It is a bit amazing that the court would inject itself like this into a political debate...but its also par for course on this issue...those in favor are not at all interested in a slow, societal evolution vis a vis gay marriage...they want it and they want it now, dammit.

I'm not one of those who says I hate to say I told ya so - so: I told ya so. :o)

The purpose of the gay marriage issue, in the minds of those most ardently pushing it, has much less to do with what gay people should be able to do than it has to do with sticking a rhetorical stick in the eye of those who feel differently about the issue.

WHY IS THIS SO FUCKING HARD TO GRASP?

We reap what we sow.

I think you just answered your own question.

No I didn't.

I have no idea why people think the Judiciary should be legislating. Other than abject stupidity, I mean.

Um, can you edit so that both lines are in italics? Apparently the hard return I copied with your text cancelled out the "open italics" tag...

Rosemary - I think it's because of all the brill successes the SCOTUS has had in the past making prickly social issues go away. Think of it! Slavery, abortion, you name it and a 5-vote majority makes everybody friends again.

Rosemary,
The point I was trying to make in a too-clever manner was:
The people who object to homosexual civil unions and/or marriage object to what they fear the extreme effects might be. The most vocal advocates for homosexual civil unions and/or marriages refuse to give any guarantees of caution or restraint that might ameliorate such fears.
I am just such a person. I waffled on the idea for some time, finally moving reluctantly toward the "opposition" side because I saw little or no consideration for possible harmful effects on the "support" side, even to the point that they considered it insulting to even rais the question of possible unforeseen problems.
So to see the movement derailed by extremist elements moving too quickly seems to be poetic justice, and entirely appropriate in my mind.

I'm sorry, but civil unions have a fatal flaw: they create a "separate but equal" institution.

BTW, the courts don't create legistlation, they can only strike it down. They say to the legislative branch "you fucked up. This is no good. Now go back to the rotunda, start over, and get it right this time."

When the intellectually-bankrupt right screams that the courts are 'legislating,' what they mean is that the courts didn't rubberstamp their latest attempt to limit civil liberties, pollute the environment, screw the poor, execute the mentally retarted, or whatever they were trying to do at the time.

I'm sorry that so many people feel that equal rights for ALL Americans in an extremist position.

Rosemary says
I have no idea why people think the Judiciary should be legislating.

The answer I got when I asked a lefty this question was that the Constitution is too hard to amend. Just for the record, the Constitution was last amended in 1971. Before that in '67, '64, and '61.

I can only come to the conclusion that the Constitution is not that hard to amend, it's just that the changes desired by some can not muster enough support to be called needed changes.

I'll have a post on this later this evening. You're probably not going to like what I have to say. I'm not sure what you people think the courts are there for? But, apparently, you think they're supposed to take a poll before they hand down a decision.

An excerpt from what I'll post later:

"This is NOT judicial activism. This is a court that has the guts to go against popular opinion and state unequivocally that gay people are equal to straight people. They're saying that because gay people are equal, they're entitled to participate in the same institutions as straight people."

You might call that judicial activism. But, as Dean so often likes to point out these days, "you'd be dead wrong."

I have no doubt there'll be a backlash against gays because of this but that says way more about straight people than it does about gay people.

What's the matter, Don, the microbus wouldn't start this morning so you're in a foul mood? What the heck do you think the court is doing when it states what legislation it will accept and what legislation it will strike down? Here's a hint, it's Legislating.

Civil unions only create a "separate but equal" problem if they are limited to same sex couples. When you remove the gender contraints, they pose no such problems. That being said, there are many instances where "separate but equal" is appropriate.

So, Don, your argument would apply to the Second Amendment, too? You think that all laws which strike down or limit the articulated right to bear arms should be thrown back to the legislators from the courts?

Funny thing, it only happens to be the ones on the right that seem to be unfair or unconstitutional.

Rosemary, the problem is very much as you describe. There is no middle ground--there is no tolerance on the issue. That was lost long ago. You either advocate for the requirement that everyone accept homosexuals as equal participants, with equal standing in their private homes, classrooms, and churches, or you don't and are a gay bigot. If people are going to be accused of being a bigot, even if they want tolerance, but don't want infringment of established (and important/necessary) institutions, what else do they have to lose by coming down on the anti side?

You know the old saying, if a wife accuses and punishes her husband for suspected adultery, even when he has committed no such offense, why not do it and at least enjoy what you're going to be punished for anyway.

The courts ARE and have been out of control for a long time. If they want clarification, they'll get it. Another old saying: Be careful what you ask for. Push too hard and this will be the result--which is what I've been saying all along.

The problem here Don is that this decision is going to create a downward spiral for gay advocates.

How is a civil union a separate but equal thing?

People that marry in front of a judge - have had a civil union. How are they not equal? Because of the WORD. Courts and law cannot demand Churches perform marriage.

When the intellectually-bankrupt right screams that the courts are 'legislating,' what they mean is that the courts didn't rubberstamp their latest attempt to limit civil liberties, pollute the environment, screw the poor, execute the mentally retarted, or whatever they were trying to do at the time.

Are you calling me intellectually bankrupt?

When I get my "civil union" I'll still be required to leave the country if I lose my job here - even though I would be "civil unioned" with an American.

That's ONE of the separate but (un)equals.

Go get "civil unioned" in your own country, then. Or become a citizen, then complain about our constitution. That's like me complaining about taxes in Zimbabwe.

No, it says more about what aspect people wish to focus on when they use the word "equal".
The argument for "equal rights" has been used to justify all sorts of atrocities and mercies. Sometimes both at the same time.
After all, does the fetus have equal rights with the mother? Nope. Which is avoided by conveniently redetermining the stutus of humanity of a fetus.
As many people have pointed out, no one has the right to enter into legal union with anyone or anything they want...there are standards. Miscegenation was one such standard that a supermajority of US citizens has decided was inappropriate. Maybe homosexuality as a disqualifier will someday be considered inappropriate someday, but it isn't yet.

Please get some perspective: government and law can be maintained two ways: coercion or consent. If the majority don't like a rule, it really cannot be imposed easily on that majority. Maybe they can be eventually cajoled...maybe they can be forced to take it until they get used to it...but eventually the majority will have to be convinced it is a good idea.

So...have you ever entertained the concept that homosexual marriage/civil union may not be a good idea? I'm not saying it is a bad idea, it might be a great idea...but what you (general you) are convinced is the best thing since sliced bread may not be so clear in everyone's mind.
The concept of social progress is not as clear cut as many of you might think. Hitler thought eliminating the Jews was social progress. Stalin thought eliminating the peasants was social progress. Many smart, thoughtful, kind people can be mistaken about what is actually good.

And so, I raise the question again: what does the majority owe the minority on any specific issue? And what does the minority owe the majority on any specific issue?

"The tyranny of the majority" is another way of expressing "sour grapes", because even if the tyranny of a majority can be pretty bad, the tyranny of a minority is far, far worse.

So homosexual marriage is the same as everything else: if it is worth doing, it is worth doing right. Doing it right may take some time. The mark of maturity and wisdom is to forgo a quick gratification for a more permanent and greater long-term benefit. Implementing a profound social change without maturity and wisdom usually leads to disaster. Thus, as I see activists going for the quick fix now rather than trying to change people's fundamental attitudes to the point where a constitutional amendment allowing homosexual marriages could pass, I am just convinced that things are pretty much working out as human nature indicates it would.

As someone with no dog in the fight (honestly, I don't have a strong opinion one way or the other), I guess I can empathize with Rosemary, whose insight is dead on: the actions of the Massachusetts Supreme Court is going to screw it up for homosexuals.

Nice Geoffrey. Pretty ignorant opinion considering you're not in a position to ever have to worry about it. And, for the record, I'm not civil unioned in my own country. I'm married in mine.

Michael,

I have no doubt there'll be a backlash against gays because of this but that says way more about straight people than it does about gay people.

It doesn't matter what is says about straights. The backlash is going to be against gays. That is why I am so upset.

The battle is going to be harder, not easier because of this decision.

I'll have a post on this later this evening. You're probably not going to like what I have to say. I'm not sure what you people think the courts are there for? But, apparently, you think they're supposed to take a poll before they hand down a decision.

I always like reading what you have to say. Even when we disagree.

I don't think they are supposed to take a poll before a decision. I think that they are there to protect the rights of all people. I don't think they have done it, in this case. I think that they have just signed a death warrant for anything that resembles a gay marriage.

I'm saddened to a degree that I cannot reasonably express.

I see, Michael, my opinion is ignorant because you don't agree with it. And, for the record, I DO have to worry about it. The courts are legislating in a country I'M a citizen of.

Rosemary, this is tragic. I'm beginning to see more and more that victory here will be Pyrrhic, for everyone, including those who don't want to allow gay marriage.

The court itself is not exactly activist as it is catalytic. It just sped the process up. Who knows, maybe public opinion towards gay marriage in Massachusetts was gaining in favor, but the problem here and now is not really this court's decision.

Rather, we can see an abuse of the FF&C, and this will be the true big first shot that will signal the start for an FMA push, as if a state constitution in and of itself could not legislate against gay marriages on its own. NOW THAT is the sad part.

Rosemary, this is tragic. I'm beginning to see more and more that victory here will be Pyrrhic, for everyone, including those who don't want to allow gay marriage.

The court itself is not exactly activist as it is catalytic. It just sped the process up. Who knows, maybe public opinion towards gay marriage in Massachusetts was gaining in favor, but the problem here and now is not really this court's decision.

Rather, we can see an abuse of the FF&C, and this will be the true big first shot that will signal the start for an FMA push, as if a state constitution in and of itself could not legislate against gay marriages on its own. NOW THAT is the sad part.

(Rosemary, sorry about that. Jitter-fingers.)

Rosemary,

I agree with your statement, "I don't think they are supposed to take a poll before a decision. I think that they are there to protect the rights of all people" with two imporant caveats, "as long as extending the rights to one does not infringe on the rights of another, and it is within the purview of the government (federal or state) to protect." Some things are and should be out of the government's reach. In that sense, the government has the authority to add legal code to establish something akin to a civil union and not put any limitations on the genders of those involved, but they do not have the right (or the authority) to alter the meaning of marriage. Marriage is a term reserved to the private realm and only there may be it revised or interpreted.

I think you would be happily surprised to learn that many people would support the creation of an easy and cheap to obtain legal contract (many would not activity support it, but they would not actively fight against it), called something like a civil union, that would provide many of the safety net protections to couples who chose not, or are legally unable, to marry. It is when you begin tampering with the definition of "marriage" that people are going to cry foul.

I know this has been discussed here before, and I wish it didn't have to come to it, but the FMA does not prevent the establishment of civil unions (for same or mixed gender couples/partners). It would only establish a definition of the word "marriage." Even with that, all is never lost. We repealed prohibition when we figured it we had it wrong. Progress, if you want to call it that, has a time frame of its own.

they do not have the right (or the authority) to alter the meaning of marriage. Marriage is a term reserved to the private realm and only there may be it revised or interpreted.

Mrs D: When "Marriage," the term itself, made its way into government code the definition of that instituion as a civil matter, not as a religious insitution, became open for debate as a matter of law.

The FMA clearly indicates that the benefits of marriage may not be conferred onto unmarried couples. This makes civil unions moot.

I agree, this is too-fast, too-furious....let's take it a step at a time, ok? Start with unions and go from there. yeah, I want to marry my sweetheart. I also want us to keep the few rights we have and if it takes time to let the neighbors get used to us, fine.

However, it is also worth remembering that during the Civil Rights movement, the courts acted because legislatures didn't. Don't I recall Geo. Wallace running on a "states rights" platform that excoriated the 60s-equivalent of activist judges? Segregation might still be legal if it weren't for the courts.

I'm not saying this is the same situation, but we have had times when judges have acted to push the people in the right direction and I think most people NOW think that was appropriate.

But mainly this scares me. And my sweetie. This is gonna get ugly.

Mrs. Du Toit,

You said: FMA does not prevent the establishment of civil unions (for same or mixed gender couples/partners). It would only establish a definition of the word "marriage."

Unfortunately, that is not true. The wording of the FMA includes the following:

***
Neither this Constitution nor the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
***

The wording "the legal incidents thereof" would nullify civil unions and domestic partnership agreements.

Michael is right. I've read that stinkin' piece of crap many, many times.

If the FMA comes to pass - it will destroy the possibility or current existance of any gay union anywhere in the U.S. .

I obviously support same-sex marriage, but I am very nervous. I feel like we are on a roller coaster car that has lost its brakes...all we can do is hold on and hope that nobody ends up getting hurt.

I am SO sorry the court did that. I'm not "for" gay anything, much less gay marriage. But, homosexuals have enough stress without the backlash that is coming. That decision wasn't a victory for homosexuals. It was another attempt by a liberal court to disregard the lawful will of the people while pushing a questionable social adgenda.

Rosemary said "I have no idea why people think the Judiciary should be legislating". I'm not sure who you mean exactly by "people", but here's a thought. Its worked effectively in the past for liberals to use the courts to push for a social adgenda that they couldn't get through the duly elected officials. I think they've overestimated their own power AND the tolerance of the moderates. You've hit the nail on the head about a backlash: there is definitely only so far you can push the general American public before they start pushing back, hard.

I think there'll be a two-pronged backlash. First, there could be a cultural backlash endangering whatever acceptance homosexuals have achieved. Often trying to force an opinion on someone only causes them to entrench further. Second, conservatives are beginning to figure out how to effectively work inside the system the same way liberals have for years. (Note all the lawsuits against PlannedParenthood).

I voted for Pres. Bush for a few reasons, but the most significant to me is that I couldn't stand the idea that Gore might be choosing SupremeCourt justices. I don't even necessarily want the court stacked with conservatives, but rather with strict constitutionalists who think that the Constitution as the foundation of our democratic country is a relevant document.

The trouble is that most states have some sort of equal protection clause in their constitutions. It's not the "judiciary" legislating, merely telling legislators to respect the constitutions they swore to uphold.

I could be wrong, but I'd be shocked if the MA court actually mandated gay marriage. I'd almost guarantee you that they mandated that gays and straights be treated equally with regard to marriage. This is a different question.

By this logic, the state could comply with the ruling and their constitution simply by getting out of the marriage business. Which is fine with me. Leave marriages to churches and they can discriminate however they want.

Incidentally, the idea of the govt getting out of the marriage liscensing business was recently proposed by the head of the (now-defunct) Canadian Tory Party. So it's not just a radical leftie idea.

Michael, like you, I'm in a two nationality relationship. Unlike you, we can marry and establish legal residence in either country.

You deserve the same. I hope it comes about soon.

I hope that I'm being very clear. I SUPPORT Gay Marriage/civil unions...whatever the hell we call it. I do SUPPORT IT!

I'm angry about this decision because I feel it will have a reverse effect. Advocates are trying to build momentum for the issue and this decision is being forced down the throats of people that are sitting on the fence, as well as its opponents.

It doesn't matter if it makes straight people look like bigots. It does not matter because it will whip people up into a frenzy and the only people that will be truly harmed are gays. Not straights.

I hope I'm wrong. I fear that I am not.

I didn't think this issue was whether or not you supported gay anything. It's whether you support the courts mandating specific legislation. If that's the case, why do we have a legislative branch?

Shit! I hate to say this, but Rosemary is completely correct! My hair isn't cute so I have the liberty of tearing it out. Fundamentalist wackos are going to ram their amendment through denying states the right to decide on these matters themselves, and I am afraid Bush will feel the need to placate them in order to win. Damn! I thought that if they were given civil unions than gay couples could get all the rights they are being denied now. That way we could get through this election talking about real issues. Apparently, the four members wish to force the issue and change the law to reflect their values. There are many people who feel that they have to be against gay marriage, but when you talk of visitation rights, custody, inheritence, pensions, etc., they have no problem with granting these to same-sex partners. This is because these merely recognize the wishes of the two, whether property, privacy, or parental rights, not demanding anything of them. Calling it marriage sounds to them as if society, meaning the opponents of this, is being forced to approve of their activities. I hope this election does not degenerate into a fight over whether Kerry is a real Christian or not. I remember what happened in the Michigan's governor's race in 2002. This is the perfect way to completely polarize this nation! I think I might just vote for Harry Browne so no one can claim me! Bush, do not cave in. Let Massachusetts pass their amendment in 2006, and let it go at that. Do not push for the amendment!

It's whether you support the courts mandating specific legislation. If that's the case, why do we have a legislative branch?

You have it right. I'm just wanting to clear the air before accusations of bigotry start flying around. That seems to happen to us Extreme-Rightwing wackos.

THE COURTS ARE WRONG. WRONG. WRONG. WRONG.

THEY SHOULD NOT BE LEGISLATING. ANYTHING. AT ALL. EVER.

IT'S NOT THEIR JOB. AND THEY FUCK EVERYTHING UP WHEN THEY DO!!!!

I.T., your argument is not consistant--that was the very issue that Justice Scalia and Thomas brought to the dissenting opinion on the recent Sodomy case in Texas.

I'll summarize it as best I can... Blacks in the South were being denied suffrage--since they had no access and no ability to impact the elections (and therefore had no voice in the legislatures that adopted or could reverse segretation), the courts had an unusual authority to act on their behalf. If the blacks in the South HAD been able to vote, it was clear that the laws would have been written differently, and would not have limited or wrongly prejudiced only blacks. But, as long as The People HAVE suffrage (however wrongly or rightly they might exercise it), the courts have no authority (and it is contrary to a Judge's oath of office) to do anything except uphold the Constitution of the U.S. and the Constitution of the State they represent.

Segregation would have been overturned had blacks had equal suffrage--or been able to have a say in the matter. Only because they were denied suffrage was the argument legitimate to overturn it by the courts and not the legislatures. It did not establish that segregation was wrong outright, but only that it would not have been in place/practiced had those denied the right to vote, been able to vote.

It is one of those old arguments. If today, for example, the people of the state of Vermont chose to segregate their communities, and all citizens were in favor of it, would it be unconstitutional? Strictly speaking, no.

The courts only have super legislative powers, as was the case with segregation, when all other methods of redress are denied (Redress being a Constitutionally articulated right)--one method of redress is the right to vote. As long as you can vote, you must abide by the outcome of the election, or the laws/legislation of the representation, if elected by those who would be entitled and able to vote, if they chose to.

In a nutshell--the courts cannot legislate if The People can vote. Since homosexuals can vote, the segretation argument does not apply.

Hope that makes sense.

I was discussing judicial interference in the legislative process with my brother the other day. The problem, as I see it, is related to the saying, "If the only tool you have is a hammer, then all problems start to resemble nails."

What you have is a particular set of judges who share a particular world view. Through this world view, they define justice and injustice. Since Courts can only issue orders(hammer) to rectify violations of civil rights (nails), every injustice inevitably is perceived at some point as a violation of civil rights.

But not all perceived injustices are actual injustices. Also, the legislative process allows for advocates of competing world views to make their case before the broader public. The arrogance of judicial activism is the elevation of one particular world view over others without having to undergo the rigorous debate of the legislative process. And that is why it is wrong.

It is possible for a judge to perceive an injustice, but that it is not actually an injustice in the site of the majority of citizens. The judge is a citizen, and has every right to pursue his world view in the legislative process. But he does not have the right to impose his world view. He has the power, but he doesn't have the right. And that is a recipe for tyranny.

President Bush talked about the "Constitutional Process" as a way to overcome judicial wrong-doing. But there are two constitutional processes for handling renegade judges. One is to amend the constitution. But I think judges have proven that they are willing to ignore the constitution when it suits their personal prejudices. And I simply don't like messing with the constitution.

The Constitutions of the United States and the various states should be about structure and limiting government power. We should not use the Constitution to limit the freedoms of individuals. That doesn't mean individuals have unfettered freedom. But limitations on individual freedom should come about through the legislative process, not the Constitutional process.

The proper Constitutional process is the impeachment of judges who abuse their power. It is way past time to reconsider the sancrosanct positioning of judges as above society. The judiciary was meant to be insulated from popular sentiment, not immune from it. The proper reaction is not to amend the Constitution. That is the cowards way out, and actually increases the potential for abuse.

The courageous path is to demand that the legislature fulfill its obligation to balance the power of the Courts. The original design is Executive appoints, and legislature kicks out those who misbehave. Judges are not omniscient, omnipotent, or in any other way like gods. We should stop treating them as such.

Too late Rosemary.

What irritates me is the checks and balances have been lost -- that is, the Massachusetts Supreme Court has not subject itself to review through the constitutional amendment process.

It has not given the people enough time to amend the Constitution (that is, it's impossible to amend in time) before it imposes a solution -- a solution that cannot be easily reversed.

Rosemary, Mr. Demmons --

The phrase "the legal incidents thereof" in the FMA doesn't mean what you think it does. The intent of that clause is, if the laws state that X is a legal incident of marriage, then X is not available to anyone who isn't married. If a state legislature passed a law that makes X a legal incident of civil unions, the FMA would not apply to it.

Remember, the point of the FMA is to limit the FF&C clause, so that the Massachusetts courts can't force Alabama to recognize "gay marriages" as marriages under Alabama law. If you can think of a way to do that, which doesn't let Alabama force Massachusetts to abandon civil unions, the drafters of the FMA will be happy to hear it. The current language of the FMA is their best attempt to get exactly that result and no other.

If Massacchussetts passes this Constitutional amendment:

1) There can be no more bloviating about "religious right wing activists."

2) There can be no more bloviating about a "secret Bush agenda."

3) There can be no more talk of the sinister cabal of "pro-family extremists."

One of the most clearly left-leaning, gay-tolerant states in the Union, in one of the top 1% of 1% of gay-tolerant countries, will have firmly said:

STOP USING THE COURTS TO ENFORCE YOUR WILL.

Many of us have been screaching at the top of our lungs for years that this is the kind of backlash you can create when you stop respecting the democratic process and try to use the courts to enforce your will on people who aren't ready for what you want.

This will be the ultimate illustration of how "we want the world and we want it now" is just another way of dousing yourself in gasoline, and daring someone, anyone in the crowd to light a match.

You ask for something new, something that's very new and exotic and different and poorly understood, and you scream at them and you call them bigots and hatemongers and compare them to Fred Phelps and Jerry Falwell and tell them you're no better than the KKK or the people who killed Matthew Shepherd....

Then, do you feel self-righteous in your "prediction" that "bigoted America" finally says, "FUCK YOU!" and strikes you down?

DAMN IT.

Rosemary, you believe that the Court is actually legislating, whereas the Court doesn't consider what it is doing falls under legislation. Again we are in disagreement about definition and/or assumptions. I certainly don't see this as direct legislation because I find it hard to believe that people who have spent their entire adult lives in the judicial branch, are highly educated and respected in his/her field, would collectively be guilty of being way out of bounds. Anyone who thinks that the SCOTUS is "out of control" probably doesn't have a proper understanding of their role. They may THINK they do, hell, they may even be lawyers, but they are not sitting on the SCOTUS!!! It's like football fans screaming at the TV and saying "Goddamn it! Catch the ball!" as if the amateurs sitting in the stands could do it better. Don't put yourself through illusions of grandeur.

Dean, perfectly said. There are times, just like these, when I really, truly wanted to be wrong. I want people to be tolerant of even the intolerant. I wanted folks to get a clue that they were pushing too hard and too fast and were about to risk it all and lose, on a high risk toss. A high risk that did NOT have to be the next move. THERE WERE OTHER WAYS, DAMNIT! But they kept pushing and pushing and pushing and eventually the damn will burst.

Yeah, right on and wait until they toss "under God" out. Its going to be an interesting election.

Rosemary,

I wasn't saying that you were deluding yourself. I'm not that stupid or masochistic.

The court just as much re-elected George W. Bush to a second term...

I support getting the government out of the marriage business...
(see Kinsley, http://slate.msn.com/id/2085127/)

Unfortunately, this activist court has assured that gay marriage and a constitutional amendment will be 1/2 of the serious policy debate in this country for the foreseeable future. Part of the backlash will be re-electing W, which I don't mind. I fear for what other kinds of backlashes may occur that could set back the rights of gays for a generation.

I'm not celebrating.

--scott

Tim:
I wasn't saying that you were deluding yourself. I'm not that stupid or masochistic.

Nice save. I was just reloading when I read that!

:-)

I think the country and all states should remove equal protection clauses from their constitutions. After all, any time anyone asks that those clauses actually be respected, people scream "JUDICIAL ACTIVISM!!!!!!!!!!"

If we want the government to subject different sets of law-abiding citizens to different standards, then let's drop the pretense of equality.

Essentially, the activist gay community and their elite vanguard are declaring most of America to be bigots. They've stopped arguing a lot time ago: You either accept what they say, whatever the cause of the week/decade is, and accept it uncritically, or you're a bigot. Pure and simple.

The culture is shot to hell (pun intended). Worn out. An old bitch gone in the teeth. When state supreme court justices are making decisions like this, and the response is feckless hand-wringing, the Commonwealth of Massachusetts, and possibly the rest of us, have deeper problems than the gay agenda. It means the judiciary has already appointed itself oligarchs. Will we respond?

Richard:

Too late Rosemary.

I'm not sure what you are referring to. I have a sneaking suspicion that you are implying that I am a bigot.

What gives?

Micheal,
Despite our disagreements on the issue of homosexual marriage, I am complete agreement with you on this:
...all we can do is hold on and hope that nobody ends up getting hurt.

I hereby pledge in the public forum of Dean's World that I will do whatever I can to prevent violence or direct prejudice against homosexuals as a backlash from this judgment.

(where we will differ is what constitutes prejudice, I guess...I'm one of those Mrs. du Toit describes that doesn't necessarily directly oppose homosexual marriage, but gets blamed for being a homophobe when I raise questions, so I might as well refuse to support until I get consistent and serious answers to my doubts/questions...)

But the point is, I won't call for a re-instatement of anti-sodomy laws, I will risk my life to prevent phyiscal attacks on homosexuals, I still support letting homosexuals serve openly in the military, etc.

Queen,

I think you're a bigot. If you weren't, you'd have updated my link by now. You're prejudiced against extreme right wing whackos.

I don't know Dean's fucking password!!!

So does that make me a self-hating rightwing wacko?

Oy, the guilt!

**Gasp**

rosemary,

i think the reason why this does not constitute judges acting as legislators is that they are trying to uphold a basic standard of equality for all people. the concept of civil unions and gay marriages are two related, but different ideas. to use some SAT wording:

civil unions:gay marriage::separate but equal:racial integration

and i think its fair to say that racial integration was a controversial topic at the time, particularly in the south, where it was most likely to have a large impact. the issue is not about doing what is popular, or doing what people are "ready for", nor is the issue about certain groups of people wanting everything they want, exactly when they want it. the issue is that there are rights in our country that are currently extended to a certain (large) subset of adults that are not extended to a small minority. it doesn't matter who that minority is, it matters that they are not treated fairly, and every day that the unfairness continues is a blemish on the united states.

Michael:
Under your understanding of the phrase "the legal incidents thereof," would it be the case that all legal of the legal ramifications of a civil union would be void in other states? Say, for example, I'm a lesbian with a child from a previous marriage (to make it simple, say my ex-husband is dead). I'm a MA resident, and I "civil union" my girlfriend, who becomes my child's second parent. In addition, under the civil union laws, she then automatically becomes my legal next of kin, with all the rights attached therein. Now, a few months after our wedding, we go to South Carolina (or somewhere else hostile to gay marriage) to visit relatives. While there, I get hit by a bus and am on life support in the hospital. Does my "wife" have the right to decide to terminate treatment, or does she lose her next-of-kinship as soon as we leave the state? Can she even visit me in the hospital, given that SC doesn't recognize her as a family member? Once I'm dead, can the state take custody of my child and declare it an orphan since they don't recognize my wife as her parent? I guess my question is this: do all of the legal ramifications of being civilly united have to be duplicated with contracts if we ever want to leave the state? Do gay couples need to carry powers of attorney with them all the time in order to have their wishes respected? And if so, unless you never plan to leave MA, what good does a civil union do?

"Essentially, the activist gay community and their elite vanguard are declaring most of America to be bigots."

No Bill. What they are saying is this. You can think whatever you want. But if the constitution says equal protection for all law-abiding citizens, then you must give equal proection for all law-abiding citizens. It's pretty straight forward. Either you have a constitution you respect or you don't.

Something like Brown v Board of Education didn't ban certain thoughts, it banned certain actions.

Listen, if saying all law-abiding citizens deserve equal rights makes me

a) smug
b) a left-wing whacko
c) a judicial activist
d) part of the elite vanguard

Then I don't f***ing care.

When George W Bush invades Iraq in the fact of the opposition of a majority of the world's citizens, he is "principled and determined" because, his supporters say, his is defending values that he believes in.

Yet when people ask the same liberty and freedom to be applied to gay Americans, they are smug, arrogant, elitist and the like.

Simply put, the constitution doesn't make my rights' contingent upon the approval of 50%+1 of society. Or yours either.

Get the state out of the marriage business and it would solve all these problems

Incidentally, states' rights has nothing to do with it. The MA court ruled on an MA law as it related to the MA constitution. The case is states' rights incarnate.

zach,
nonononononono.
The issue is not so clear as you think. If it were that easy, we'd just elect you King of All the Universe.
It does matter what people are ready for.
There are all sorts of ways in which your equation of homosexuality to race is inaccurate, both major and minor.
Please note: I fully understand and appreciate that consensus may eventually be attained regarding homosexual marriage as a right. That consensus not being attained, your assertion that it is a basic right is no more correct or incorrect than the assertion that it is not.

There is, and always has been, a huge difference between policy as written and policy as implemented. If you succeed in implementing an extremely unpopular policy, you just ensure that people will find ways to avoid implementing it.

For instance, do you think the RIAA lawsuits are winning any support for the artists' cause against downloading music? Apple and Pepsi are doing more with their "win free downloads" campaign, because it subtly links the idea that downloads are cheap and easy but fully in the hands of those who control the right to download. Call it "weaning" or "incrementalism", but it works.

In a negative example, the country was ready for abortion. Enough people supported it that an amendment could probably have been pushed through, but it might have taken waiting a few more years...or spending more political capital.
Instead, some enterprising activists seem to have used Ms Roe as a patsy (she now opposes abortion and says that she didn't really understand exactly how they planned to use her situation when she initially agreed....) to mount a legal challenge at a time when the courts appeared favorable. As a result, instead of having a nearly-inassailable constitutional amendment, abortion supporters are now being forced to frame Presidential elections in terms of who might get to appoint justices to either overturn or maintain Roe vs. Wade. That's what I see could happen with homosexual marriage.

But I digress. My point:
No one's viewpoint can be assumed to be so correct as beyond necessity to explain, defend, and persuade. No one should ever assume that if a majority disagrees that the majority should be ignored or sidestepped. Along that route lies fascism. Even if you think your opponents are the fascists.

The establishment of automatic parental rights is one of the issues that make many (such as myself) oppose the same but equal issue with changing marriage.

Marriage may automatically extend some rights (but not all), civil unions would not (they establish community property and the right to speak for the other party if they are incapcitated, but no more than that).

I would not have an issue with a will or declaration of intent which establishes the wishes of the deceased--that they want the surviving partner to be the legal guardian of the children--but it isn't automatic.

But it isn't even automatic now for married people. The man I am married to is not the father of my children. If their biological father were to die (I can dream can't I?), my husband would not automatically be their legal guardian. We would have to take an additional step (such as adoption) to gaurantee that, or, if I didn't think any family members (or the state) would protest, I could write a will stating my preference. But, unless my husband were to formally adopt the kids, there is no certainty that the kids would remain with him.

I'm not sure it guarantees Bush's reelection just yet. Much depends upon whether Roy Moore decides to try to ride his wave of ofermod (to honor Tolkien) all the way to shore...or the White House, as the case may be.

You can think whatever you want. But if the constitution says equal protection for all law-abiding citizens, then you must give equal proection for all law-abiding citizens. It's pretty straight forward. Either you have a constitution you respect or you don't.

How is equal protection violated? You have the same rights to marry a woman as I do. You just don't want to. Which is your right.

But then you want to change the definition of marriage to suit your preferences, which may be to marry a man. This changes the historic definition of marriage and substitutes an absurd new definition. An asshole is not a vagina, a man is not a woman, and a marriage includes one of each kind of gender, not two of one kind or two of the other.

This is a radical re-writing of the understanding of marriage in our culture. It has nothing to do with equal protection.

I hope I am understanding this issue. I want gays to feel they are being supported by me and that their desires are important to me. I believe we are making strides to help them.

Years ago, they were in the closet and had to hide because of prejudice reactions they encountered.

I know that because of a large group of people I fell under and old laws that were believed to be what was best for all involved. As the years went by, I no longer could understand why the doors had to be shut. I too was in a closet of pain & suffering because of laws & prejudice.

Finding other people that were in my same closet then gave me courage to go forward. Finding others that felt as deeply as I did about the closed doors not available to me gave me a passion to work with the laws. Let me say it again, finding others in the closed doors gave me a passion to work with the laws. To bring about a change.

Those outdated laws, some of them were written by highly intelligent people. As I picked apart those laws and understood why they were passed, then I understood. I understood that it would take me & those suffering in those old laws, to go about changing them.

I believe that is the democratic process and like it or not, you have to get involved and set about to change it. Yelling & screaming & pushing & shoving our thoughts or our dreams of making changes would not have accomplished it.

I guess I am too peaceful in my attempts. I never did go out and do demonstrations to change the law, instead I read them and went about changing them. Demonstrations are legal & very much a part of us & at times in our history moved mountains. Others in my group did get very, very angry & our combined efforts set about change.

I think it was Brian up above who suggested that government confine itself to creating civil unions (including all the benefits now accruing to marriage, but available to gay or straight couples), and leave defining "marriage" to religious institutions. It could be stipulated that a couple religiously married had also, by that act, entered into a civil union. And that civil unions would need to be recognized by all states, not just the one in which they were issued.

The only difference between this and Federally-recognized gay marriage is the name. But the name makes a lot of difference to a lot of people. I find that people opposed to gay marriage don't want to keep gays from visiting their partners in hospital, or inheriting from one another, or even adopting children; they just don't want it called marriage. If we called all of it (at least, all the governmental part of it) "civil union," maybe everyone would calm down.

But there are people who do not want anyone to calm down. Mark Noonan hit it on the head in the very first comment:

The purpose of the gay marriage issue, in the minds of those most ardently pushing it, has much less to do with what gay people should be able to do than it has to do with sticking a rhetorical stick in the eye of those who feel differently about the issue.

When San Francisco decided to require that organizations with City contracts provide health benefits not only to the spouses of their workers, but also to domestic partners, the Catholic Church was in a bit of a bind; it had either to cover domestic partners or give up a lot of City-financed charitable work. What it did was to allow every full-time employee to name any person who shared the same dwelling as a beneficiary. It could be a spouse, or a gay partner, or a parent, or a roommate — anyone.

Needless to say, this pissed a lot of people off. It was more generous than the law; and yet it managed to keep the Church's contracts while not specifically recognizing domestic partnership as equivalent to marriage. Whereas the whole point had been either to humiliate the Church or to defund it.

I am more and more convinced that this is the way to go wrt gay marriage. Remove every injustice; remove every legal advantage of the straight couple over the gay couple. But call the result something else, and leave the name "marriage" for the religious sacrament.

Thirty-eight states, including California, have already passed Defense of Marriage acts. That's 76 %.

The Mass.Court ruling tells us they do not give a hoot about the truth of any national consensus.
Those who favor gay marriage should be over-joyed. So what exactly is the point of this post subject ? That the Court made an error in ruling in favor of the very thing gays want ?

Rosemary (the Q.O.A.E.!) is absolutely right about this. In a parallel fantasy universe: Wonderful, splendid decision. On the planet we actually live on: Disastrous decision. Terrible, stupid, ----ed-up timing. If those judges had wanted a Constitutional amendment banning all same-sex marriages _and_ civil unions _and_ domestic partnerships, federal, state, county, or municipal, they could have not possibly done more to get it going. (Unless some appeals court, like the infamous 9th Circuit, tries to strike down the DOMA -- _that_ will make it a fait accompli. Unsurpassable idiocy _that_ would be!)
Judges should not either:
1) hold their fingers to the wind like politicians, _OR_
2) live in a bubble totally removed from all reality! "The life of the law lies not in logic but in experience." -Justice Oliver Wendell Holmes
Anybody reading this knows by now where I stand on Lawrence and Garner vs. Texas (June 26, 2003). That was the Emancipation Proclamation. You know also, I presume, where I stand on Loving vs. Virginia (1967). The cold, hard, historical reality, however, is that, if Loving had followed right on the heels of the Emancipation Proclamation, we'd very likely be living under the rule of the Ku Klux Klan right now and the blacks would have been shipped back to Africa or worse. Timing is all-important.
(By the way, I think Clinton's timing on lifting the ban on homosexuals in the military was lousy, too. He should have waited until he had earned the respect of his Generals and the soldiers under them before doing it.)
In short, this is what I think of the timing of this decision and the mess it's going to create: !@#$%^&*()_+!!!! and: NYYYAAAAAAAARRRRGHHH!!!!

So then Steven, does that mean, the liberal Judges and Courts should only act not in any sense of "national consensus" but only when the leftist legal circles that the Justices move in, deem appropriate for the current cause they wish to promote ? It seems to me that if gay marriage was the cause they wished to promote they sure would not have ruled other than they did in Mass.

Dean,

What, in your opinion, is the role of a federal court?

Pardon me for saying so, but calling this "legislating from the bench" is the dumbest thing you and people who agree with you, have been saying. As you have quite frequently taken to saying about other people lately who dare disagree with you: You're dead wrong.

Like Rosemary said to me earlier:

The Judiciary's job is to strike down laws that are unconstitutional not mandate the creation of laws.

I know you probably want gays like me to sit down and shut up and let people like you tell me when I can be fucking treated fairly, but unfortunately, history has shown that I can't depend on you.

Your "judicial activism" argument has become tiresome. With you, as with everyone, the term only seems to apply when you disagree with the decision.

Personally I don't mind gays or any other group of people working through the democratic process to change the law. What I mind is when a court instead of respecting the process determines for other people how certain issues are.

It is not a matter of telling homosexuals to sit down or shut up. It’s a matter of respecting other people and allowing debate. How in the world do you expect to change anyone’s mind when your side’s techniques of persuasion consists primary of calling opponent bigots?

Go through the process. Convince the community, convince your Reps, and change the law through the legislature. Otherwise I have no respect for your position. If SSM proponents insist on using the courts to further social change, then your ensuring SSM will be the next Abortion.

Catch 22:

I have had it with this idiotic and mendacious "Homosexual or Pro-Homosexual = Leftist/Communist" smear. I'm not a Leftist and Dean Esmay is not a Leftist, and neither is Rosemary. Please take the time to read or re-read this post and the comments thereto:
http://www.deanesmay.com/archives/006182.html#006182

The Log Cabin Republicans, the Republican Unity Coalition, The Independent Gay Forum are none of them Leftist, and neither are or ever were any of the following individuals (the list is by no means exhaustive):
Andrew Sullivan, Camille Paglia, Eric Scheie, Jeff Soyer, Paul Varnell, Barry Goldwater, Gerald Ford, Ronald Reagan, Justice Harry Blackmun, Justice Anthony Kennedy, William Weld, Ingrid Barnes, Tammy Bruce, Norah Vincent, Dale Carpenter, Robert Bauman, Marvin Liebman, Rich Tafel, J. Edgar Hoover, Whittaker Chambers, General Edwin Anderson Walker.

"This is a radical re-writing of the understanding of marriage in our culture..."

Next you're going to say that Rock and Roll, Elvis and jeans were significant factors leading to the moral decay of our society. Society, culture, art, changes. Change is our constant companion. Just because you long for the "good old days" you can't automatically assume that today's society is morally inferior to the past, it is only different.

I don't know about the rest of you, but I'd take millions of gay couple in today's society over the societal acceptance of racial segregation and discrimination of the last century. Again, people who oppose same-sex marriage, for whatever reason, are akin to those that said the world was flat, cigarettes aren't harmful, pro-wrestling is real, and the earth is 10,000 years old. I'll even go a step further and say that opposition to same sex marriage is evil, evil, evil. By denying the basic civil rights of marriage to consenting adults, you are no better than the cops in Birmingham that sent attack dogs after blacks trying to register to vote or the people who stood by as the Nazis dragged off Jews in the middle of the night and did nothing. And you call yourselves Americans? What a joke.

Good thread Rosemary, glad you didn't blast me.

Steven,

You can certainly add my name to that list, although I don't really get what point you're making?!?! (or did I miss somethng further up?)

FRANK:

While we're at it, let's reverse Brown vs. Board of Education and get black kids out of white schools. Let's let the public go through the democratic process on that too. Because the majority wasn't too happy about that decision either.

Agreed?

If not, tell me why.

Tim,

Thank you.

Michael, I too want to see changes made for you & posted in your blog. So many laws are made to protect us and some laws are just wrong and hurt those involved.

I believe you are making great progress and people Are Listening. Oh, I do know we need to realize how much better this country can be if we just wake up to those doors shut for you. Time is a bitter pill to those in need of change right now.

Thousands, no I believe millions of people want what you do Michael.

Rosemary, this is an excellent post an excellent thread. It is your anger and sadness that bring about change. Your passion will bring forth a better understanding to this crisis our gay people are suffering. Ignorance is not bliss. Ignorance is just that, ignorance until some one like you & Dean show us where we are wrong.

I am a christian and I completely feel gay people are no better no less and deserve to attend churchs around this country with no judgement placed upon them. I know that is how Jesus would see this. I will get a backlash from that statement and I would say, You are wrong my friend if you can not believe this. Go out and preace the gospel. He did not say...only these people, or these people...Jesus loved everyone of us and still does.

Welcome to my world for you are loved just the way you are. Go forth and do not give into what seems to be a huge setback right now.

Since John Kusch hasn't shown up in this thread yet, I feel obligated to make one of his main points: if your objection to gay marriage is a redefinition of the word "marriage," then the cow's already out of the barn. There are already churches that marry gay people (horrors!). Lots of gay people who can't legally be married consider themselves married. That ship has sailed.

Even more importantly, civil marriage is nothing more than a legal contract that confers rights upon those entering into that contract. It shouldn't be called "marriage" at all, since that's a religious term. But it is. You deal with the hand you're dealt. And creating a "civil union" institution alongside civil marriage that's mostly but not completely the same as marriage is the definition of "separate and unequal." The state defined civil marriage and they have every ability to change that definition.

I am curious what Rosemary thinks of cases like the Dred Scott decision, and Brown v. Board of Education. Were those bad for the society? Were they worth the "backlash" in the service of equal rights for all citizens?

As for the purported "backlash," people like Mrs. du Toit seem just a *little* too ready for this backlash to begin, a *little* too eager to see the day when her "this far and no further" brethren rise up against their evil socialist oppressors. In the words of our President, bring it on.

And as for the "unforseen consequences" of allowing gay men and lesbians to marry their partners, I'd like just once for a gay marriage opponent to list for me some of those possible bad effects. Because if you can't even think of any, it must be pretty harmless to the teeming heterosexual masses.

Steven,

I used the word leftist and liberal only with respect to the other primary noun word I used, the liberal Courts. I certainly did not use the following words at all: Homosexual, Pro-Homosexual, or Communist. And I have not slammed nor flamed either Rosemary or Dean or anyone else on this post. I simply asked an intelligent question. If I am wrong about the Mass. Court being leftist or liberal, I apologize. And I am not sure that Whittaker Chambers is part of this discussion. I think his remains are in a pumpkin somewhere or maybe on microfilm. And, I have not proffered an opinion on gays nor gay marriage on any of these posts. I am trying to react to the judgement of the Mass. Court and what that judgement means with respect to this discussion.
I did ask that if the Mass. court is liberal minded with respect to gay marriage, would it not have been inappropriate for them to act
contrary to how they did ?

This wouldn't be such a big issue, really, if educated people like judges, with years of training and first-hand experience with the development and application of the law and the underpinnings of the Constitution, didn't rightly ascertain that there are things which cannot be justly legislated upon and that there are laws which violate basic human dignity and citizenship. If everyone would just wake up and realize that morality is a tribal construct, legislated by the will of the herd through the mouthpiece of representatives elected by majority -- in short, if everyone would just accept that human rights are up for community vote and that we're a Collectivist society in which the value of individuals is only measured by their value to and conformance with "society -- then this wouldn't be such a big deal, Rosemary.

Those of us who have been standing up for the dignity and citizenship of gay and lesbian persons for our entire natural lives understand something that you, perhaps, do not: The FMA would have been proposed whether we'd asked for marriage with hat in hand or with bloody fists in the air. How politely we ask for our porridge has no bearing on whether or not we get our porridge -- it merely determines with what level of graciousness our porridge will be denied us.

You're right, Rosemary. There is no middle ground. If you think the country needs to take baby steps to accept gay marriage, then your opinion of the populace is rather low. I merely think we need to take *steps*, and those steps are being taken. I'm not concerned with the backlash. It's the price we pay for fighting for our freedoms.

As for the judiciary "legislating", I think that you and those who think as you do have willfully chosen to disregard the Constitution. If the judiciary cannot throw out bad laws and hand down decisions on the proper scope of the legislature, then who can? It is the judiciary's role to *interpret* the Constitution, and interpret they have: Their Constitution forbids the denial of some citizens benefits that are afforded others, merely on the basis of gender. That simple.

Don't like it? Move to Ohio, where they've banned everything but the Marriage You Grew Up With.

Dean Esmay writes:

"You ask for something new, something that's very new and exotic and different and poorly understood, and you scream at them and you call them bigots and hatemongers and compare them to Fred Phelps and Jerry Falwell and tell them you're no better than the KKK or the people who killed Matthew Shepherd....

Then, do you feel self-righteous in your 'prediction' that 'bigoted America' finally says, 'FUCK YOU!' and strikes you down?"

Dear Dean:

Thanks for calling me an uppity nigger.

The backlash that you and Rosemary are cringing over won't really be the backlash whose possibility you and Rosemary are cringing over. We do appreciate the concern, but I've actually lived anti-gay bigotry in a very first-person day-to-day manner, and I feel more qualified to assess my own risk than you. While I live in a relatively liberal city, I work in one of the most conservative environments possible: Law Enforcement. I talk to people every day -- men and women in uniform who work to keep us safe -- who know I'm gay, and who know I have a long-term partner, and who know I want to get married.

They don't care, particularly.

Most of them are fine with the idea of me getting married, though they don't care enough to really do anything about it. The people who think it's wrong or at least distasteful don't really say anything, preferring to show their disapproval of homosexuality in the easiest way possible: Not being gay.

Mrs. du Toit has written about us being shoved back in boxcars for taking the fight for our "rights" too far. Again, she's calling us uppity niggers who don't know how to stay in their place.

Think I'm exaggerating? Let's parse her argument: "Don't be so loud about your agenda or they'll put you in boxcars." I could care less how well-meant her argument is -- to the ears of a self-respecting gay person, her words are poisonous.

How about this: What if we made it so plain that gay and lesbian Americans have found their place and earned their place and were not likely to give up their place without significant amounts of bloodshed? What if we made it so undeniably obvious that we weren't going down without taking many, many people with us? What if we earned enough respect that we could finally afford relax?

I've gotten there: I'm tough enough that even people who disagree with homosexuality respect me. That respect gives me enough room to interact with them like a normal person.

Other people are getting there, too. It's difficult. It's part of our daily lives, not yours.

Whoever "we" is. I don't know.

When you're under pressure, your brush really does get broad, Dean. It's unbecoming.

Regardless, all your cries for cooler heads and patience won't really matter in the end. There are people who would see this country burn to the ground before it legally embraced homosexuals. Those people aren't a majority -- they're just loud. And politicians pander to loud. That's how gay people made the gains they've made in the first place: volume and perseverence.

Could volume and perseverence be our undoing? I don't know, Dean, but I'm quite positive that you don't know either.

You guys seem like a nice couple. I just can't take you seriously on this issue.

The law is that which the Congress and the Executive decides what it is. Constitutionality is not the same thing.

John,

My view of the populace is realistic.

I'm not concerned with the backlash. It's the price we pay for fighting for our freedoms.

That is where we differ. I am concerned over the backlash. I'm frightened that the price is going too high. People that I love are going to be hurt if the backlash is passing the FMA.

Don't like it? Move to Ohio, where they've banned everything but the Marriage You Grew Up With.

Please spare me.

Your snarky wrath is wasted on me. You know damn well I fully support Gay Marriage. Fully and without restriction. I am actively campaigning against a proposed amendment to Michigan's constitution - right NOW.

Rosemary,

When you have a moment, would you view this entry? http://www.maybeithinktoomuch.com/archives/000009.php

I am not very familiar with the particulars of Brown vs. Board of Education. So I'm not going to attempt to argue for or against a decision I do not understand.

I for instance do no know if the decision was unpopular in just the South or across the country. I'm not sure if the democratic process even had a fair shake in this case. If I understand my civil rights history, wasn't this the era of Jim Crow and Voting tests to keep Blacks from voting? And if it was, then that case involved the disenfranchisement of an entire group.

This isn't the case in the current SSM debate. SSM advocates have exactly the same opportunities as their opponents to influence public opinion. So, why not try and convince them. I mean, if the polls are showing a trend toward acceptance of SSM then with a little persuasive effort it’s only a matter of time.

This is one of those "Hearts and Mind" questions. Do you want to simply redefine marriage, or do you want to convince others that redefining marriage is what should happen?

I don't know what Rosemary is getting so uppity about. Every news source I've read stated that this is a win for the same sex marrage advocates. And to be honest I haven't read the 81 posts aboove me because... there are 81 of them.

I am curious what Rosemary thinks of cases like the Dred Scott decision, and Brown v. Board of Education. Were those bad for the society? Were they worth the "backlash" in the service of equal rights for all citizens?

God almighty. You are suggesting that I am a bigot.

#1 I don't think gay marriage is bad for society.

#2 The backlash for the cases you cited was the passage of The Civil Rights Act of 1964.

#3 The backlash I'm concerned over right now, this minute, is the FMA.

That's okay. I'll be the bad guy if it makes you feel morally superior. Knock yourself out.

Michael Demmons:

Sorry for leaving you out. I've only pretty recently discovered your blog and I didn't think of you. I was trying to refute the canard that "the homosexual agenda" is being promoted by Leftists and Leftist judges, which was Scalia's demogogic argument against Lawrence & Garner vs. Texas, and which has been widely promoted among the anti-homosexual element of the Right. Scalia knows damn well that Justice Kennedy, who wrote the majority opinion in that noble decision, is a member of the conservative Federalist Society, since he, too, is a member, and both men were appointed by President Reagan, as was Justice Sandra Day O'Connor. I listed all those names because I'm tired of homosexuals, homosexuality, and the so-called "homosexual agenda" constantly being painted with the pink brush as a Leftist cause, which they have been since the 1950s. The Family Research Council, American Family Association, Santorum, etc., etc., constantly equate all homosexuals per se with ACT-UP, with NAMBLA, etc.. I just wanted to set the record straight.

Catch 22: I hope that answers your question. About your other question:
"I did ask that if the Mass. court is liberal minded with respect to gay marriage, would it not have been inappropriate for them to act
contrary to how they did ?"

The timing was completely inappropriate, insane, couldn't have been worse. Let me make the following analogy:
If you're driving a car from point A to point B, theoretically, the fastest way to get to your destination is to go in a straight line at the speed of light. In reality, you can't go that fast, there are all kinds of obstacles in the way (buildings, lamp-posts, other cars, pedestrians, eyc.), so you have to go a little slower and in a somewhat more roundabout way, stopping for lights, and such.
The political obstacle in this case is the aforementioned radical movement to change the Constitution in order to stigmatize and eventually eradicate homosexuality and homosexuals. Bush is afraid to that movement, but he is also afraid to alienate the better elements of his party. The realistic, smart, sane, thing for the Mass. Court to have done would have been to accept civil unions providing they do guarantee all the rights, protections, and responsibilities of marriage, or else to hold off on it until the political climate is less hostile, which would mean until Bush is safely re-elected and doesn't have to worry about appeasing his base base, or if he has a wide enough margin in the election to assure victory without appeasing that base base, or if a Democrat is elected or is about to be elected by a wide enough margin to be safe. That's the political reality, the political obstacle course, the judges should have taken into consideration.
By zipping headlong without any consideration of this grim reality, that Court, noble in its idealism but foolish in practice, ensured a smash-up, a political wreck, that we will take a long time getting out of. In insisting on marriage now, that Court made it all the more likely that we'll get an amendment to the Constitutions both of Massechusetts and of the U.S. which will mean no marriage ever, no civil unions, no nothing, and, if the radicals get their way, a return of "sodomy" laws, which you can bet will this time be enforced consistently. We are living in Weimar America.

Don Myers wrote:
"When the intellectually-bankrupt right screams that the courts are 'legislating,' what they mean is that the courts didn't rubberstamp their latest attempt to limit civil liberties, pollute the environment, screw the poor, execute the mentally retarted, or whatever they were trying to do at the time."

His comment was excellent right up until the last two or three points. The function of the courts is to _strike down_ laws that are un-Constitutional, that violate individual rights. All the rights in the Constitution boil down to one: the right to be let alone. The Bill of Rights (plus the 14th Amendment) spells out what government can _not_ do _to_ you -- not what it must or should do _for_ you.
Environmental protection is not in the Constitution and is therefore, if anything solely a matter for the legislative branch, preferably at the state or local level. Welfare for the poor is, Constitutionally, a matter also for the legislative branch at most, and should be left to the states, counties, cities, or private charity. Capital punishment is recognized as valid in the Constitution.
This is exactly what I was complaining of, package-dealing the issue of homosexual rights (which come down to the right to be left alone (privacy) and/or equal protection under the law) with a panoply of totally unrelated causes promoted by or associated with the Left. Many homosexuals disagree with one or more or all of those causes.
This whole thing is a disaster. Sorry to be so pessimistic, but that's the way I see it. I'm an idealist but I also have to be at least somewhat of a realist.

Rosemary:

I never suggested you are a bigot. But the point of your original post seemed to be that "legislating from the bench" hurts the cause, and isn't the way to go. So I was using civil rights cases as comparison. That's all. There are times in history when the bench is ahead of the populace. Movement has to come from somewhere.

I don't think you are a bigot, but the "backlash" argument is used by a lot of them, so it makes me nervous. I don't think you're the "bad guy" here. But your framing of the issue leaves the door open for a lot of bad guys to come streaming in.

I don't think you are a bigot
Okay. It's been a long day.

In this case, I believe it is going to hurt the cause. Bush issued a subtle threat to the courts during the SOTU.

He said that if the courts keep trying to pass laws - they would push to amend the constitution.

The SCOTUS would not be able to overturn an amendment - just interpret it.

I've read all 82 posts, and at this point, I'm pretty sure someone around here is utterly insane. But I don't remember whether it was me or other people.

John Kusch:
"How about this: What if we made it so plain that gay and lesbian Americans have found their place and earned their place and were not likely to give up their place without significant amounts of bloodshed?"

Cool. I'm in. When people are threatening to take away existing, recognized rights, it's time to bare your teeth.

But how about we also stop talking about everyone with reservations about gay marriage as if they were seconds away from having us all drawn and quartered? Given the state of gun laws, environmental legislation, the tax code, the public schools, the shape-shifting definition of public health, and the EEOC machine (just to reel off a few obvious examples), freedoms have been dangerously eroded for everyone in America except lobbyists and lawyers. Gay activists have had a decades-long opportunity to position our interests in the wider context, given the cultural changes of the last century, of personal rights and responsibilities for everyone in a freedom-loving society. But taken collectively, they haven't. They're too busy shilling for the DNC and sponsoring wank-a-rama workshops. So the way the gay marriage debate has been framed is basically in terms of whether you like gays and want to be nice to us, or you don't and don't. Not a good position to be in, but not entirely the fault of our opponents, either.

Sean:

One of my problems has been, no one seems willing to explain exactly what these "reservations" are. How exactly does gay marriage threaten marriage, or really anything, for that matter? What are the phantom bad effects that this policy will usher in? I keep asking this in gay marriage threads around the internet, and no one ever takes me up on it. It's hard to take someone's argument seriously when they have nothing to back it up with.

Adam:

Just so we're clear, I wasn't saying I agree that such concerns show conclusively that gay marriage is a bad idea, only that they have to be considered fair-mindedly and answered. The biggest one is related to making sure children are insulated, as much as possible, from suffering for the screw-ups of their elders. That means figuring out, when neither or only one member of a couple is a biological parent, how we establish custody in the case of divorce or death. As Mrs. du Toit pointed out above, the law hasn't entirely caught up even with changes in straight marriage patterns. I've spent plenty of time among people in my age cohort in which my family--my parents married and had me, in that order, have been together for 32 years, and live five miles from where they grew up--made me as exotic as if I were carrying a spear and had a bone through my nose. One might also note that if gays are adopting without marriage, keeping marriage exclusively hetero doesn't take care of the problem.

In fact, I would and do note these things when such arguments come up. A world in which an organization such as the Promise Keepers (see, we're the guys who are actually going to do what we vowed!) has a reason to exist does not strike me as one in which straights as a group are in a position to be getting all sanctimonious about how they live. But to my mind, that means that both straight and gay people should (in the moral sense, not the legal equality sense) be doing some hard thinking about whether we're all behaving as responsibly as possible, not that we should just figure everyone gets to behave equally badly.

My goodness, what a lively and interesting debate! I congratulate all here.

My thoughts:

The court is legislating; its telling the Massachusettes legislature that it must pass a certain law - it wouldn't matter if it was instructing the legislature to pass a law against murder; the courts have no business saying what laws to pass, they can only properly rule on whether an enacted law is properly constitutional.

There probably wont be much of a backlash on this, at this time: I expect the Massachusettes legislature will figure out some way to put this off till next year - kinda leave things in suspended animation. It will, however, bring the issue to the forefront of people's minds - and will give President Bush an exceptionally easy way to get the religious right fervently behind his re-election. This means that President Bush has 214 electoral votes entirely sewed up - only needs 56 more to be re-elected; makes President Bush the prohibitive favorite to win even if he runs a bad campaign and everything goes exactly right for the Democrats.

The long term effect of this will be the eventual dusting off of this item in the US Constitution:

"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make" - Article III, Section 2, paragraph 2

To cut the Gordian knot, score huge with the religous right and put entirely to bed the attempts at judicially enforcing gay marriage in the United States, Congress will pass, and the President will sign, some sort of legislation removing the US courts from appellate jurisdiction over any cases arising over the marriage statutes of the several States - in other words, even if you get the MA SC to allow you to marry, it does not mean you'll successfully be able to sue in Federal courts to get your marriage recognised by, say, Utah.

Rosemary, you couldn't be more wrong:

http://dubitoks.tripod.com/a-jan-04.html#stupidpeople

Hmmm.... I just read Andrew Sullivan's take on this. A little more optimistic. He observes that, by the time any of the Enemy, on either the Massachusetts state level or U.S. federal level, succeed in getting their amendment passed, homosexual couples will have already married (married!) in Massachusetts. This means that the Enemy will be put in the position of explicitly, forcibly breaking up marriages that already exist. They will be revealed as destroyers of marriage, not protectors, as advocates of _compulsory divorce_, they will be exposed as the radicals, the totalitarians, they really are.
A most interesting analysis. I must add that Andrew Sullivan was the first major figure to advocate homosexual marriage, years before it became such a central issue as it is today. And he is a conservative advocating it for conservative reasons, i.e., to encourage commitment, monogamy, fidelity, among homosexuals. The "in-your-face" ACT-UP/Queer Nation types had long opposed the idea of homosexual marriage because they are opposed to marriage itself. It's only lately that they've jumped on the bandwagon. They certainly can't take the credit for it. It's conservatives like Andrew Sullivan and Jonathan Rauch who are spearheading this.

"But the point of your original post seemed to be that "legislating from the bench" hurts the cause, and isn't the way to go. So I was using civil rights cases as comparison. That's all. There are times in history when the bench is ahead of the populace."

That may be true, but if so, civil rights are a horrible example. Before Congress acted in that arena, courts offered us Dred Scott. Even after Congress had acted, they gave us Plessy v. Ferguson (the "separate but equal" case), and took almost a century to correct itself.

"How exactly does gay marriage threaten marriage, or really anything, for that matter?"

The same way that large-scale counterfeiting threatens the value of everyone's money, not just those who end up with the bogus bills. Doing your own thing is fine. Redefining mine is not.

Jeez don't you folks ever sleep? Or do half of you live on the West Coast or in Alaska or something? :)

I woke up and checked this thread. Tim the Soldier responded way back when. Made a strange rock and roll argument. Said opposition to same sex marriage is evil. Uh huh.

OK, so marriage, which involves a bride and a groom, suddenly includes the absurdity of two brides or two grooms, explicitly separates the idea of marriage from procreation, and opposition to it is evil?

You compared opponents to Nazis (you lose the argument, Godwin's Law) and segregation. OK, bud. Back away from the keyboard. Have a beer. Go buy a clue somewhere, dude ...

"Godwin's Law" is a stupid law for people who don't want to learn from history or who want to repeat it.

"Jeez don't you folks ever sleep? Or do half of you live on the West Coast or in Alaska or something? :)"

Keep going....

Sean: Well, Hawaii, then I think the next place is Toyko ...

Xlrq, I like the counterfeiting argument.

SMA. the LWGLSA:

Godwin's Law is for people who realize that arguments get locked into set patterns, and that people have a tendency to anathematize those with whom they disagree.

It's also a subtle commentary folks' silliness. If you're not talking about building an authoritarian national socialist state around the cult of personality of a single leader, and if you're not talking about having a state agenda that includes conquest of your neighbors and slaughter of whole races of people, then you are not a Nazi. You really have to accept the whole agenda, or dissent only in lesser areas of the agenda. (For example, "I want to kill the Jews, but not all the Lithuanians," that sort of thing.)

The entire gay "marriage" debate in the U.S. is in an entirely different category of human affairs. It's not Pro-Nazi versus Anti-Nazi. It focuses largely on a series of core premises on which folks on different sides of the debate disagree.

It's not the logic. The logic on both sides usually flows pretty consistently from the premises (until folks go too far and Godwin's Law kicks in.) So Tim the Soldier starts out from a libertarian (I think) perspective and before you know it, comes up with anti-gay-marriage is anti-freedom, thus repression, thus evil.

Whereas I'd say that once your logic involves a hairy bearded guy in a white dress walking down the aisle and the state declaring this exactly the same as a woman in a white dress, you've got an absurdity and need to re-examine the premises because one of them is wrong.

You may call the recognition of this absurdity "bigotry" -- and that's the core of the pro-gay argument. Whereas I would argue that a society (or an individual) which cannot distinguish the difference between the hairy bearded guy in the white dress and the woman in the white dress simply has lost the ability to make meaningful distinctions.

And this is the core of my disagreement with gay "marriage." It's not that I care about what gays or marriage or even sodomy all that much; it's that once gay marriage is accepted, we will have slipped so far down the slope in terms of being able to make meaningful distinctions between things (that is, in terms of categorization) that our ability to debate anything will be hampered much more than it already is.

That is, gay "marriage" is debate-destroying.

You think Political Correctness is bad now? You think the coarsening of our culture has gotten bad? Wait 'til you see the oppression and depravity (and the inability to critize it) that will follow in the wake of gay "marriage".

Adam, is this what you were talking about?

IB Bill:
"Xlrq, I like the counterfeiting argument."

To coin a phrase, [ahem] NYAAAAAARGH! (Or, as we say in Tokyo, NYAAAALUGUFU!) That was an analogy, not a full-fledged argument. I'm not accusing anyone of being a bigot, pure and simple, you understand, only saying that merely characterizing gay marriage as being like counterfeit money doesn't make it so. Yes, anyone who denies that marriage has been fundamentally bound up with procreation wherever it exists is an ignoramus. However, it's also true that most large, organized cultures have rituals of passage into adulthood that we lack, and extended families still take more responsibility for the health and welfare of their members than they do in America. I doubt many homosexuals would be yanking as hard at the word marriage were it not for all the pressure that's on that one institution to serve so many functions beyond child-rearing in our society. I also have yet to see anyone explain why young straight adults who are aware of gay marriage will think, "Well, sure, we've only known each other for two weeks. But, you know, the lezzes down the street can do it, so why not us?" instead of just asserting that that's the case.

Sean,

Yep. The "counterfeiting argument" is not an argument; it is an analogy. I misspoke/miswrote.

So xlrq, I like the counterfeiting analogy. Better :)

Sean, you make some good points in the rest of your discussion.

The idea that all people deserve equal protection is meaningless without defining "protection".
Tax brackets promote inequality of protection. So do all laws which depend on where a person lives, or what he does. Homosexual marriage benefits discriminate against single people. As for instance, Mr. Demmons complaint that he could be shipped out of the country. What about people like him that by chance haven't found a partner they love? They can still be shipped out of the country, hetero or not. A lot of innocent people get screwed by various laws. It's a fact of life. (Almost) nobody says that this makes them unconstitutional.
So you can't just pop up and say people are being treated differently, so that's illegal. You have to demonstrate that the inequality is one of the inequalities which are unconstitutional. Maybe the MA constitution is obviously against this sort of thing. I dunno. But it might very well be a case where a bunch of judges say that they think it's bad, therefore it should not be a legal inequality, despite there being no hint of the topic in the constitution.
Sort of like SCOTUS, in the middle of a national debate on whether a fetus is a person (which any objective person should admit is a gray area) saying: hey, no problem, we've decided the answer according to the constitution is "no", without any real evidence.

disclosure: to the extent that I have any opinion at all, I am pro-abortion and believe that the state should not define who is married.

Hi.

Here it comes:
http://www.lifesite.net/ldn/2004/feb/04020401.html

"The Free Market Foundation, one of the groups at the meeting, reported that the leaders were informed that President Bush has now agreed to join in the effort to protect marriage by way of a federal amendment to the Constitution. He will make a formal statement of his position to support the amendment in the near future."

The American President told the judges he had a line, and what he might do if they crossed it. So of course they immediately called his bluff. And of course he wasn't kidding.

I hope other countries oppressed by interfering judges also find such strong leadership.

Of course, the judges may win. They have enormous prestige and potent allies. If they can break a democratic leader of the stature of George W. Bush, on a big issue like this, it will be a great victory for them. They'll be nearer to doing whatever they want throughout the Western world, without adequate review. And there will be other bad consequences, very severe consequences for the war on terror, for the pro-life cause, and so on.

I hope George W. Bush wins.

"How is equal protection violated? You have the same rights to marry a woman as I do. You just don't want to. Which is your right."

"But then you want to change the definition of marriage to suit your preferences, which may be to marry a man."

Societies evolve. Interracial marriage was once taboo. Marrying when you're a teeanger was once expected, and still is in some parts of the world.

"An asshole is not a vagina, a man is not a woman,"

Yea, I've noticed that. What's your point?

"...and a marriage includes one of each kind of gender, not two of one kind or two of the other."

Traditionally it has, yes.

"This is a radical re-writing of the understanding of marriage in our culture. It has nothing to do with equal protection."

It's radical only in it taking the formal step of officializing it. Society has changed a lot in the last 40 years. Heterosexual couples now live together much or all of their lives and have kids without getting married.

The main actual argument (ie: one that's not just 'it's tradition') against gay marriage is that the point of marriage is pro-creation. This is easily discreditable since a) gays can adopt and b) I know several straight couples who have no children and don't intended to. Do you propose to dissolve their marriages?

Get the state out of the marriage licensing business. Leave it to the churches and they can constitutionally discriminate against gays all they want.

So let's see. So far what we've got is

1. Gay marriage is like counterfeit money, and
2. Gay marriage is "a hairy bearded guy in a white dress walking down the aisle and the state declaring this exactly the same as a woman in a white dress."

Well I don't know about you, but I'm convinced.