Positive Liberty

Marriage Wins in California

Jason Kuznicki on May 15th 2008

I’ll have to read the decision to see if I agree with the reasoning, but this was definitely the right outcome.

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32 Responses to “Marriage Wins in California”

# Braxton Thomasonon 15 May 2008 at 2:22 pm

Hooray! Sanity does win sometimes.
# Chris Berezon 15 May 2008 at 4:45 pm

I just saw this on the news half an hour ago. It made me really happy.
# Chuckon 15 May 2008 at 5:59 pm

At least in CA the medievalists won’t be able to amend the state constitution. In most other states the electorate is not so enlightened, and this ruling will be used as a piece of propaganda by the bigots in their assault on civil rights.
# Mazzaon 15 May 2008 at 9:23 pm

It is a truly sad day in America when we witness first-hand morality being tossed out the window, all in the name of “enlightenment.” The courts may have decided on this, but that doesn’t make them right. I know…go ahead and call me a “Christian biggot” or an “intolerant and blinded fool,” but I cannot see our Founding Fathers being ok with this decision.

A true shame.
# Alecon 15 May 2008 at 10:26 pm

Don’t be so certain, Chuck. They managed to vote on one such initiative and pass it in 2000. Don’t think that they might not pull it off in 2008, in the form of a state constitutional amendment.
# Jason Kuznickion 16 May 2008 at 5:47 am

Mazza –

I don’t regard homosexuality as immoral, but I suspect we won’t be able to agree on that subject.

I have no intention of calling you a bigot, or intolerant. I think you are mistaken, that’s all. Would the Founding Fathers be okay with this? No. But then, they also opposed women’s suffrage. There are many things we have learned in the meantime, I’d say. Eventually I think we will understand this to be one of them.

Alec –

I share your concern.
# Braxton Thomasonon 16 May 2008 at 8:15 am

Jason, you’re too nice.

Mazza: The Founding Fathers were great men, but that doesn’t make them the final authority on anything. As Jason points out, they were wrong on women’s rights; they were wrong on many things.

Are you seriously insisting on rolling back our morality to 250 years ago? Shall we allow people to keep slaves? Prevent interracial marriage? Prevent women from voting, owning land, or getting a divorce? Shall we try to civilize the “red man” again?

Your argument from the Founding Fathers is faulty unless you are willing to openly advocate all of the above. Otherwise, you’re just using it to mask your bigotry, intolerance, and foolishness.
# Braxton Thomasonon 16 May 2008 at 8:22 am

By the way, this is one thing that really annoys me about Obama. If I were to ever vote for someone who is so wrong on economic issues, he would need to be very, very right on social issues, yet Obama still tiptoes around the stupid distinction of “civil unions” vs. “gay marriage”. Grr!
# D.A. Ridgelyon 16 May 2008 at 8:46 am

I understand why gay couples wish to have marriage available to them but, FWIW, I’d prefer the state to extricate itself entirely from the business of marrying people of any sort and make all status changes that occur as a result of the current civil institution of marriage available to parties under the law of contract. Religious institutions should, of course, be permitted to conduct sacramental marriages (whatever that may mean to them) and to restrict them as they see fit, but they should not be agents of the state and such ceremonies should have no legal effect.

On the question of the Founding Fathers’ intent, I believe I’ve cited the University of Chicago / Liberty Fund’s excellent Founders’ Constitution before, but it seems especially appropriate to quote it here again. Here is an excerpt or two from Thomas Jefferson’s proposed criminal law reforms of 1778:

Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.

Sadly, I suspect many today would consider such punishment for women little more than a fashion piercing.
# Braxton Thomasonon 16 May 2008 at 9:10 am

I agree with D.A. on the proper role of government in marriage - not at all. But as long as the government is going to regulate it, they have to do so fairly.
# Jason Kuznickion 16 May 2008 at 12:05 pm

I guess I don’t see the difference between marriage and a highly specialized form of contract, even as it exists today, with the exception of the tax status changes, which I do not think should exist.

To those of you who would get rid of marriage in favor of contracts only, what would the practical difference be, apart from taxation, and from the (admittedly attractive) ability to select only certain components from the contractual bundle?
# Brandonon 16 May 2008 at 12:12 pm

This opens a Pandora’s Box. For what purpose, outside of protecting a moral standard of social order, does the law function? A corpus of law exorcised of moral virtue is not law at all but whim enshrined in code. I see no purpose to this law but to make a cultural point, namely legal acceptance of gay marriage in place of public acceptance, and to obtain the legal benefits of traditional male / female married couples. That said, who decides what is moral or immoral? We the people do. As long as this remains within the jurisdiction of the state, I do not believe it illegal only immoral, though a referendum would have made me more at ease than judicial dictate by a handful of government officials. Considering the failure of previous public referendums on gay marriage across the nation, no mystery surrounds why this no longer occurs. I do not believe this to be a constitutionally sanctioned endeavor, but I do not believe it to be a constitutionally prohibited endeavor. I fear, however, that those who claim this as a mantle of liberty would happily force this “freedom” upon those states that are culturally opposite of the Sunshine State and broadly opposed to gay marriage. Maybe, however, California will be too busy settling the now inevitable legal questioning of incestuous, polygamous, and cross-species marriages to trouble the rest of the nation.

“There is in all of us a strong disposition to believe that anything lawful is also legitimate. This belief is so widespread that many persons have erroneously held that things are “just” because the law makes them so.”

- Frederic Bastiat
# Braxton Thomasonon 16 May 2008 at 12:26 pm

I’m not sure what you mean by selecting only certain components.

But I see two big practical differences if the government gave up on regulating marriage as a separate institution. First: smaller government - think of all the nonsense involved in getting a marriage “license”, how divorces are handled in court vs. more “pure” contractual law. It just seems like we have a lot of overhead dedicated to regulating how people live their lives.

Second, it would utterly demolish the Christian Right’s objection to gay marriage — if the government had no say in the matter, they would have no ability to have the (already stupid) position that gay marriage somehow denigrates their concept of marriage. Without government interference, they could be free to define marriage however they wanted.

And third (yes, I can’t count), it would open the door for more complicated living arrangements such as polygamy/polyamory (not talking about child molesters here :P ) and to provide legal protection to the parties involved should disputes arise. More freedom is better.

Heh. Due to this position, I get a stupid kind of amusement in answering the question ‘Do you support gay marriage’ with “Short answer: yes. Long answer: no”. The long answer is above - there shouldn’t be any state regulated marriage, so I’m not sure what it would mean to “support gay marriage” given the context.
# D.A. Ridgelyon 16 May 2008 at 12:37 pm

First and foremost, the parties to a contract do not need the approval or agreement of the state to rescind or dissolve the contract.

It’s more complicated than that, though. Essentially, marriage constitutes a change in legal status, legal status being an officially recognized category as a result of which various legal rights and / or responsibilities arise and which is not, typically, freely alienable. Citizenship is a status. So is parenthood. Constitutionally, membership in certain categories designated as suspect classifications results in different legal status; e.g., I can fire you because you are tall but not because you are black. So, also, in both commercial and tort law we have increasingly shifted to status concepts to determine, e.g., product liability.

One way to look at Western economic and political history is to see a progress from an almost entirely status structured feudal system to a contract governed post-feudal order. Unfortunately, progressive reforms over the past half century or so have constituted an unfortunate return to status taking precedence over contract. This not only encourages identity politics, it imposes variously ill-fitting one-size-fits-all packages of rights and remedies and gives the state more power than necessary.

Again, I understand why, if marriage is going to continue to be a legal status, gay people want equal access to it; but that only reinforces the underlying problematic nature of marriage as a contemporary institution.
# Trigeminalon 16 May 2008 at 12:42 pm

The Court has totally overstepped its bounds. There is no tradition of gay marriage in CA they are acknowleging, and there is nothing in constitution of CA that makes legal recognition of “gay marriage” a fundamental right. One can certainly make any association they want, and love whoever they want, but it is not a right that society legally recognizes that loving relationship, no matter how much I may respect it. CA just casterated marriage and handed out love licenses… creepy.

Now for the moral opinion: It is wrong to equilibrate a generative relationship that provides children both a mother and a father with a NON generative (by design) relationship that provides a mother and guardian or a father and a guardian.

A judge can rule the sky is yellow, it doesn’t make this true.

I am teaching my children the truth about marriage, no matter how many gays and straights screw it up.
1. One man, one woman
2. Permanent
3. Exclusive
4. generative by design
5. Freely chosen.
# Jason Kuznickion 16 May 2008 at 1:54 pm

This opens a Pandora’s Box. For what purpose, outside of protecting a moral standard of social order, does the law function?

The law most certainly does not exist to protect morals. If it did, we would criminalize laziness or gluttony. The law functions to keep you from doing harm to me, and vice versa, while allowing all of us to pursue happiness as we see fit. My marriage to a man will not harm you, and the responsibilities I am undertaking for my partner are none of your concern — while he, on the other hand, wants me to take care of them rather than any other individual. So why should the law intervene, except to see to it that no one interferes with our wishes?

I see no purpose to this law but to make a cultural point,

Want to tell that to my partner, when he’s dying in the hospital, and I’m not allowed to see him? Or would you be too busy fretting about interspecies marriage even to care? And how would you feel if I compared your relationship to bestiality?
# Positive Liberty » Repost: On Nurturing as the True Purpose of Marriageon 16 May 2008 at 2:09 pm

[...] There has been a lot of discussion about the California same-sex marriage decision, including questioning whether the state belongs in marriage at all — as well as the old canard that if gays want to marry one another, we are now legally helpless against all those who are eager to marry their pets. (And if Jews are recognized as citizens, pretty soon we’ll have to recognize toads, too!) [...]
# Braxton Thomasonon 16 May 2008 at 3:03 pm

“It is wrong to equilibrate a generative relationship that provides children both a mother and a father with a NON generative (by design) relationship that provides a mother and guardian or a father and a guardian.”

This is yet another astoundingly stupid argument against gay marriage. Are you going to outlaw heterosexual marriage between people who have no intention of having children? Many of my friends are in this position. What about women getting married when they are past menopause? Couples who are not interfertile? Is that to be illegal too.

When the opposition cannot even apply their arguments consistently, it’s clear that they are merely making ad hoc arguments to justify an irrational position.
# Jason Kuznickion 16 May 2008 at 3:57 pm

It’s not astoundingly stupid. It’s a reasonable attempt to figure out what marriage is for. I think it’s wrong, but it’s not a bad try.

You want astoundingly stupid? That’s when people say “If we change one thing in our understanding of morality, we must immediately abandon all morals whatsoever.”

That’s astoundingly stupid.
# Braxton Thomasonon 16 May 2008 at 4:00 pm

Hrm. Well, maybe you’re right, Jason. I just get irritated easily.

As I said, you’re too nice :P
# Braxton Thomasonon 16 May 2008 at 4:26 pm

Okay, thinking about this issue of “astounding stupidity” more.

I think it’s more like “astounding dishonesty”. The argument is clearly wrong unless the proponent of it is willing to apply it consistently (i.e., in the case of couples who cannot or will not have children).

If Trigeminal isn’t willing to apply it consistently, and isn’t willing to retract his statement, then he (or she, I suppose) is either dishonest or stupid.

Some arguments can be wrong and still be intelligent. I don’t believe this is a case of that though.
# Jason Kuznickion 16 May 2008 at 4:39 pm

The way I’ve seen it put is as follows. I’m paraphrasing from memory, from a very intelligent presentation of the argument as recapitulated in Andrew Sullivan’s Virtually Normal:

The purpose of marriage is to raise up the next generation. We allow infertile or elderly heterosexual couples to get married because they at least sort of resemble the ideal, because sometimes infertility isn’t total, and because miracles can happen. Also, it’s a consolation to the couple, and for one other reason: It would be wrong to make all heterosexual couples prove that they could procreate before they got married. This would be a gross invasion of their privacy and might require them to have kids out of wedlock. This would be an even larger deviation from traditional marriage than two men marrying each other.

Make sense? It’s actually not a terrible argument, I think, but it does require a lot of very clunky add-ons to make it work. (And, as I’m fond of noting, if God could make Sarah conceive a child even though she was decades past menopause, and if God could make Mary conceive a child as a virgin — well then why couldn’t God make a man give birth too? It would be a miracle, but if we’re going to work miracles into our explanatory model, let’s not then turn around and set limits on the power of the Almighty.)
# D.A. Ridgelyon 16 May 2008 at 4:41 pm

Curiously enough, the position of the Christian church has tended to be simply to require that the couple to be married agree to be open to the possibility of children. That is, of course, a theological imperative and not, in my opinion, a legitimate concern of the state.

I might add here that it seems to me that it is, again, only in the context of marriage understood as a status arrangement that we should even bother to ask what social purpose the institution serves. While, pace Mr. Kuznicki’s repost above, nurturing is a fine justification for marriage, I question whether marriage understood as a contract needs any justification beyond the fact that the parties agree to it.
# Braxton Thomasonon 16 May 2008 at 4:53 pm

Okay, I will accept Jason’s (Mr. Kuznicki? Dr. Kuznicki? — I tend to be informal) phrasing of the argument as intelligent but wrong. I agree that the argument makes sense within the context of a specific religious viewpoint.

As to nurturing children: I tend to be rather Heinleinian in this area. Any familial structure that works and contributes to healthy happy children is great.
# D.A. Ridgelyon 16 May 2008 at 5:37 pm

“(Mr. Kuznicki? Dr. Kuznicki? — I tend to be informal)”

I tend to be formal but I generally reserve “Dr.” for those whose earned doctorate and subsequent license includes the right to prescribe controlled substances. I know, it’s unfair to physicists and other folks with Ph.D’s from excellent schools and in rigorous fields, but you gotta draw the line somewhere and that’s where I draw it.
# Jonathan Roweon 16 May 2008 at 5:41 pm

I tend to be formal but I generally reserve “Dr.” for those whose earned doctorate and subsequent license includes the right to prescribe controlled substances.

Not a very convincing place to draw the line in my opinion. May I remind you that DENTISTS can write prescriptions and like to be called Dr. Although as someone with a JD I DON’T go by “Dr.” but the one party I REFUSE to consider real “Drs.” chiropractors.
# Alan Scotton 16 May 2008 at 7:35 pm

A few thoughts:

Re Braxton on Obama:
It’s true that Obama still tiptoes around the issue of Gay Marriage vs. Civil unions, but I think that’s a necessity for anyone running in a nationwide election. I’m not happy that our nation-at-large is still so wrongheaded about the issue, but I don’t fault Obama for recognizing it.

What’s really interesting, is that Obama is really a stealth supporter of nationwide gay marriage, because Obama (but not Clinton or McCain) supports the full repeal of the Defense of Marriage Act. And if DoMA is repealed, a same-sex marriage made in California or Massachusetts is still a valid marriage in other states, due to the “full faith and credit” clause of the constitution.

Re Judicial Activism/Upcoming Initiative Ammendment/etc.

Whenever a marriage-friendly decision comes out of the court system, there’s a lot of haranguing about “Judicial Activism”, and “thwarting the will of the people and their elected representatives”.

But in California, it’s not a matter of one branch thwarting another at all. Instead, it’s likely to be a case where all of the branches, as well as the citizenry at large, come to agreement. Consider:

*In 2005, and again in 2007, the California state legislature passed bills making same-sex marriage legal. Both bills were vetoed by the governor, who asked the legislature to wait for the court’s ruling in this case.

*Following the court’s ruling yesterday, Schwarzenegger accepted their decision and announced his continued opposition to the anti-marriage amendment.

So, at present, all three branches of the state government (elected and appointed) support the extension of full marriage rights to same-sex couples.

But now the people themselves get a say, and what their decision trumps the courts, legislature, and governor. This November, they’ll be voting on one or more constitutional amendments that limit marriage to opposite-sex couples. And in California, constitutional amendments are enacted with a simple majority vote.

Maybe I’m being overly optimistic, but I expect the amendment to fail. I have faith that my fellow Californians will do the right thing. And if they do, The people and government of California will have all agreed that same-sex couples have the same rights as opposite-sex couples when it comes to the institution of marriage. And any claims of “activism” or “hijacking” will fall completely flat.
# Alan Scotton 16 May 2008 at 7:57 pm

And Trigeminal, when you say:
“The Court has totally overstepped its bounds. There is no tradition of gay marriage in CA they are acknowleging, and there is nothing in constitution of CA that makes legal recognition of “gay marriage” a fundamental right.”

You are very much wrong. The Court’s decision is firmly in line with a proper reading of the state constitution. (I urge you to read the decision if you haven’t already).

Even if you feel that gay marriage is a bad thing, your beef shouldn’t be with the court (who was just doing their job, and well). It should be with the constitution itself.
# Jason Kuznickion 16 May 2008 at 9:16 pm

I tend to be formal but I generally reserve “Dr.” for those whose earned doctorate and subsequent license includes the right to prescribe controlled substances.

I could prescribe you some controlled substances, if that would help. Otherwise just call me Jason.
# D.A. Ridgelyon 16 May 2008 at 9:34 pm

Mr. Rowe, I’ve had some pretty powerful (and very necessary) controlled substances prescribed by a D.D.S. following a root canal. Just in case I ever need some more, I’ll be damned if I start insulting her now. (BTW, Jonathan, as someone else possessed of a JD, I howled with laughter when a fellow attorney once introduced himself to a largely lay audience as Dr. So-and-so. Our little “Esquire” affectation is bad enough!)

Mr. Kuznicki, the question occurs whether I could fill that prescription. (So, Jason, what exactly are you offering here?)
# Jonathan Roweon 16 May 2008 at 11:56 pm

Heh. Well I don’t think chiropractors are permitted to fill prescriptions. I am trying not to be an anti-Dentite. But whatever the term for bigotry against chiropractors…don’t get me wrong, they do good work like deep tissue massage therapists, but they are NOT real Drs. Or so sayeth Penn Jillette.
# Scotton 20 May 2008 at 4:48 pm

The passing of DOMA was really a rather clever piece of legislation based on deceptive propaganda and quite accurate understanding of how the American attitudes regarding same-sex marriage would go.

In the absence of DOMA, the Full Faith and Credit clause would apply ONLY to those states where NO public policy barring same-sedx marriage is well-established. This excludes almost every state (my home state of Maryland being a particularly confused exception). Full faith and credit had very little to do with DOMA except as a way to get the public behind it. The mean-spirited constitutional amendments that many states now have would be clear indicators of public policy in the state and would make the full faith and credit clause moot.

The most important effect of DOMA is that it puts the Federal government in charge of defining marriage, which is just wrongwrongwrong. It creates an additional disincentive for same-sex couples to get married even in states where it’s legal because of the additional bureaucratic burden of being recognized as married by their state but not married by federal law. Plus (and this is where the forethinking of anti-gay political forces worked out well), DOMA means that most Americans will believe that everyone in their own states can just go to a different state to get legally married. Considering how many well-meaning people are still stunned when Jason and I tell them we can’t get married, this will just make it that much harder to convince anyone of the work still left to do.

Still, repealing DOMA entirely is critical to getting the Federal government out of an arena which has been traditionally a much more local issue, whether or not one thinks states ought to be bothered with it at all.

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Marriage Wins in California

32 Responses to “Marriage Wins in California”

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