June 2, 2008

Do You, Party A, Take Party B...

Justin Katz

Thus is radical change forced upon a society via underhanded activism and deliberately skewed thinking. With an assumption as to what the society considers marriage to be, a court finds as follows:

The appellate judges determined that there is no legal impediment in New York to the recognition of a same-sex marriage. The state Legislature "may decide to prohibit the recognition of same-sex marriages solemnized abroad," the ruling said. "Until it does so, however, such marriages are entitled to recognition in New York."

A court and bureaucracy in another state does its own feint-step, with the following result:

The guidelines from Janet McKee, chief of California's office of vital records, contained copies of new marriage forms that include lines for "Party A" and "Party B" instead of bride and groom. The gender-neutral nomenclature was developed in consultation with county clerks, according to the letter.

And the governor in the first state takes the opportunity to write the essential definition of marriage right out of public policy:

Paterson spokeswoman Erin Duggan said the May 14 memo is intended to guide the actions of state agencies. It states that agencies must change policies and regulations to make sure "spouse," "husband" and "wife" are clearly understood to include gay couples.

In just such a way might we as easily contrive to find that a driver's license entitles one to fly a plane.

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"Underhanded activism?" What is underhanded about a court ruling in a case presented to it or about an elected official making a policy statement?

And what specifically about the court's decision in NY do you disagree with Justin? I mean, what part of the ruling was improper given NY state precedents? Or perhaps you are just wishing a policy outcome from a judicial decision without having the slightest clue about the legal issues involved.

But I'm sure that's not the case.

Posted by: Pragmatist at June 2, 2008 10:46 PM

Well, how about this:

The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” (May, 305 NY at 493), and that cannot be said here.

Got it? Because same-sex marriage was outside the very definition of marriage, it has not come up, so an aspect of the law is summarily dismissed as inapplicable.

In its thinking, it's not unlike a previous New York ruling that found a same-sex couple to be "married" on the grounds that their Vermont civil union was sort of like a common-law marriage... into which they could not enter in Vermont because that state didn't offer marriage to homosexuals. In other words, it is what it is not because there is no way for it to be what it cannot be. Or something.

The bottom line is that the courts are acting with a free (loose) hand, here, because the definition of marriage with which all precedent was written has been asserted to be different than it was always known to be.

Posted by: Justin Katz at June 3, 2008 6:22 AM

So much pointless thrashing about.

Look out Justin! Those queer couples will move into your neighborhood and make the property values go up. Oh the humanity!

"We hold these truths to be self-evident, that all men are created equal. Except the queers. Back of the bus for them." - Early draft of the Declaration of Independence.

Posted by: Greg at June 3, 2008 8:23 AM

Fear not, Jus. If gay couples in the househunting process learn you live in Tiverton, they will stay far, far away. And childless couples who could help expand Tiverton's tax base without putting more children into the school system and further burdening town services will just park in another town instead.
And you wouldn't have to worry about your children being sullied by any adopted offspring of gay couples, either.

Posted by: rhody at June 3, 2008 11:33 AM

You guys can throw as many unfounded personal attacks at me as you can think of, and it won't disguise the fact that you're apparently unable to address arguments as made. Out of such forced ignorance and lack of consideration as you exhibit do societies fall.

Posted by: Justin Katz at June 3, 2008 12:22 PM

I can't address your argument because your argument has all the solid grounding that "Negros and womenfolk can't vote" had. It's just friggin dumb. Your whole argument is based on maintaining a violation of the spirit of the Constitution.

Posted by: Greg at June 3, 2008 12:47 PM

I don't understand the post above yours either, Greg.
Dayum, if the argument against gay marriage is no longer selling on the conservative forum...

Posted by: rhody at June 3, 2008 2:55 PM

I'm not the classic conservative. I'm of the younger generation who actually believes that 'small government' should stay out of people's lives, bedrooms, cupboards, etc... I'm for gay rights, legalization of controlled substances, and spending taxpayer money intelligently. So I'm a pariah in 'my' party.

I'm also the way of the future and I'm just waiting for the rest of my party to wake up and figure it out.

Posted by: Greg at June 3, 2008 3:17 PM

Justin, you do come off sounding bitter here using terms like “underhanded” and comparing marriage licenses for same-sex couples to drivers license for flying airplanes. The reason a drivers license does not legally entitle one to fly a plan is that the skills required to safely fly a plane are different than those needed to drive a vehicle.

You have a strong argument that the majority court in CA & MA went beyond its reach and did engage in legal activism rather than interpreting the current law. I agree with you that denying marriage to same-sex couples is not unconstitutional if for no other reason that to allowing same-sex marriage ones must change the definition of marriage. I do not see how anyone can say that marriage is not currently defined as requiring opposite-sex. But that does not mean there is no merit to the pursuit of legally acknowledging same-sex relationships. There are both societal costs and benefits. It is the way in which it is happening that is unfortunate – and I think even detrimental to the entire cause.

Posted by: msteven at June 3, 2008 5:16 PM

No, Greg, you can't address my argument because you're pigheaded and enamored of the idea that you're part of some rebellious next generation. (Bah!)

In actuality, my position on same-sex marriage begins with a libertarian principle: The state has no legitimate basis for solemnizing marriage unless:

1. Its recognition is justified for reasons of property and mutual care, in which case justice requires that the institution be open to already-related coupled (e.g., siblings) and perhaps groups.

or, from the other side:

2. Its recognition is meant to direct the natural (and historically tricky) inclinations to have sex and the reality that heterosexual sex can result in the birth of children toward the family unit that is healthiest and most conducive to social cohesion.

The argument goes on, of course, but it makes no sense to move on if there are points of debate to be offered.

Posted by: Justin Katz at June 3, 2008 7:30 PM

"Underhanded Activism"

Like when Rosa Parks, would not sit in the back of the bus?

Posted by: Gay Pilot's Dad at June 3, 2008 7:42 PM


I agree that same-sex marriage has its potential benefits and its potential costs. Long thought and analysis, however, has led me to conclude that the costs are both more substantial and more likely, ultimately undermining the benefits that we've historically derived from the culture of marriage.

Indeed, the manner in which the movement is advancing its cause (witness, also, the unthinking responses to me on this very site) indicates that it (the movement) has limited interest in those aspects of marriage that I and probably you would consider to be its social benefits.

As to your first paragraph, I'd begin to reply by quoting something from your second:

I do not see how anyone can say that marriage is not currently defined as requiring opposite-sex.

That's where the "underhanded" comes in. The governing regime in NY ignored evidence that marriage is definitionally opposite-sex, then a couple of steps later, it issued that references to gender be erased from the law. That's underhanded.

I'd also argue that, as with definitions of a "driver's license," extended intimacy between a man and a woman is critically different in at least one way than between two people of the same sex. The skills of driving/flying are immaterial to the point regarding interstate legal definition, inasmuch as State A could require that people who are able to fly planes are the only people eligible for "driver's licenses." The only legally rational, not to mention sane, action from State B is to find that its definition of "driver's license" is different.

The point is the absurdity of ignoring definitions, while for emotional reasons, same-sex marriage receives a pass from those who'd rather the whole thing just blow over without their having to question their preference to feel like compassionate, forward-looking citizens.

Posted by: Justin Katz at June 3, 2008 7:42 PM

Gay Pilot's Dad:

I was unaware that Rosa Park was a judge charged with interpreting the law or a governor charged with enacting it. Private citizens are, of course, free to pursue activism (understanding, of course, that it may have consequences). If a public official does the same, he or she is no longer acting in is appropriate capacity and is, therefore, justly maligned.

Posted by: Justin Katz at June 3, 2008 7:45 PM

"Unthinking Responses"
IE: All of the above Responders, are unthinking
Because they disagree with your right wing theory.

Posted by: Gay Pilot's Dad at June 3, 2008 8:31 PM

No, "unthinking responses" is a subset of the category "responses," some of which disagree with me reasonably and therefore are not evidence of the movements reckless strategies and ill-considered motivation.

If I'd meant "all of the above responders," that's what I'd have written.

Posted by: Justin Katz at June 3, 2008 8:41 PM

When we've come to the point where we are unable to discern that the definition of marriage has always been the union of a man and a woman, we've more than lost our moral footing. Indeed, morality has long been lost and may ne'er show her face again.

What I find intriguing about the responses to Justin's post is the refusal to accept that marriage is defined as that between a man and a woman. When people were fighting for black people or women to have the 'right' to vote, the definition of voting was never at question. Going further, when there were laws on the books outlawing interracial marriages, the definition of marriage was not in question in those cases.

What separates the gay marriage debate is the, in my opinion, arrogance of its proponents to dismiss the real definition of marriage and castigate those who are fully aware of its simple meaning. In so doing, they undermine their points of debate and look a bit silly.

What's more American people continue to re-assert the definition of marriage as that between a man and a woman time and again. Are all of these millions of people bigoted, backwards thinking, or spitting upon the Declaration of Indepence? If you want to argue that they are, then you're more out of touch than your comments indicate.

Posted by: donroach at June 3, 2008 10:00 PM

Is it not the purpose of a rightous and just republic to defend the minority rights in the face of majority opposition?

I don't remember the southern states' citizens getting an opportunity to VOTE on desegregation of schools. In fact I seem to remember that they were downright violently opposed to such an event. As the majority they must have been right and the courts were WRONG to attempt to impose a contrary will upon them.

Posted by: Greg at June 3, 2008 10:09 PM

I'm pretty sure, Greg, that the courts were mainly upholding laws already on the books, without any need for creative reinterpreting. I will make two points, nonetheless:

1. A strong argument could be made that some of the methods and strategies whereby our nation peeled off its racist past actually prolonged racial strife.
2. The fact that advocates for same-sex marriage have borrowed some of the themes from past civil rights movements does not mean that they are accurate in their characterization.

It is certainly not "the purpose of a rightous and just republic" to assent to force minority will on the majority if the claims to rights are dubious. Marriage is a relationship between a man and a woman, and unless you intend to assert that men and women are interchangeable in every particular (in which case you ought to admit yourself to an insane asylum), then you must at least admit the possibility that millennia of cultural development aligns with something important in that respect.

Posted by: Justin Katz at June 3, 2008 10:29 PM

Hey, can anybody out there in left wing land help me? I want to marry my dog, but everyone keeps telling me I'm a total freak! Can you left wingers help me out with these bigots?

Posted by: Mike Capelli at June 3, 2008 10:58 PM

"I want to marry my dog" M Capelli
You should be proud to have Mike Capelli
as a suporter

The next time a gay kid is asaulted or
murdered because of who they are.Please
take your friend Mike Capelli,with you too Coventy GOP Rep's Victor Moffett's, 2nd State House "Anti-Gay Hate Rally"

At the first "Moffett Hate Rally" his ardent supporters (right wing loons), claimed that the Station Night Club Fire, was Gods wrath on RI for giving Gays (some) civil rights
Then Moffett's right wing fans, claimed 9/11 was also God's wrath for giving Gays (some) civil rights

Posted by: Gay Pilot's Dad at June 3, 2008 11:31 PM

The opposition to gay marriage may be slowly shrinking, but the holdouts are growing more pathological. Onward, sons and daughters of Bull Connor (if they call themselves Christian soldiers, that just seems like a big pile).
Liberals and South Park conservatives can certainly find some common ground here.

Posted by: rhody at June 4, 2008 12:44 AM

I am saddened that none of you supporting gay marriage addressed my points.

Indeed the next post by greg just ignored it and kept going with the general theme of the commentary within the comments section: ignore the other and move along.

Greg, you cannot equate the civil rights movement to the gay marriage movement because the definition of the 'right' being denied was never in question. Instead it was whether a certain class of people had the moral right to access such things.

You're trying to make that argument with gay marriage, but it will continue to fall flat. And opposition to gay marriage isn't 'falling away'. It's coalescing as people are really turned off by name calling and are unwilling to redefine marriage.

Posted by: donroach at June 4, 2008 5:13 AM

It seems to me that the only "union" some of you think is worthy is the one that exists between a man and a woman. I think those unions would exist without courts or churches. People express their sexuality with or without interference from the state and always have. Recognition of that fact is indeed is what the courts Justin has written about have done. It makes sense that Mike Capelli would want to marry his dog as its unlikely he could find another person for that purpose. I would stop short of endorsing such a union until I could determine how the dog felt on the subject.

Posted by: Phil at June 4, 2008 7:30 AM


I happen to agree with you the proponents of SSM should acknowledge that SSM is indeed a significant change to the definition of marriage and also that the ‘bigot’ argument, comparing this issue to civil rights is … not helpful to the cause. Also not helpful to the cause is going through the judiciary despite the fact that the judiciary is unfortunately behaving more and more like legislatures.

First, I still think “underhanded” which refers to intentional deceit, is an unfair characterization. The judges may be incorrect, and I believe they are, but that does not mean they are intentionally deceiving. As far as the driver’s license analogy, your response to my comment showed much more nuance than what was in the original post.

The debate should be about the benefits and costs of legally acknowledging gay relationships.

Posted by: msteven at June 4, 2008 11:59 AM

Somebody might want to check their facts as to WHY the judiciary in CA took up the case. Like, for example, that the Governor there expressly asked them to.

Posted by: Greg at June 4, 2008 12:42 PM



Statement by Gubernatorial Press Secretary Margita Thompson on AB 849

Gubernatorial Press Secretary Margita Thompson today issued the following statement regarding AB 849:

"In Governor Schwarzenegger's personal life and work in public service, he has considered no undertaking to be more noble than the cause of civil rights. He believes that gay couples are entitled to full protection under the law and should not be discriminated against based upon their relationship. He is proud that California provides the most rigorous protections in the nation for domestic partners.

"Five years ago the matter of same-sex marriage was placed before the people of California. The people voted and the issue is now before the courts. The Governor believes the matter should be determined not by legislative action - which would be unconstitutional - but by court decision or another vote of the people of our state. We cannot have a system where the people vote and the Legislature derails that vote. Out of respect for the will of the people, the Governor will veto AB 849."

Posted by: Greg at June 4, 2008 12:47 PM
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