Rauch on Cultural Federalism

Back in April, Jonathan Rauch took on the subject of federalism and "hot button" social issues and also came to the Giuliani/Brownstein view that federalism makes these debates less contentious. Rather than argue a priori, Rauch contrasts the debate over abortion with the debate over gay marriage:

The result is a diversity of practice that mirrors the diversity of opinion. And gay marriage, not incidentally, is moving out of the realm of protest politics and into the realm of normal politics; in the 2006 elections, the issue was distinctly less inflammatory than two years earlier. It is also moving out of the courts. According to Carrie Evans, the state legislative director of the Human Rights Campaign (a gay-rights organization), most gay-marriage litigation has already passed through the judicial pipeline; only four states have cases under way, and few other plausible venues remain. “It’s all going to shift to the state legislatures,” she says. “The state and national groups will have to go there."

For one thing, Rauch's trend data here isn't particularly solid. Yes, gay marriage played less of a role in 2006 than it did in 2004, but that trend may not continue. The abortion debate has continued to be contentious for decades, but it has ebbed and flowed somewhat. But more to the point, insofar as Rauch is correctly identifying the dynamics of the issue here, I think there's a more plausible explanation -- the main arguments against gay marriage are actually factually disproven by increasing acceptance of gay partnerships. The dawn of gay marriage in Massachusetts and of civil unions in Vermont has not, in fact, led to the collapse of heterosexual marriage throughout New England.

The legalization of abortion, by contrast, actually has been associated with an increase in the number of abortions. If you believe that abortion is a serious moral wrong, there's nothing about seeing some jurisdictions legalize abortion that would make one rethink that. If, by contrast, you think that legal recognition of gay partnerships spells big trouble for family life, then looking at places where some of it exists will dispel those worries. One should also note that opposition to gay equality measures is highly generational in nature and is pretty clearly grounded in irrational prejudice rather than deeply felt philosophical disagreement.

Comments

I also wonder about this contention that the debate has moved out of the courts. Here in Michigan, the Court of Appeals (one notch below the State Supreme Court) has decided two major cases relating to the 2004 ballot measure recently, and one of those cases has been taken up by the State Supreme Court with a decision expected in the next six months or so. My understanding is that there are a couple more cases headed for the Court of Appeals this year.

Posted by dr | July 25, 2007 11:38 AM

opposition to gay equality measures is highly generational in nature and is pretty clearly grounded in irrational prejudice

Nice. Not enough liberals say this.

Posted by Ryan | July 25, 2007 11:41 AM

" One should also note that opposition to gay equality measures . . . is pretty clearly grounded in irrational prejudice rather than deeply felt philosophical disagreement."

Depends on whether you believe that a religious conviction (e.g. homosexual activity is a sin) is "deeply felt philosoph[y]" or simply "irrational."

I vote for "irrational." This viewpoint, when applied to other debates (such as evolution, contraception, abortion, political Islam, etc. etc.), explains many things. It is hard to debate someone who is literally irrational.

Posted by SGEW | July 25, 2007 11:47 AM

There is an element of truth to this, inamuch as opposition to abortion is a more defensible position than opposition to gay equality. But you're overstating it. Although conservatives couch their opposition to gay marriage in terms of its pragmatic effect on marriage generally, they're lying. They really think gay marriage (and homosexuality in general) is flat immoral in the same way they think abortion is flat immoral. The local, democratic approach to gay rights has been effective by persuading people from the ground up that the their moral judgment is flawed and that gays are people too. If you think a top down, federally determined or judicially mandated approach would've been as successful you need to try to prove it.

Opposition to abortion TODAY may be a more strongly held and more philosphically rigorous position than homophobia, but it's not obvious to me that was the case in the early 70's. Isn't it possible that the movement was galvanized and arguments honed by resentment against what was perceived as judicial overreaching? Not a rhetorical question. I'm open to being persuaded.

Posted by Led | July 25, 2007 11:51 AM

One should also note that opposition to gay equality measures is highly generational in nature and is pretty clearly grounded in irrational prejudice rather than deeply felt philosophical disagreement.

Let's hear from the irrationally prejudiced, then - this is from 2004 but thirty seconds with Google did not reveal to me a change of heart:

Bishop Gilbert A. Thompson Sr., who as pastor of New Covenant Christian Church in Mattapan heads the largest Protestant congregation in Massachusetts, said black ministers have many reasons for speaking out against gay marriage.

"We're weighing in on this because we're concerned with the epidemic rate of fatherlessness in America and in our community, and we don't think gay marriage helps that cause," he said.

Posted by Tom Maguire | July 25, 2007 12:15 PM

The quote from that pastor makes so little sense, I can't tell if Maguire is quoting it to refute MY's argument, or to support it.

Posted by kth | July 25, 2007 12:25 PM

The quote from that pastor makes so little sense, I can't tell if Maguire is quoting it to refute MY's argument, or to support it.
Posted by kth

Heh, in that case, I'd say it supports MY's argument whether Maguire intended to or not.

Posted by Cyrus | July 25, 2007 12:40 PM

Re: Yes, gay marriage played less of a role in 2006 than it did in 2004, but that trend may not continue.

I suspect it will continue if only because of a logistical issue: quite a few states have already enacted their own DOMAs and hence the issue is out of play in those states.

Re: Although conservatives couch their opposition to gay marriage in terms of its pragmatic effect on marriage generally, they're lying.

Lying or not, they've chosen to make their stand on that ground and if they fail there (as I suspect they will) they will go down to defeat.

Posted by JonF | July 25, 2007 12:41 PM

"The legalization of abortion, by contrast, actually has been associated with an increase in the number of abortions."

My understanding is that there were likely more abortions before Roe v. Wade, but they were 1) illegal and 2) dangerous, so they were not specifically measured and often lead to death.

"Lying or not, they've chosen to make their stand on that ground and if they fail there (as I suspect they will) they will go down to defeat."

How many contradictory arguments did Bush make to go to war with Iraq? Wasn't it like 22? We have to be ready for the Republicans homophobic attacks to morph over time to react to our arguments.

And Maguire, here's a black pastor who thinks your guy is full of shit. Make of it what you will:

http://www.youtube.com/watch?v=Q6iYliBayh4

Posted by Reality Man | July 25, 2007 12:52 PM

The first thing one wants to mention is why ?? (in the name of Josephus) would anyone believe these newly-minted, erstwhile, temporary, federalists" ???

No- they will nationalize this question first chance they get - when SCOTUS seems amiable. Having deep interest in this debate, I have yet to see the rise of a principled federalism outside the confines of a temporary "solidify our gains" approach.

"One should also note that opposition to gay equality measures is highly generational in nature and is pretty clearly grounded in irrational prejudice rather than deeply felt philosophical disagreement."

Well, if that’s the case...then SCOTUS ought- immediately wipe out this "irational prejudice" in the name of equality and reasoned law.

(wouldn’t you think)

Or – is this guy is onto something???

"Marriage is neither a conservative nor a liberal issue; it is a universal human institution, guaranteeing children fathers, and pointing men and women toward a special kind of socially as well as personally fruitful sexual relationship. Gay marriage is the final step down a long road America has already traveled toward deinstitutionalizing, denuding and privatizing marriage. It would set in legal stone some of the most destructive ideas of the sexual revolution: There are no differences between men and women that matter, marriage has nothing to do with procreation, children do not really need mothers and fathers, the diverse family forms adults choose are all equally good for children. What happens in my heart is that I know the difference. Don't confuse my people, who have been the victims of deliberate family destruction, by giving them another definition of marriage."

Walter Fauntroy-Former DC Delegate to CongressFounding member of the Congressional Black Caucus, Coordinator for Martin Luther King, Jr.'s march on Washington DC - (& irrational bigot?)

Posted by Fitz | July 25, 2007 1:07 PM

Walter Fauntroy-Former DC Delegate to CongressFounding member of the Congressional Black Caucus, Coordinator for Martin Luther King, Jr.'s march on Washington DC - (& irrational bigot?)

Presumably not an irrational bigot on racial issues. Perhaps an irrational bigot on issues of sexuality. This

What happens in my heart is that I know the difference

sounds nice and is worth nothing. In my heart I know Mr. Fauntroy is wrong about, oh, everything in the quoted passage. He may not *conceive* of himself as an irrational bigot (but I presume few bigots do), and I'm willing to presume that he honestly doesn't harbor consciously negative attitudes towards gay people, but his argument is all about his opinions and how he feels; it reflects shallow historical knowledge, poor logic, and no hard facts. All that holds it together is his intuitive perspective, the way he feels, and the consequence of the way he feels is that he's fine advocating discrimination.

Posted by Quarterican | July 25, 2007 1:22 PM

Quarterican (writes)

but his argument is all about his opinions and how he feels; it reflects shallow historical knowledge, poor logic, and no hard facts. All that holds it together is his intuitive perspective,

Now...what part of this is "poor logic" - or not "hard fact",

"It would set in legal stone some of the most destructive ideas of the sexual revolution: There are no differences between men and women that matter, marriage has nothing to do with procreation, children do not really need mothers and fathers, the diverse family forms adults choose are all equally good for children."

Its very much within the tactics of the left (& necessary to judicial mandate of same-sex "marriage") to simply dismiss ones adversaries as "irrational & bigoted" - This approach both scares moderates into embracing the change & refutes the necessity to offer a counter argument. (or even engage your adversaries in debate)

The homosexual movement affirms that gender is a deeply important human category. Sexual orientation as a concept presumes that gender exists and is an important category for human relationships. It would be odd to presume that gender is all important to adult romantic relationships, yet retains no significance beyond that. (for society, child rearing, & in law)

If those who are deeply concerned with the ability of the institution of marriage to maintain its normative force of bringing men & women together and insuring that children are raised by their natural mother & father in a stable marriage….then we “irrational bigots” have plenty of company.

Note this quote rebuke of same-sex “marriage” offered by the plurality in Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Loving.

“[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind.”

The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.

As dismissals of the marriage is discrimination argument goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually an analogy that doesn’t hold up precisely because it is not the same kind of things being compared.

"We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. . . .

“First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.”

“There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule -- some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes”

Hernandez v. New York

Posted by Fitz | July 25, 2007 1:50 PM

Do you think that gay people in a relationship are better off married or not married, Fitz?

Posted by Nobody Important | July 25, 2007 2:14 PM

Both of the reasons cited in Hernandez v. New York are fig leaves to cover the true nature of the laws irrational bigotry. Since no one is proposing laws to require heterosexuals to marry and bear children, to restrict marriage to only those who can have children (i.e. non-sterile, pre-menopausal) or to restrict their ability to end their marriages even if they have children then their justifications fall apart and end up as "we don't want gay people to marry just because".

Posted by Col Bat Guano | July 25, 2007 2:30 PM

1. ""The legalization of abortion, by contrast, actually has been associated with an increase in the number of abortions."

My understanding is that there were likely more abortions before Roe v. Wade, but they were 1) illegal and 2) dangerous, so they were not specifically measured and often lead to death."

Absolutely! Honestly, I'm a little disturbed that Yglesias has been duped here -- there is no reason to think there is a significant difference in the number of abortive procedures performed pre and post-Roe (correlative note - teenage pregnancy rates declined throughout the 90s). Accurate figures on pre-Roe abortions and abortifacient use in abortion-illegal States are impossible to obtain.

The significant change we can note is that the number of women dying from uterine blood hemorrhaging dramatically decreased post-Roe.

2. Fitz - Those arguments, though grounded in numerous Court and Media restatements, don't hold up to serious intellectual scrutiny. If the reason marriage must be restricted to "one man and one woman" is because the State desires children to be raised by the biological male and female parents united in marriage:

A. Why are infertile or post-menopausal Women able to marry or re-marry?

B. Why are infertile Men able to marry or re-marry?

Explain how the State's desire for the "welfare of children" (from opinion) is aided by the marriage of heterosexual couples with no potential to bear children.

Explain how stable heterosexual couples with no potential to bear and no desire to raise children assist the "welfare of children" through Marriage, but Marriage of a stable Gay couple who desire to raise children would not assist the "welfare of children."

(Note - understanding that the N.Y. Court is arguing what the N.Y. Legislature might plausibly and constitutionally have determined or might believe, not what it had determined or did believe)

Posted by Miguel Pakalns | July 25, 2007 2:49 PM

My god, that Hernandez ruling is idiotic.

The first "rational" basis assumes that promoting stable relationships is a zero-sum game -- if you stabilize gay relationships you can't stabilize straight ones.

And how does the second basis work -- make gay people enter straight marriages so that their kids will have parents of each sex on hand? Yep, that's worked so well up to now.

Fitz, if this is the best you've got....

Posted by AlanC9 | July 25, 2007 3:02 PM

Opposition to gay marriage is indeed irrational bigotry.

Opposition to plural marriage is also irrational bigotry.

Opposition to bestiality is also irrational bigotry.

Posted by Al | July 25, 2007 3:43 PM

Col Bat Guano (writes)
"Both of the reasons cited in Hernandez v. New York are fig leaves to cover the true nature of the laws irrational bigotry."

To say something is NOT based in "irrational bigotry" is not to say "our opinion is so perfectly applied and convincing that it will persuade every last American.

Its simply to say its rationally based and not bigoted.

In Recent Supreme Court ruling on same-sex “marriage” courts do specifically reject the most egregious illogical conclusion of Goodridge,(A 4 to 3{irrational bigots??}) that procreation is some kind of bad faith post-hoc invented reasoning to hide the “real” reason marriage is a husband-wife institution.

From the Washington State Decision

Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)

“But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.”

Miguel Pakalns (writes)

"Those arguments, though grounded in numerous Court and Media restatements, don't hold up to serious intellectual scrutiny (??!!?). If the reason marriage must be restricted to "one man and one woman" is because the State desires children to be raised by the biological male and female parents united in marriage:

A. Why are infertile or post-menopausal Women able to marry or re-marry?

B. Why are infertile Men able to marry or re-marry?

Explain how the State's desire for the "welfare of children" (from opinion) is aided by the marriage of heterosexual couples with no potential to bear children.

Explain how stable heterosexual couples with no potential to bear and no desire to raise children assist the "welfare of children" through Marriage, but Marriage of a stable Gay couple who desire to raise children would not assist the "welfare of children."

"Constitutionally protected fundamental rights need not be defined so broadly that they will inevitably be exercised by everyone. For example, although the ability to make personal decisions regarding child rearing and education has been recognized as a fundamental right (see, e.g., Pierce v. Society of the Sisters (1925) 268 U.S. 510, 534- 535), this right is irrelevant to people who do not have children. Yet, everyone who has children enjoys this fundamental right to control their upbringing. A similar analogy applies in the case of marriage. Everyone has a fundamental right to “marriage,” but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings." 1

1- In re Marriage Cases, Cal. App. 2006, McGuiness, P. J. (writing for the majority.)

Posted by Fitz | July 25, 2007 7:23 PM

"The legalization of abortion, by contrast, actually has been associated with an increase in the number of abortions."

Really? Prove it.

This is a very hard claim to prove. When abortion was illegal, there were a *lot* of illegal abortions. However, obviously people were going to hide the fact that they'd performed an illegal activity (abortion). It's more likely that legalization didn't significantly change the rate of abortions, but now everyone knows about them, and before they were mostly done in secret.

Plus which there's a confounding factor. Contraception was generally legalized (or, at any rate, education about it and selling it was legalized) very shortly before abortion was legalized. Greater access to contraception is *known* to reduce abortion rates by reducing pregnancy rates.

Because of that, I strongly suspect that abortion rates have gone down since abortion was legalized; if I'm wrong, please show statistics, and remember that the statistics are just trying to *guess* the illegal abortion rate before legalization.

Posted by Nathanael Nerode | July 25, 2007 11:15 PM

One of the issues surrounding the homosexual 'marriage' issue, is why other groups such as polygamists will not be able to drink from the liberal cup as well.
Any argument that should allow homosexuals to 'marry' would also be inclusive to these other groups, *EXCEPT* that the liberals will hold the number to 2 people effectively opening the door, just enough, to allow their chosen group du jour in the club while showing their bigotry to the rest.

It's a dirty, dirty deed.

Posted by Fred Jones | July 26, 2007 8:49 AM

Everyone has a fundamental right to “marriage,” but, because of how this institution has been defined, this means only that everyone has a fundamental right to enter a public union with an opposite-sex partner. That such a right is irrelevant to a lesbian or gay person does not mean the definition of the fundamental right can be expanded by the judicial branch beyond its traditional moorings."

This strikes me as an excellent circular argument and not particularly rational. "Because we have denied gays and lesbians these rights before we have to keep denying them now." There is no analysis of why these rights have been assigned to only heterosexuals because of course it comes down to irrational bigotry. Just calling something "rational" doesn't make it so.

Posted by Col Bat Guano | July 26, 2007 10:17 AM

Col Bat Guano (writes)
"This strikes me as an excellent circular argument and not particularly rational. "Because we have denied gays and lesbians these rights before we have to keep denying them now." There is no analysis of why these rights have been assigned to only heterosexuals because of course it comes down to irrational bigotry. Just calling something "rational" doesn't make it so."

Brilliant! Except that court, SCOTUS, the New York court and multiple other courts have indeed provided the analysis that denies your vapid claim that this is "irrational bigotry.". (I have even provided the quotes and answered your querry concerning childlessness & infertile opposite sex couples)

"Because we have denied gays and lesbians these rights before we have to keep denying them now."

No one has made this argument. The argument is it is NOT irrational bigotry (as you maintain) to continue to define the institution of marriage as we have in the past.

"This strikes me as an excellent circular argument and not particularly rational."

I'm afraid not - The California Court as well as the Goodridge dissent itself notes pointedly, that it is advocates opf same-sex "marriage" who are engaging in the tautology.

As Justice Cordy wrote in dissent, the majority in Goodridge had maintained cirular logic when it

"only by assuming that 'marriage' includes the union of two persons of the same sex does the court conclude that restricting marriage to opposite-sex couples infringes on the 'right' of same-sex couples to 'marry'.” 2

“transmuted the "right" to marry into a right to change the institution of marriage itself.” 2

"[i]n context, all of these decisions and their discussions are about the 'fundamental' nature of the institution of marriage as it has existed and been understood in this country, not as the court has redefined it today.” 3

"Maintaining that marriage's - “'fundamental' nature is derivative of the nature of the interests that underlie or are associated with it” -and that an - “examination of those interests reveals that they are either not shared by same-sex couples or not implicated by the marriage statutes.” 4

1,2,3,4, - Goodridge v. Dept. of Pub. Health,798 N.E.2d 941, 955 (Mass 2003)
(Justice Cordy dissenting)

Posted by Fitz | July 26, 2007 11:26 AM

Fitz,
All of the arguments you site come down to the basic fact that "traditional marriage is defined as one man and one woman" so that is how is must always be. The rational basis for why that is the "tradition" is never examined because it based on irrational bigotry against homosexuality. Denying gays and lesbians the right to marry in no way enhances heterosexual marriages or their ability to raise children.

Posted by Col Bat Guano | July 26, 2007 12:58 PM

Col Bat Guano

As you said...

"Just calling something "rational" doesn't make it so."

And just calling something "irrational bigotry" dosent make it so!!

And neither does a bland assertion of- "Denying gays and lesbians the right to marry in no way enhances heterosexual marriages or their ability to raise children."

Are all these arguments "irrational bigotry"

http://defendmarriageresources.blogspot.com/

And are all these fellow citizens simply hate gay people?

57-43 = Oregon
59-41 = Michigan
62-38 = California
62-38 = Ohio
66-34 = Utah
67-33 = Montana
71-29 = Kansas
71-29 = Missouri
73-27 = North Dakota
75-25 = Arkansas
75-25 = Kentucky
76-24 = Georgia
76-24 = Oklahoma
78-22 = Louisiana
86-14 = Mississippi
56-44 = Colorado
63–37 = Idaho
74-26 = South Carolina
52-49 = South Dakota
82-19 = Tennessee
57-43 = Virginia
60-40 = Wisconsin

Posted by Fitz | July 26, 2007 1:06 PM

Sorry, I don't buy the arguments and yes those citizens are suffering from irrational bigotry. All of the arguments again boil down to "Marriage has always been this way so it must remain this way." None of them explain how discriminating against gay and lesbian couples enhances heterosexual marriage. I realize you are having trouble grasping this, but there really is no basis for the opposition other than "we can't change things".

Posted by Col Bat Guano | July 26, 2007 3:24 PM

"I realize you are having trouble grasping this

Well, I guess I have a lot of company.

You realize that irrational means - Having nothing to do with reason?

(Who new?- lots and lots of bigots? so articulate too..)

Posted by Fitz | July 26, 2007 3:31 PM

Fitz, all the arguments you have made could easily be but and pasted into anti-misegenation laws half a century ago. What's different about gay marriage? Are biologically produced children really such special snowflakes that the state must work to protect them at all cost? (And if that is the case, please realize you are slapping infertile couples, older couples, the childless by choice and all adopted children directly in the face.)

What's the argument, really? Because "everyone else agrees with me" doesn't cut it when it comes to human rights.

Posted by Persia | July 26, 2007 4:32 PM

Are biologically produced children really such special snowflakes that the state must work to protect them at all cost?

And really, how would they be damaged if gay marriage was allowed? There just isn't any logical basis for banning it, but people just don't like admitting to themselves that they harbor whatever prejudices lurk deep in their hearts so they try and invent rational justifications.

Posted by Col Bat Guano | July 26, 2007 5:15 PM

Persia (writes)

"Fitz, all the arguments you have made could easily be but and pasted into anti-misegenation laws half a century ago."

Hardly - co-opting the moral authority of segregation is no shortcut to reasoned thought.

The problem with the (horribly over used) Loving example is its power comes from mere analogy. The problem with analogy is it is exactly that: an analogy. Its weight raises and falls on the strength of the analogy.

Courts have been quick to dismiss this characterization of marriage law with racial segregation. The point of anti—miscegenation laws were to keep the races apart. No one would seriously argue that that is the point of marriage law. Quite the opposite, the intention of marriage law is to bring the two sexes together.

Numerous courts have rejected the Loving v Virginia reasoning as inapplicable. Even the Goodridge court refused to give homosexuals strict scrutiny protection as Loving accorded to race.

As the Washington decision illustrates

“We vigorously reject any attempt to link the discriminatory Anti miscegenation laws in Loving with this State’s DOMA. The Washington Court of Appeals in Singer correctly noted:the Loving and Perez courts [Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948)] did not change the basic definition of marriage as the legal union of one man and one woman; rather, they merely held that the race of the man or woman desiring to enter that relationship could not be considered by the state in granting a marriage license. 11 Wn. App. at 255 n.8. Numerous other courts have all rejected the claim that the decision in Loving somehow challenged state laws reaffirming marriage as the union of one man and one woman.25 Careful review of the historical context of Loving further undermines the dissents’ disturbing attempt to link constitutionally void, racist laws with a historical definition of marriage as between a man and woman. Anti miscegenation laws were anathema to the “color-blind” constitution articulated in Justice John Marshall Harlan’s dissent in Plessy v. Ferguson.26 Anti miscegenation laws infringed upon the union of one man and one woman by injecting racial status as a qualification. Such laws contradicted the fact that a man and a woman of any race have the natural right to marry and have children. This right is protected by the United States and Washington State Constitutions. Racially discriminatory anti miscegenation laws also violate the right to marriage between a man and a woman. Here, in contrast, the State’s DOMA simply confirms the common law understanding of marriage as a union of a man and woman. It is the dissent that would abrogate the common law understanding through judicial fiat.”

Posted by Fitz | July 26, 2007 7:55 PM

Quite the opposite, the intention of marriage law is to bring the two sexes together.

Ok, once more real slow for you: How does forbidding gay marriage bring heterosexuals together?

Posted by Col Bat Guano | July 27, 2007 12:04 AM

You keep getting it all twisted up for the benefit of your convoluted belief that "rational basis" is the same thing as "you have answered every possible objection.

Above (yet another court) is quoted in demolishing your objections.

It says, quite frankly that marriage as traditionally defined is not "irrational bigotry".

How many court precedents, articles and popular opinion must I site until you realize that...

Doesn’t agree with me = irrational bigot

Posted by Fitz | July 27, 2007 9:05 AM

How many court precedents, articles and popular opinion must I site until you realize that...

You seem to be confused about the rationalizations people use to deny their prejudices. Everyone of those opinions and precedents you are so fond of still come down to the fact that "traditional marriage has always been defined this way and we mustn't change it ever." The reason that traditional marriage has always excluded gays and lesbians is due to irrational bigotry just as the ban on interracial marriage was. In fact every social change like eliminating child labor or protecting our environment has been met with the same sort of clinging to tradition. I'm sorry you can't find a real justification for your opposition to gay marriage to salve your conscience, but appeals to tradition are not rational.

Posted by Col Bat Guano | July 27, 2007 4:56 PM

FItz,
Of course you have it right. Col Bat Guano (what a serious name btw--really gives one the impression one is dealing with an intellectual major leaguer, that, eh?) means "whatever Col Bat Guano thinks" when s/he writes "rational." It's what most of these folks mean when they say "rational."

Do you think the sun will come up tomorrow, Col BG? Why or why not? Explain how your belief that it will or will not is 'rational' and not based on traditional knowledge (it has always come up before). You may consult Hume in your answer, should you happen to know who he is and what he has to say on the matter, though I suspect you do not.

Posted by Alexander Riley | July 27, 2007 11:00 PM