case will be made arguing both sides and a judge(s) (or jury in some cases) decides if objective harm or whatever other standard is met. In our system it is understood that they use secular metrics like reason, evidence, science, etc to decide such questions. No one is unbiased, that’s why we have institutions to safeguard us from overreach by the public, executive, courts, whatever.

    If you’re a bisexual polygamist like in the case you ask about, your form of marriage may or may not be protected depending on whether the government can show that your form of marriage is or is not harmful. If you think those types of marriages are harmless (although I’m skeptical but not unpersuadable) than you may have a case. The court will decide that based on the available evidence. We make the determination. We meaning the voters, the judges, the jury, the legislature, the executive. You seem to imply that legislatures have greater authority than the judiciary – that’s not accurate.

    I don’t need to appeal to tradition to argue marrying yourself isn’t marriage. I’m not arguing that the definition of marriage can be completely limitless. I’m not arguing a marriage can be a lampshade if someone thinks it is. No one needs to appeal to tradition, just to rational justification. Human beings decide definitions and a marriage isn’t a union between consenting adults because of tradition but because our legal institutions decided that was what it is. If our legal/legislative framework changed the definition of marriage to be something else so be it. But since it is a law, not just a social thing, by law it needs to apply equally to all citizens as long as there isn’t a rational justification for doing so.

    I would argue that marriage to oneself wouldn’t be included not because of tradition but because it is nonsensical. If the legal institution of marriage is set up to allow people to make formal contracts between separate individuals so they may create a kinship, a family, a legal basis for sharing finances, spreading economic and legal obligations, creating a better structure for children, than it doesn’t make sense to marry oneself – you’re not bonding anything that isn’t already bonded. You wouldn’t actually be participating in the institution (one which you’re not banned from actually participating in keep in mind). A man that wants to marry another man would still be entering the same legal framework of the institution, the only difference would be that the gender of his legally contracted partner would be the same. That’s it.

    The merits of deciding what is or isn’t a marriage can rest or fall on their own terms. No need to rely on tradition. If you could show that a marriage should include autosexual marriage because it is the best possible conception with the best possible outcomes for society, so be it. Make that case and I’ll back you up. Until then, let’s allow our fellow citizens to participate in an institution on an equal basis.

  13. August 31, 2010 at 10:10 pm

    How am I defining tradition? For better or worse, I’m defining tradition as “how it’s always been,” and you’re defining it the same way. Otherwise, marrying a lampshade would indeed be a legitimate marriage. The only argument against lampshade marriage is that, yes, “traditionally,” marriages have always involved human spouses only. If you agree with this, you’re firmly sticking to tradition, even though you stated that tradition is the “worst” possible reason for deciding anything.

    If you throw tradition overboard, you do have a fundamental right to marry a lampshade. Just because something is nonsensical doesn’t mean it isn’t a right. I have a perfect right to stuff my chewing gum into my nose instead of my mouth.

    Other than the human-spouses-only tradition, marriage has always involved a merging of male and female. So that’s how I define marriage as guaranteed as a fundamental right by the 14th Amendment: a state- or church-sanctioned bond between human male and human female.

    If you want to ditch the male-plus-female part of the traditional definition of marriage, you’re left with a state- or church-sanctioned bond between people.

    If you also want to ditch the human-only part of the traditional definition of marriage, you’re left with a state- or church-sanctioned bond between who- or whatever.

    Ultimately, all definitions of marriage are arbitrary, but I would argue that to define marriage as a union between two consenting adults is far more arbitrary than to define marriage as a consensual union between one adult male and one adult female, since the latter rests on firmer precedent.

    It simply makes no sense to me to argue that yes, the 14th Amendment does guarantee as a fundamental right gay marriage, for which there is almost zero historical precedent, while it does NOT guarantee as a fundamental right, for instance, polygamy as defined in the Qur’an, i.e., the right of a man to marry up to four women, and it does also NOT guarantee the right for threesome-marriages, which couldn’t possibly be any more “substantially damaging” to society than conventional twosome marriages, and if they might indeed be more damaging, why should some institution or a judge be the judge of that other than the people?

  14. September 1, 2010 at 1:11 pm

    A judge isn’t a judge for the people, he’s a judge for the law. If he was just there to reaffirm the decisions of the people, he wouldn’t be necessary.

    I’ll reargue that you don’t need to define marriage by tradition for it not to melt into a meaningly puddle. Marriage’s boundaries would be set by legal code with the understanding that it applies equally to all citizens assuming that extending it to a certain class wouldn’t be harmful. If the state can argue a rational basis for not extending it to a certain class so be it. Discrimination is fine; as long as that discrimination is justified by compelling reasons. We discriminate against rapists for example, even if they want to call it marriage, because their “act of marriage” is grossly harmful – thus society has an interest in banning it. So we have a reasonable law against rape.

    You continue to ignore my argument that in marriages beyond 2 people the state would have reason to prohibit it (just because the only reason you can come up with is tradition doesn’t mean there aren’t others). I cited abuse of women and the potential to leave a unmarried pool of men in the population as my primary examples. Your rejoinder that if only one partnership wanted to get married in that way is irrelevant because we couldn’t only allow 1 partnership in that way under the law (laws have to apply equally after all). Here is another reason – efficiency. Law is frequently decided for such reasons. Imagine if lots of 3 or 4 or more person marriages existed; now imagine divorce, child custody battles, splitting property, etc. The our judicial system would be overrun, thus because of the intense inefficiency it would cause the state would have proper reason to limit marriages between 2 people. I can think of others reasons to limit it as well, but those are 3 major ones. With gay marriage your only retort is that it isn’t traditional. You keep arguing that we’d have no reason to stop at gay marriage. Well, those are some of the reasons. If there were no reasons, you’d have a case, but of course we do.

    Your definition of tradition as “how it’s always been” doesn’t work. Marriage hasn’t always been anything. Your failure to concede that is glaring. Marriage was always between people of the same race until it wasn’t. Marriage was always arranged by parents until it wasn’t. Marriage always allowed a man to have more than one wife until he wasn’t. Marriage never included slaves until it did. Marriage never included homosexual marriage until it did – notice that it now includes that. And on and on. Each alteration happened by social or legal change – sometimes it limited marriage sometimes it expanded it. You should see by now that changing an institution leads to a unidirectional slope is a fallacy. Every change hasn’t led to the end of lexicography; they’ve just been sometimes sensible sometimes not reforms of marriage. If something leads to social and legal anarchy, we’re welcome to change it back. Your inability to rationally discriminate the difference between a woman marrying a woman and a woman marrying a lampshade shouldn’t condemn the rest of us an unjust and unideal institution.

    When you write, “It simply makes no sense to me to argue that yes, the 14th Amendment does guarantee as a fundamental right gay marriage, for which there is almost zero historical precedent, while it does NOT guarantee as a fundamental right, for instance, polygamy” you completely miss the point. Historical precedent is what we can ignore if we have good reasons to ignore it. We can make our decisions on whether a reform is sensible or is nonsense. Keep in mind, the legal institution of marriage isn’t even changing, we’re just allowing another group of loving and equal citizens to participate in it – what could be more benign?

  15. September 1, 2010 at 7:46 pm

    Discrimination must be justified by compelling reasons if the discrimination is based on race; by semi-compelling reasons if it is based on sex (e.g., discrimination against women); and by merely “rational” reasons if based on anything other than race or sex, e.g., sexual orientation. That’s how they’ve been doing it for decades (“they” being the Supreme Court). You want to skip the semi-suspect class (sex) and elevate sexual orientation from the non-suspect class right up into the suspect class.

    For better or worse, in the legal sense, violating the sense of morality of a democratic majority constitutes a perfectly “rational” reason for a law to be passed.

    The state has reason to prohibit anything that the majority of its citizens want prohibited unless such prohibition itself is prohibited by the U.S. Constitution. Whether or not the Equal Protection Clause constitutes such prohibition regarding gay marriage hinges on the definition of the term “marriage,” which we can squabble over until we get blue in the face.

    So whether a restriction of marriage to one male and one female constitutes discrimination in the first place rides on the definition of “marriage.” If the term “marriage” means a union between exactly one male and one female, then any other types of unions simply aren’t marriages under the law, hence no discrimination.

    At the end of the day, you can use the term “to marry” for anything you wish. In restaurants, pouring the remaining contents of one ketchup bottle into another is called “marrying” the ketchup. But this isn’t a marriage as defined by the law, hence the 14 Amendment doesn’t bestow a fundamental right of two ketchup bottles to be “married.” It’s a marriage in the colloquial sense, but not in the legal sense. The 14 Amendment guarantees equal protection under the law. A popular definition of something is different from a legal definition, just as being “crazy” as commonly understood is different from legal insanity.

    In law, definitions are everything.

    I haven’t ignored your argument that in marriages beyond two people the state would have reason to prohibit it. In fact, I asked you about the exact number of spouses that would constitute the “substantial objective harm” threshold, and who exactly is supposed to decide where that threshold is. Rather arbitrarily, you seem to be setting this threshold at exactly two people.

    What’s harmful about three consenting adults marrying each other? If you don’t slap a sex restriction on it, this wouldn’t necessarily lead to an unmarried pool of men. It may lead to an unmarried pool of women. Or it may lead to a smaller pool of unmarried people, period. It may, in fact, have positive consequences. No one knows. I know of no society where marriage was defined as a union between either two or three consenting adults. If gay marriage is a fundamental right, why would a marriage between three consenting adults not be a fundamental right? Who’s supposed to hand down an objective potential damage assessment for a societal experiment that has never been tried?


    Throughout human history, marriage has always been (a) between human beings, and (b) a merging of male and female. Of course, who exactly was allowed to marry who constantly changed over time. We all know that, and depending on the country and the period of history, a varying array of restrictions was added. Sometimes based on religion, on race, on age, numbers of spouses and so on.

    Still, the concept of marriage has always been understood as a union between (a) human beings and (b)male and female. There’s your tradition. If you don’t like the word, don’t use it. But that’s what it is. Your failure to concede that your entire argument rests on an ironclad concept of traditon as well (even though you conveniently choose to skip the male-female component of tradition which I choose to include) is no less glaring than my alleged failure to concede whatever exactly you’re accusing me of failing to concede.

    Of late, there’s a movement to remove the male-female component from the traditional definition of marriage. I think that’s a good thing. I think historical precedent regarding the traditional male-plus-female component should be eliminated. You appear to be confusing me with someone who’s somehow opposed to gay marriage.

    I merely believe that gay marriage–nor any other type of marriage other than a consensual union between exactly one male and one female—is not a fundamental right guaranteed by the Constitution such that a judge has the right to overrule a democratic vote on it, because, as we’ve been going back and forth about at length now, (a) this topic isn’t “compelling state interest” material, and (b) the 14th Amendment merely guarantees a right to marriage as traditionally defined, a definition which, in my estimation, includes the male-plus-female component in addition to the human-spouse-only component (this latter component you certainly acknowledge, although you seem to shun the term “tradition” like the plague).

    I wish gay marriage were a fundamental right, but it isn’t, in my humble opinion, until such time as it is codified as a constitutional amendment, which I would vote in favor of, just as I wish abortion were a fundamental right guaranteed by the Constitution, which in my opinion, it is not. Of course, they passed Roe v. Wade anyway, a decision which I substantively like but consider fundamentally flawed, hence ought to be overruled.

    I understand it is usual for a person to argue that his personal preferences are not constitutionally codified. The more common temptation is to argue that if we like something, the Constitution demands it, and if we don’t like something, the Constitution forbids it. Hence, the Constitution becomes this wondrous document which always appears to magically reflect the personal opinions and preferences of the reader.

    You mention the specter of judicial chaos if marriage were opened to unions of more-than-two people unions. That’s precisely my concern about reading a fundamental right to gay marriage into the 14 Amendment. If you open the gates for one non-traditional form of marriage (which gay marriage certainly is) while disallowing other non-traditional forms of marriage, or even some fairly traditional ones, like polygamy, it’s open season.

    Your neatly presented arguments on why marriages of more than two spouses can legitimately be declared unconstitutional by a judge looks very neat and cogent on the page, but you’re gonna have an army of lawyers vigorously contesting every single assertion you made in courts all over the country on behalf of their clients who—now that it has been found that gay marriage is a fundamental right—claim that whatever type of marriage they wish to enjoy is a fundamental right as well, and aim to prove that the marital preferences of their clients would not cause any “substantial harm” to society.

    There’s your chaos in the courts. Remember, as I mentioned earlier, the United States harbors 5% of the world’s population and 75% of the world’s lawyers. Nuf said.

    And since we’re all so concerned about discrimination, why do married people get tax benefits but singles do not? That’s discrimination based on relationship status, plain and simple. The laws must be applied equally, so if that married guy over there gets a tax break, I should get one as well. Why am I a second-class citizen simply because I either choose to remain single, or must remain single because no one wants to marry me? The more people are allowed to marry, the more glaring becomes this tax discrimination against singles.

  16. September 3, 2010 at 7:16 pm

    “Discrimination must be justified by compelling reasons if the discrimination is based on race; by semi-compelling reasons if it is based on sex (e.g. discrimination against women); and by merely “rational” reasons if based on anything other than race or sex, e.g., sexual orientation.”

    I think this is the crux of our dispute. Let me reiterate that I take you at your word that you favor gay marriage on its own terms, but just disagree that it is an inherent right. I share your distaste at people who seem to conveniently find the rights they like in the Constitution but not the ones they don’t. I haven’t looked very deeply at all into abortion law, but although I also favor regulated legal abortion, I also share some skepticism that it should be a Constitutional right. That all said, let’s get back to the crux. I think you’re wrong that “violating the sense of morality of a democratic majority constitutes a perfectly “rational” reason” for the court to uphold a discriminatory law. Sure legislatures can pass almost whatever they want for almost whatever reason, but courts have a duty to judge if that law is discriminatory for a rational reason, if it’s not – they have a duty to strike it down for violating the 14th Amendment. Romer v. Evans, for example, ruled that Colorado couldn’t amend their own state constitution to “block gay people from receiving “special rights.”” That’s a unique case, but it suggests to me that a majority can’t just impose discrimination on a select group just because of its morals – even when that group isn’t a protected class. The court majority found that “equal rights” are not “special rights” and a law that strips gays of their ability to pursue their right to equal protection under the law is unconstitutional.

    It’s possible I’m mistaken about this, but what I’ve been told and what it seems is that the Walker decision came down on there being no rational reason to discriminate against gays. He looked at all the evidence presented to him to see if the state had any rational reason to prohibit gays from marrying and found that not even 1 existed. Simple. He therefore, ruled that the law is unconstitutional. I think he’s right in his understanding of “rational basis.” Now it is possible that he missed a rational reason and the law would therefore be constitutional. But that is a separate argument; again, he seems to be correct in his understanding of the law in that instance. If it was as simple as “it is rational to discriminate based on a majority’s perceived morals,” it seems unlikely that the case would have a chance of even being accepted into the court – it would be obvious that the discrimination was therefore rational and justified. Sodomy certainly violated the majority’s sense of morality but that was not sufficient in Lawrence v. Texas. Do you have a specific case in mind that illustrates your point? If mere democratic passage into law demonstrated rationality how could any non-protected class’s equal rights ever be violated? The judiciary’s fundemental purpose is to act as a buffer and brake against domination of the majority.

    In the marriage cases I’ve read about, definition never seems to be the ultimately dispositive factor. You argue that it is everything – if i’m wrong that it isn’t could you cite some contrary evidence? After all, couldn’t the state then just define into law all sorts of discrimination? I understand that legal and colloquial language is different (that does nothing to invalidate my argument) – if the state legally defined “public school” to mean “an education institution that only serves heterosexual students” would they really have the legal right to discriminate in that way? They could, after all, technically define “public school” in that way if they got enough votes – maybe even the majority of the public favors that morally.

    Onto some other minor points. I didn’t arbitrarily pick 2. 3 consenting adults couldn’t get married because of the legal inefficiencies it would create (as I argued before). Also, I think your math is backwards. If a man were to marry 2 women (as would be more likely) and this process happened frequently, there would indeed be a larger pool of unmarried men. If there are 10 men and 10 women and 1 man marries 2 women that leaves 9 men and 8 women. The disparity gets bigger the more 3 person marriages there are.

    You acknowledge that the institution of marriage changes all the time throughout human history; it appears to me that your insistence on the sexuality and gender combination as the fundamental determining factor is more arbitrary than my insistence that it just needs to be a legal union between 2 consenting adults on the condition that no societal harm results from the inclusion of the particular class/group.

    On your “specter of judicial chaos” from other groups demanding marriage rights, courts don’t have to look at a limited ruling’s (in this case for homosexuals) effect on other groups’ willingness to use that limited ruling as precedent. That contrasts with my point about the judicial chaos that would result directly from the courts needing to deal with 3 person (or more) divorces and marriage related legal disputes.

    Also, gay marriage and polygamy have, in fact, both “been tried” contrary to your assertions. So a judge could certainly use those “societal experiments” to better assess potential damage. Maybe it’s because you’re not from Massachusetts, but I assure you that when our supreme court allowed gay marriage, judicial or societal armageddon didn’t follow.

    Singles have been found by the court to not be a protected class (like homosexuals) therefore only a rational reason needs to exist to deny them tailored marriage rights. That rational reason could be that society wants to make families more stable by encouraging partnerships. Also, the chaos from all the singles-getting-married would also be a rational reason. In the case of gay marriage, the bonding of 2 people of the same sex would result in more stability not less for families; thus no rational reason (that i’ve heard!) exists to discriminate.

  17. September 7, 2010 at 6:57 pm

    Now you wrote another essay in response. Quite frankly, I’ve made a conscious decision to not read it, because if I do, I’ll feel compelled to respond with yet another essay of mine, and this debate will keep going back and forth until Judgment Day. All the while, I haven’t posted anything on my own blog in almost a month, and I’m hopelessly backed up with other topics I’d like to mouth off on.

    Regarding gay marriage, not only have we made our points, but we’ve made them over and over again.

    We’ll let the audience decide.

  18. September 7, 2010 at 7:30 pm

    I’m disappointed you choose not to read it. I think I got to the crux of our disagreement. Coincidentally enough I had intended on giving you the last word on the topic after your next response. So if you decide to respond, I’ll keep that intention. Either way, I’m glad we had this opportunity and I hope the audience gained some valuable perspective from both of us.

  19. December 4, 2010 at 8:14 pm

    Here’s my last word on why I’m a prophet:

    Woman in Thailand Marries Herself

    (The article is in German.)

    • December 5, 2010 at 3:08 pm

      That’s pretty hilarious. Of course, some nuttiness in Thailand doesn’t invalidate my argument about US constitutional rights, but you definitely deserve some credit for some entertaining foresight.

      • April 21, 2011 at 11:38 pm

        PS: I elaborated upon my ketchup analogy here.

  20. April 22, 2011 at 4:10 pm

    Thanks for sharing! You’ve inspired me to write another post. Not sure when it’ll be up; I’ll keep you informed.

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