June 18, 2008

Differing from Go

Justin Katz

Maggie Gallagher gives the impression of one exasperated with the same-sex marriage debate:

What about polygamy? Is that the natural next step? When people ask me this, my stock answer has become, "I don't know, go ask the guys in the Harvard Law School faculty lounge." Because if the California decision stands, there simply is no longer any case to be made we have begun to win the war for judicial restraint. If a court can rule that same-sex marriage is a fundamental right (i.e., one deeply rooted in our nation's traditions) then it can make up anything. Elite legal minds get to figure out what they think and break it to the rest of us once they've decided. ...

Here's the conclusion I've come to after four-plus years of active participation in the same-sex-marriage debate: Gay marriage is not primarily about marriage. It's also not about Adam and Steve and their personal practical legal needs. It is about inserting into the law the principle that "gay is the new black" — that sexual orientation should be treated exactly the same way we treat race in law and culture.

Gay-marriage advocates say it all the time: People who think marriage is the union of husband and wife are like bigots who opposed interracial marriage. Believe them. They say it because they mean it.

The architects of this strategy have targeted marriage because it stands in the way of the America they want to create: They hope to use the law to reshape the culture in exactly the same way that the law was used to reshape the culture of the old racist south.

Plenty of reason certainly exists for exasperation, considering that precedent, law, and culture can be no defense when the prior assumption being made (and rarely defended) throws all previous language and understanding out the window. Consider one local judge's treasure map toward legalized same-sex divorce in Rhode Island:

... in a December 2007 decision that drew national attention, a divided state Supreme Court ruled that Family Court lacked jurisdiction to grant the divorce. The majority said that under the 1961 law that created Family Court, the word "marriage" meant just one thing — the union of a man and a woman. ...

Yesterday, Superior Court Judge Patricia A. Hurst dismissed Chambers' claim for divorce, saying it is clear Superior Court no longer has jurisdiction to grant divorces now that they're handled in Family Court. And there is no point in posing the jurisdiction question to the Supreme Court, she said.

"If same-sex marriage was not on the legislature's mind in 1961 when it passed the Family Court Act, then same-sex marriage certainly wasn't on its mind when the Superior Court was established over half a century earlier in 1905," Hurst wrote.

But in making the ruling, Hurst raised the question of whether the statute that created Family Court is unconstitutional now that the Supreme Court has interpreted it to say that Family Court cannot grant divorces to same-sex couples.

"The question yet to be asked is whether the Family Court Act, now having been interpreted by the Supreme Court [in the Chambers and Ormiston case] impermissibly deprives spouses in a same-sex marriage to equal protection of law on account of the coincidence in their gender," Hurst said. "Assuming the legislature and the executive branch continue to ignore this problem, the question will be whether the Family Court Act is unconstitutional for the reason that it violates state constitutional principles of equal protection."

See, if we change the definition of a thing, then suddenly everything that we've built upon that thing is subject to toppling in order to enforce the new definition:

  • Assertion: Marriage has nothing to do with the spouses' being of opposite sex.
  • Problem: Law and tradition both make it manifestly clear that marriage is very much a relationship between people of opposite sex.
  • Finding: Any law that has the effect of proving, reinforcing, or putting into action that long-understood definition must therefore be unconstitutional (and therefore in danger of challenge and judicial dictat), because:
  • Assertion: Marriage has nothing to do with the spouses' being of opposite sex.

How in the world could anybody fret that same-sex marriage would have a broader effect than appears to be the case for that nice gay couple on that primetime drama?

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"...that sexual orientation should be treated exactly the same way we treat race in law and culture."

Yes. We already do this in some places. It's already part of the EEO law.

Posted by: Greg at June 18, 2008 7:55 AM

Massachusetts hasn't fallen into the sea (in fact, its economy is still stronger than Rhode Island's). I doubt California will, either.
I'm not old enough to remember when antimiscegenation laws started toppling, but I'm willing to guess the reactions were similar.

Posted by: rhody at June 18, 2008 11:37 AM

The average gay AIDS patient has had 1,100 lifetime sexual partners.

If we allowed gays to marry, maybe such insane promiscuity would decline a bit.

Posted by: Citizen Critic at June 18, 2008 5:55 PM


Society "changes definitions" all of the time. The definition of voter has changed many times as has the definition of marriage.

You'll have to do more than simply lament about changing definitions. After all, someday those darned liberals might change the definition of voter and let women vote! Heck, they might even change the definition of marriage and permit women to hold property!

Posted by: Pragmatist at June 18, 2008 8:24 PM

Surely you could, if you tried, overcome your rather common quip and make some simple distinctions.

A voter is one who votes. We sometimes say that people are "voting with their feet" or "voting with their dollars," but that does not mean that it would be appropriate to lower the voting age to eight because children are empowered to "vote with their dollars" when it comes to their choice of ice cream stand.

Likewise, a spouse is "one who is married." The reality is that homosexuals have never been barred from this definition. They just preferred not to enter into the relationships encompassed by the definition of marriage.

Posted by: Justin Katz at June 18, 2008 11:26 PM

"Likewise, a spouse is "one who is married." The reality is that homosexuals have never been barred from this definition. They just preferred not to enter into the relationships encompassed by the definition of marriage."

Your answer is really "If only those damned queers would settle down in a nice sham marriage with a woman all would be well."?!

Maybe, oh maybe, if they could only find Jesus in their hearts they would turn away from their heathen ways and learn to love the vagina.

Excuse me. I'll be over here checking the calendar to make sure it's not the 19th century...

Posted by: Greg at June 19, 2008 8:04 AM


Surely you could understand, if you tried, that you are playing as much with definitions as you accuse others of doing.

You say that "a voter is one who votes." That doesn't really get at the issue at all now does it? Historically, the qualifications of those who may vote -- the definition of "voter" -- have changed many times. It would have been unthinkable for an early 19th century American to believe that a woman could be a voter. But the definition of voter changed. The law changed the very definition of an old institution that was the bedrock of a form of government in a radical way.

And by the way, what an odd view of marriage you have if you can dismiss so breezily people's desires to enter into such a relationship by saying that they "prefer" not to enter into them. Is it really a preference that prevents them?

Posted by: Pragmatist at June 19, 2008 10:24 AM

But you're not proposing to change the terms of who can "marry." You're seeking to change the definition of the relationship that is "marriage." As I said, homosexuals are free to marry by the traditional definition of the word "marriage," whereas women were not able to vote by the definition of the word "vote."

Posted by: Justin Katz at June 19, 2008 9:14 PM

If one thinks that there wasn't some groundswell planning on the part of Margaret R. Chambers and Cassandra B. Ormiston to marry in Massachusetts ONLY to test RI law is misleading themselves.

It appears the sole purpose of their 'marriage' was to test the legal right to divorce in a state that doesn't recognize gay 'marriages'.

Judges need to get back to enforcing the current laws and not inject their personal opinions which eventually become the basis for new law.

Posted by: Roland at June 22, 2008 10:28 AM
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