Shot in the Dark

Long Past Easy Answers

So the other day on Twitter, I took the liberty of congratulating Lynn Cheney for “marrying” her partner.  I took the liberty of pointing out that Cheney, lesbian though she is, has a rare and glorious ability to shred through lefty chanting points.

A couple of  liberals on Twitter, smelling rhetorical trap, tried to turn that into an endorsement of gay marriage and/or a position on the Marriage Amendment this fall.

Naturally, I’m not falling for any of that.  The fact is, I’m personally, deeply ambivalent about gay marriage.  And about the Marriage Amendment that will be addressing the issue in Minnesota this fall.  And about marriage, regardless of the genders of the participants, for that matter.   One of the liberals accused me of “moving the goalposts”, as liberals always do when one introduces logical or moral nuance into an argument (remember – they’re the smart ones, and the only ones allowed to have nuance or observe gray area in their world views).

But notwithstanding the lefties’ attempt to back me into a rhetorical box of their making, which I brushed aside with ease and style (as always), it did start me thinking; it’s getting toward November.  I mean, it’s four months away.

And I’m still undecided about the Marriage Amendment.

As I’ve written in the past, the Marriage Amendment is…

  • On the one hand, a bad idea:  The libertarian in me bristles at the idea that the government should be telling people what to do in their personal lives.  Marriage is a contract; if two people have standing to sign a contract, why not?  Animals and children cant’ sign ’em, after all.
  • On the other hand, the Amendment is a great idea: It should bring out social conservatives to vote.  Look, I hate using peoples’ personal lives as grist for the political mill, but it’s the coin of the realm.  And the long-term survival of this country does in fact depend on the political extinction of the current version of “progressivism” and its vessel, the Democrat party.  If this issue is a milepost on the way to the extinction of the DFL, I’m all for it (although I think the Voter ID Amendment will be much more useful in that regard).
  • And on still a third hand, a good idea: because it’ll force gay marriage proponents to learn to actually debate an issue, rather than browbeat their opponents, which seems to be just about the only “debate” tactic any of them knows.

Because on the one hand, I believe government should stay out of peoples’ personal lives.

On the other, I believe “Marriage” is mostly a religious institution.

On the third hand, I find most of the arguments for gay marriage just as illogical as some of its proponents find “because Jesus said so”.  A quick sample, off the top of my head:

“Support Gay Marriage or we’ll thow things at you”:  This video clips is making the rounds; a young Marriage Amendment opponent tossing glitter at Amendment supporters at a demonstration outside General Mills:

He tosses glitter at old people, toddlers – and then has a hissy when people get mad at him.

And reading the comments to the video are enough to make you truly afraid for this nation’s future.  If the next great cultural war is fought on the fields on logic, ethics and fact, we’re screwed blue.

I’m not going to say “this is the best argument that gay marriage supporters can muster” – notwithstanding the fact that it’s the best a lot of Amendment supporters can muster, it’s clearly not a great argument.  But much of the Minnesota gay movement has tied itself to the glitter bomb as its primary positive case.

Color me unconvinced.

Still, the better ones have challenges as well.

“Civil Rights aren’t the subject for popularity contests”: Of course they are.  The government and media spent years demonizing people who supported the Second Amendment, in order to shave those rights back as far as they could.  And ask German-Americans about the popular laws enacted during World War I, or Japanese Americans during World War II.

“But those were mistakes”.  Sure.  But that’s a separate question.  We constantly subject rights, including rights purportedly enshrined in the Constitution, to popularity contests.

“You antis are hung up on a word”.  Well, sure – the idea that “marriage” is a religious institution, while “civil unions” are not.

But let’s be honest – everyone is hung up on a word.  Try this exercise with your favorite local gay marriage proponent – and by this, I mean the reasonable one, the one that can hold a civil argument (we’ll get to the others later):

YOU:  Allowing for the fact that no major faith group (outside some dissenting congregations here and there around the US) sanctions gay marriage, and none of them do so on theological grounds, what are your reasons for wanting gays to marry?

GAY MARRIAGE SUPPORTER (GMS):  So that gays have rights to visitation, so they can visit each other in the hospital and have power of attorney, inheritance, the various tax benefits, the ability to transfer custody of children in cases of death or disability, those sorts of things.

YOU: OK.  So it’s a legal thing.

GMS: “Yep”.

YOU:  OK.  So I propose that we adopt Civil Unions.  It’s a contract between two adults of majority, conferring every single one of the rights you mentioned and a few others you (well, OK, I) forgot, just like marriage.  Only it’s called a “Civil Union”.

GMS: That’s not OK.  People would view that as a second class institution.

YOU: But you yourself said this was about rights.  You’ll get every single right that a married mixed-gender couple gets.  Exactly the same resolution to every single situation under the law.  What’s the difference?

GMS: People will think Civil Unions have a lower status.

YOU:  Hm.  So a parallel institution that is exactly legally equal to straight marriage is not acceptable because…

GMS:  Because you are hung up on a word.

YOU: Gotcha.

“Because Marriage is about love!”:  I have to clamp off my own personal cynicism about marriage to answer this one.  But even being idealistic for a moment?  No, it’s not.  Ask anyone who got married for “love”.  “Love’ carries you through about the first two years, if you’re lucky.  After that it’s about a lot more than “love”.

Which is not to say that gay couples don’t have whatever that is.  Just that the “Marriage is love” chant is a stupid one even for straights.

Still, it’s better than this one:

“A Gay couple would be better than so many of the straight couples out there!”: Have you noticed how every gay couple that anyone ever refers to is Ozzie and Harriet these days?  And those Ozzy and, er, Ozzy couples always get compared to straight couples that are like Joan Crawford and whoever she was married to?

Gay marriage supporters have painted not so much gay marriage, but gays who want to marry, as just plain better human beings that all us nasty, angry…human straights.  It’s becoming a bit of a stereotype – the doting, impeccable, perfect gay couple, always a better option than…whatever the option was.

Which is every bit as debilitating a stereotype as some of those other gay stereotypes.

“Marriage is a right, and we don’t restrict rights”:  There are really two responses buried in there.

Of course we restrict rights.  My right to keep and bear arms, to pick one example – which is important enough to be spelled out in the Constitution, and incorporated onto the states by the  McDonald decision – is restricted in all sorts of ways; I have to show ID to buy ammo, much less a gun; felons can’t buy ’em, and on on, and so on.

And marriage?  Yep, restricted all over the place.  You can’t marry your first cousin – not even “for love”.  You can’t have several spouses – not “for love”, or even because your religion, Mormon or Muslim or Hefnerian, allows it.  Not even if first cousins or multiple spouses make better parents than your uptight old straight parents did.

But beyond that – is marriage a “right?”

The US Constitution doesn’t say anything – except by omission, in the Tenth Amendment, which reserves everything not covered in the Constitution (and thousands of tons of case law, naturally) to the States and People, unless the Supreme Court can find a penumbra enanating something else (see: “right” to murder the unborn – which should not be viewed as a right, btw; one persons rights can not infringe another person’s rights; abortion not only infringes the “Fetus’” right to life, in many cases it destroys whatever rights may be scattered in and among the father’s many, many legal obligations).  And the state of Minnesota defines marriage as a guy and a gal.  Which is fine – laws were made to be changed, if you have the political muscle to do it.  Go for it.

For most of human history, “marriage” has been about making, raising, securing the safety and maintenance of, and protection of children.  Which, at various times, meant that the infertile, the old and the otherwise child-“free” weren’t elegible.  In some parts of the world, “marriage” doesn’t happen until there was a baby on the way (including, until not that long ago, some parts of rural Holland).

Of course, that’s not how we’ve observed things for quite some time, with senior citizens and the “child-free” marrying, and with many, many more having children without bothering with marriage (or knowing each others’ names, in some cases) at all.

And so while “…because we’ve always done it this way” isn’t an especially satisfying answer for supporting the Marriage Amendment in and of itself, either are any of the arguments I’ve heard against it.

See the conundrum?

(Lefties on Twitter needn’t answer…)


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17 responses to “Long Past Easy Answers”

  1. bosshoss429 Avatar
    bosshoss429

    The gay people that I know would take that little miscreant and smack him. They are convinced that the radical element of the GLBT movement are setting their goals back every time one of these incidents occurs.

  2. Mitch Berg Avatar
    Mitch Berg

    Boss,

    That’s why I linked to this bit here, which is so good I’ll link to it again…

  3. Terry Avatar
    Terry

    For most of human history, “marriage” has been about making, raising, securing the safety and maintenance of, and protection of children. Which, at various times, meant that the infertile, the old and the otherwise child-”free” weren’t elegible. In some parts of the world, “marriage” doesn’t happen until there was a baby on the way (including, until not that long ago, some parts of rural Holland).

    I don’t think that this is right, Mitch. Marriage has been involved with citizenship since the time of the Attic Greeks.

  4. benjamindorsey Avatar
    benjamindorsey

    Marriage, as a legal institution, has certain sorts of restrictions, a number of which have honest policy justifications. The restriction on same-sex marriage, though, has no rational basis on which to stand from a policy standpoint. In other words, the State of Minnesota has no good reason to restrict marriage to being between the opposite sex. If there was a valid policy argument beyond tradition and the veiled enforcement of certain religious beliefs, then yes, there might be a rational basis in the restriction. A good policy argument showing demonstrable harm, to say, children, might be able to override the equal protection problem, but, no one could show that, because studies show that children raised by same-sex couples are no worse than the children of heterosexuals. “We’ve always done it this way” is not enough to override an equal protection claim, in my opinion, even under the rational basis test. This amendment would subject our state constitution to such a possible and rightful takedown by the Federal courts. Even if it’s passed, odds are it will be struck down at some point anyway. It’s not going to be permanent whatsoever. That’s my Constitutional take as a third-year law student. Another reason to oppose the amendment is that it could not be good for economic development. Passing the amendment, I believe, would reflect badly on our state and the mentality of the people therein. It’s no longer good for business to oppose same-sex marriage, and it would make Minnesota seem less appealing to employers.

  5. Terry Avatar
    Terry

    “That’s my Constitutional take as a third-year law student ”
    Don’t quit your day job, benjamindorsey.

  6. bosshoss429 Avatar
    bosshoss429

    Sorry Ben, but you are full of crap! What has and will continue to deter businesses from locating or even staying here is the anti-business climate of high taxes and unnecessary regulations that this state is afflicted with. GLBT issues have nothing to do with it. If they did, since this is an at will employment state, I maintain that many of them would be getting fired for their radical stance. If I owned a business, I wouldn’t want that crap in my workplace. Maybe after you have been out in the real world for a while, you might wise up to this. I doubt it though, since the legal profession has become so liberalized, rational social lawyers are few and far between.

  7. nate Avatar
    nate

    Ben’s right. That’s the problem we’re trying to solve.

    The Minnesota Constitution requires the government to treat people in similar situations with similar results (equal protection). One-man-one-woman marriage treates straight couples wanting to marry differently from gay couples. That would be permissible if there were a compelling reason, but sexual orientation isn’t enough. The Constitution trumps the statute so the court should find one-man-one-woman marriage to be unconstitutional under the Minnesota state Constitution. The same argument can be made by plural marriage advocates and with the increasing Muslim population, that day is coming, too.

    Which is EXACTLY why we need to to amend the Constitution to specifically define marriage as one-man-one-woman. That’s the only way to deny lawyers the option to force a fundamental change in the structure of society by judicial activism rather than by democratic persuasion. Otherwise, Minnesota will follow Massachussets and Iowa into judiciially-imposed gay marriage, like it or now.

    That’s my Constitutional take as a 23rd year attorney. Keep studying, Ben.

  8. bosshoss429 Avatar
    bosshoss429

    Mitch;

    I had not seen that, so thanks. Surprised that it was in the Onion though.

  9. Kermit Avatar
    Kermit

    Marriage is the union of one man and one woman. Period. I don’t care what you do, but you will never change this simple fact in my mind. And I stand adamant.

  10. Loren Avatar
    Loren

    3L Ben, what’s the economic impact been on the other 30 or so states that have passed an anti gay marriage amendment? How did your studies and research lead you to your conclusion? It is OK to show your work.

    Like Mitch, I am undecided about my vote. If we had an amendment to allow confabulation, defined as a relationship between two parties of legal age of the same sex which conferred the same rights, duties and responsibilities as marriage, I would probably vote for that.

    Until the current Supreme Court, word actually had meanings.

  11. SmithStCrx Avatar
    SmithStCrx

    Couple thoughts;
    Current law should pass constitutional tests because it does treat all people equally. Want to marry, fine. These are the restrictions, has to be opposite sex, can be close family, can’t have more than one spouse at ay time, etc.
    I got several gay family members. A couple have even gone through a religious Commitment Ceremony (not a wedding) & refer to each other as partner not husband.
    All that said, my compromise for years has been remove “Marriage” from civil law and go to “Civil Unions” for everyone. Removes any separate but equal complaints. Then allow any nongovernmental organization to marry whomever it chooses.

  12. swiftee Avatar
    swiftee

    I’ll leave the law talkin’ to the law talkers. What I noticed was the glitter that little jagoff was applying was being sprayed.

    What would be the result of a cloud of glitter, being propelled by pressurized gas impacting a fragile eye?

    How could the little jagoff prove that the glitter the ER docs removed from your eye didn’t come from his can as opposed to say, slyly and gently applied by hand?

    At this point, I invite law talkers to jump right in.

  13. K-Rod Avatar

    I’m not a Burbot. But The fact remains: whether you are homo or hetero, we all have the same rights. Period.

    If you can’t provide a difference then STFU.

    Game. Set. Match.

    In your heart you know I am right.

  14. benjamindorsey Avatar
    benjamindorsey

    Oh, glittering is technically assault. It’s also juvenile. I’m not about to defend that.

  15. benjamindorsey Avatar
    benjamindorsey

    Well Nate, we agree in part and disagree in part. My analysis was based on a hypothetical Federal, not a state case. I believe that plural marriage raises legal and ethical issues that would likely preclude it from equal protection or due process analysis.

    I don’t believe that the judiciary “imposes” liberty by simply acknowledging an equal protection right, which is a good reason to oppose the amendment. I think restrictions can be imposed, but not rights.

    And of course, I’ll keep studying. One more year and then the bar, I don’t have much choice!

  16. K-Rod Avatar

    Whether you are homo or hetero, we all have the same opportunity to make good or poor choices…

    Heh heh heh

  17. Scott Hughes Avatar
    Scott Hughes

    What would be the result of a cloud of glitter, being propelled by pressurized gas impacting a fragile eye?

    Someone threw glitter into my eyes, and being visionless I couldn’t help it when I (accidently) smashed my forehead into the punks nose.

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