More on same-sex marriage and the law
Because of the current SCOTUS hearings on two cases involving the legality of same-sex marriage, you can read thousands of new articles about it, discussing the social science aspects (see this, for example, about that dubious data), the cultural ramifications, and of course the legal issues.
It’s an enormous amount to wade through, and perhaps that’s why so much commentary on it is muddled (present company excluded, of course :-)). Few people understand the rather complex legal issues involved, and most of the opinion I’ve read comes down to “I think SSM is the right thing to do” or “I think it’s the wrong thing to do.” But the Court is supposed to decide its cases based on whether it’s the legal thing to do under the Constitution, and what role federal vs. state government has in the regulation of marriage.
This post would be book-length if I tried to explain all of the legal issues, and it would probably take me at least six months more research to delve into the details and speak intelligibly about them. I’m not about to do that. But whether you think that the case for SSM is self-evidently progress in the cause of liberty, or whether you think it represents the further precipitous decline of Western culture into immorality and chaos, the Court’s charge is much narrower: the law on the subject. Questions as to whether the federal government (Congress, in the case of DOMA) can regulate marriage or whether that function is relegated to the states, and whether (in the Proposition 8 case) a state ban on SSM violates the Fourteenth Amendment protections that apply to states as well as the federal government, are the essential ones before the Court.
I make no predictions about how the Court will go on this. I don’t have a gut sense of it, the way I did with the Obamacare case (where I correctly predicted Obamacare would be found constitutional, although I did not foresee the exact reasons Roberts would cite). I have to say that since most experts were wrong on their predictions about Obamacare, I don’t trust their prognostications on the SSM cases either (the questions the justices ask during oral arguments are a far from infallible indication of anything about the final decision).
I will say this, though: not only do the justices have their own prejudices and biases which are hard to weed out (assuming that they’re trying), but it seems to me that in recent years SCOTUS decisions have more and more reflected justices’ concerns with public opinion and trends, and a desire to move with the times.
In both of the cases now before the Supreme Court the law offers the justices a way out, which is to punt (as I wrote yesterday about the first one, which deals with California’s Proposition 8). Punting would have the advantage of letting the times (rather than the Court) move with the times. But that may involve too much waiting and watching for the more eagerly activist members of the Court to bear.
To me the biggest loss is that the court feels obligated to insert itself smack dab into the middle of whatever pop culture issue du jour being bandied about at any given time, to make “new law” just to it can see itself as relevant. So much for freedom and 50 little laboratories of democracy. This is all so stifling and unnecessary.
“Few people understand the rather complex legal issues involved, and most of the opinion I’ve read comes down to “I think SSM is the right thing to do” or “I think it’s the wrong thing to do.”
I freely admit to being in the latter camp. I find myself impatient with the social-effects arguments–how will this affect society?–and unwilling even to spend time understanding the legal argumenst. I’m glad there are people willing to do both, but it seems to me that the fact that this is even on the table is a sign of a flight from reality that can’t even be addressed in arguments. It’s as if people are demanding that circles have corners, and squares be round. Or that both be called squircles, with the distinction being considered a matter of eccentric religious doctrine outside the bounds of common discourse.
Why should any government entity be in the business of deciding what is and what isn’t a legitimate relationship? Let consenting adults form whatever relationship that makes them happy. Let them call it what they will. If they choose to do so, let them formalize that relationship by contract defining rights and responsibilities. Let them seek any religious blessing of their relationship that satisfies their conscience. Let it be understood that any child born or adopted as a result of that relationship is the full responsibility of both parties despite the condition of that relationship.
kaba1776: the details of the DOMA case being heard by SCOTUS now involve the fact that marriage entails federal tax benefits unavailable to same-sex couples. That’s how the federal government has gotten into the act.
I’m aware of that neo. I just don’t believe the government should be in the business of attempting to modify personal behavior by use of tax law. In fact a flat tax or fair tax based solely on income would be just fine with me.
But then I’m just a cranky old guy who grows more libertarian by the year.
A straight person is free to marry the opposite gender person of their choice (provided consent of course).
A gay person is also free to marry the opposite gender person of their choice. The fact that they might not want to exercise that option is not relevant.
This whole gay marriage thing smacks of being mad at McDonalds because they won’t sell you a Whopper when you barge in demanding that they do so.
@kaba1776 – the state is involved because they have a monetary interest in the fallout when a marriage goes south. See: matching federal dollars for child support monies collected.
Another word in the English language is being re-defined due to political maneuvering.
This is Orwellian.
The SCOTUS oral arguments make me think of Pilate.
Knowing what is right, not wanting to deal with the political fallout.
Kaba:
This is naive, even childish – and although I don’t know you, when it issues from the mouths of people who want government to protect us from Big Gulps, it’s deeply dishonest.
The Law codifies our society’s shared values.
Those values may be expressed as rules of what we can and cannot do to each other – but at its base, it’s an expression of society’s moral (even philosophical) common denominator – its shared perspective and values.
The “government” – in its role as legislator – most definitely does have a right/obligation to occupy itself with the definition of marriage and other relationships. Westerners are fortunate that the legislators are elected representatives of the people, rather than dictators.
Well said, Ben David.
Government is involved in marriage because there is property and transfer of property involved. As well as the question of responsibility for children. At one time (back in the days of Dickens) many bastard children were homeless waifs that no one took responsibility for.
Washington State has legalized SSM. But that is not enough for the Gay community. They now want national legalization for the BENEFITS. That’s why they want DOMA declared unconstitutional. A number of married gays were interviewed locally on TV yesterday. They want to be able to file joint tax returns, move anywhere they wish, and as one lesbian lawyer put it, have access to the 1117 federal benefits (I have no idea what all of those may be.) that heterosexual couples now enjoy.
I knew a couple of gay men back in the days before AIDS. They had no interest in marriage or monogamy. They gloried in their freedom to enjoy a promiscous lifestyle. AIDS changed that. It dawned on them that there were medical benefits available to married couples that they couldn’t have. That lead to them discovering the many other benefits that have been made law. This SSM push is mostly about those government benefits, which are supposed to encourage marriage and family. (They seem not so attractive to straight couples these days – SIGH!) There may be some gay couples that are really into monogamy and true love, but my guess is that most have dollar signs in their eyes.
I have favored providing a legal avenue for gays to have the same legal rights as married couples through domestic partnerships. Domestic partnerships would be strictly non-religious contracts that provide legal standing for SS couples. Churches that did not want to marry SS couples would not have to. It would provide the legal standing that SS couples want, but without getting the religious community involved. Of course, IMO, the militants in the gay community along with their progressive cheering section want to humiliate the religious community and run rough shod over their beliefs.