August 07, 2010


Rich Lowry's take on it over at NRO is here. Reasonable people may reasonably differ on the merits of gay marriage. (My personal view is it is a contradiction in terms.) The merits of the constitutional challenges are weak. Marriage at common law is between one man and one woman at one time and was certainly so in the West and in the new thirteen states at the time of the ratification of the Constitution. The rational basis for continuing to recognize traditional marriage to the exclusion of any other is it encourages the continuation of the most successful mechanism over the ages for organizing stable families, the building block of civilizaton since the dawn of time. The equal protection challenge fails because nothing prevents gay people from marrying a member of the opposite sex who is of age, not otherwise married, and not within a forbidden degree of kinship. That gay people would rather not marry the opposite sex is too bad--rarely in life do we always get what we want. Had the case gone the other way, there is nothing preventing gay couples from loving who they want, living with whomever they want, and accomplishing most, if not nearly all of the material and practical incidents of marriage by simple contract. What the plaintiffs really want is society's affirmation of their lifestyle choices.

No matter how the case winds up, traditional marriage in the United States will continue. The larger impact of Walker's decision is to point out the dangers of federal judges bent on imposing policy choices cloaked as constitutional rulings. I clerked for two outstanding federal trial judges and was regularly in the federal courts for sixteen years before leaving private practice. I have a deep and hearfelt appreciation for the role they play in our society. Nevertheless, I am mindful that the power of the federal judiciary is staggering, especially in matters of constitutional adjudication; in its rawest form it can be the exercise of governmental power largely insulated and unchecked by democractic governance. The importance of judicial philosophy cannot be understated because it is the biggest day to day limit on the application of judicial power. The importance of a judge's fidelity to judicial doctrines developed to limit judicial power such as original intent, standing, ripeness, mootness, political question, and stare decisis cannot be understated.

The question of gay marriage is not a legal question so much as a political one and it is through the political process that Chief Justice Rehnquist observed: "The People, through their elected representatives, deal with matters which concern them."

If federal judges are going to impose political and policy decisions on us willy-nilly, then it is time to end life tenure, appoint judges for fixed terms in office, or elect them.

Posted by LMC at August 7, 2010 08:26 AM | TrackBack

You know in what high esteem I hold you, dearest LMC, but really with the 'one man, one woman=stable family building block" argument? Really? That makes one very large assumption: that the sole purpose of marriage is reproduction. While the Catholic Church holds that view, there is no mandatory requirement in civil marriage that people actually reproduce, or even be physically able to reproduce. By your logic, well, I shouldn't be allowed to be married, because I can't have kids. If you say, "well, Kathy, of course you should be allowed to be married, you're hetero," your argument starts the slide down the slope, doesn't it?

I am all for gays and lesbians being able to get married at City Hall. Do I think that a church should be forced to perform gay and lesbian marriages? No. Do I think that the GLBT community is going about this issue the right way, by forcing it through the courts? Hells bells no. But do I think that a committed gay or lesbian couple should be allowed to receive all the benefits of civil marriage? Yes, absolutely. There's no difference in my mind.

Good friends of mine are a lesbian couple, and they spent THOUSANDS of dollars in legal fees, making sure all the i's were dotted and the t's were crossed. The husband and I didn't have to do that---we were automatically each others' next of kin, we could make decisions for one another in the case of incapacitation, we received each others' property, etc. Yet, we can't have kids. Technically speaking, our lesbian friends are the better couple because they're raising THREE kids. The husband and I have zero. They're AWESOME parents, too. Yet, the husband and I automatically get all sorts of 'rights' because we're straight? Really, it makes no sense in the broader scheme of things.

It takes TWO people to raise children in a stable environment. It doesn't take three or four. And it doesn't matter if they're two women, two men or a man and a woman. If marriage and families need to be 'defended' it makes sense that there should be a valid threat, doesn't it? In my humble opinion, gays and lesbians aren't the threat to marriage---it's the dumbass heteros who get married and ditch that commitment (and the children who come with it) as soon as they can. If our goal is to defend the institution of marriage, then perhaps we should aim correctly at the actual threat---divorce.

Posted by: Kathy at August 8, 2010 01:13 AM

"The rational basis for continuing to recognize traditional marriage to the exclusion of any other is it encourages the continuation of the most successful mechanism over the ages for organizing stable families, the building block of civilizaton since the dawn of time. "

I'm wondering if it's not just an attempt to break our bonds with traditional marriage for the general population the way that our progressive bretheren did, in the '60s, to the urban black families.

As for Kathy's concern, I agreee that people shouldn't have to go through thousands of dollars of legal fees to establish their relationships. But I also don't feel that these civil unions should have to be based on a sexual relationship. Why can't I share my life/possessions/whatever with a close, dear friend (of whatever sex) without a prerequisite that we have a sexual relationship.

Leave Marriage in the churches.

Let Civil Unions (without a having-sex requirement) be established at the state level.

Posted by: Dan at August 8, 2010 09:44 AM

Kathy, your points are all well-made, especially that hetros are doing a great job of diminishing marriage as an institution all by themselves. My point is that the mechanism through which the issue should be thrashed out is not the courts but the legislative and executive branches who are accountable to people who are the source of sovereignty. Policy decisions about when and if to redefine marriage (or for that matter, a host of social concerns such as when life begins and ends) are best left to the collective wisdom of the people, not unelected lawyers on the bench.

Posted by: LMC at August 8, 2010 04:21 PM

I guess my manufacturing background informs my decision on this, particularly the engineering concept called "mating parts." If two parts aren't specifically designed to accomodate each other, then failure must, of necessity, follow.

Posted by: BackwardsBoy at August 9, 2010 12:51 PM
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