We've got talking points if people call Smith on the Basic Rights Oregon blog. View them here--and call call call!

Bryan Boyd

The Senator Russ Feingold supports legalizing marriage. Finally a prospective Democratic Presidential Candidate who supports equality.

Thanks for posting this!

A staffer in Gordon Smith's office, Chris Maier, once arranged for a formal letter from Smith welcoming our oldest son into the country (he was born in Cambodia). My partner and I, together 17 years, married in Canada in 2003, and host family to a 16 year old from Germany who attended Jefferson High school last year - well, we're sending that letter back.

We don't want anything to do with a guy who believes that our family is worth less legally than his own; someone willing to selectively erase a basic civil protection for gays and and lesbians by actually amending our country's (not to mention our state's) founding document.

And to do so for religious reasons - to literally enshrine his personal, evidence-free, faith-based prejudices into our Constitution, obliterating basic civil rights guaranteed all Americans in an effort to dehumanize my family, and other gay and lesbian families alone.

That letter (from our rightwing, gay-bashing, Republican US Senator Gordon Smith) is in the mail.

Ah, Harry Reid. Good speech here, but he did support the constitutional amendment against same-sex marriage in Nevada.

The overarching fears of same-sex marriage coming from the right are often matched stride by stride from the left with hyperbolic cries of bigotry, discrimination, intolerance and denial of basic human rights. These kinds of morality plays stir the passions on both sides and make for good political theater, regardless of whether they make good public policy. To chastise the pot-stirers for playing this card to nowhere, over the more pressing crises of nation-building, does nothing more than contribute to the din of personal outrage at the expense of legitimate debate on the things that matter.

Hi Sponge -

I suspect you'd feel differently if your family were directly targeted for the elimination of a basic civil protection by religious fundamentalists, and if the attack was already successful in your home state (a la Measure 36).

And no less an authority than the US Supreme Court ruled (in 1967) that marriage is a "basic civil right" (like voting, assembly and speech), when striking down similar, religiously inspired anti-miscegenation laws and amendments (laws prohibiting interracial marriage).

There is passion here - because this affects my family.
And my family is not worth one right less than yours (or Smiths).

The only reason this is happenening is because the people sponsoring the ban are bored with their lives and needed something to do. Their 'reasons' for doing this are just lame excuses. They don't have anything else better to do than to hate others out of pure boredom.

[idiotic, ad hominem attacks deleted. -editor.]

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But happily, Ben is welcome (Constitutionally) to express himself.

[But not ad hominem and personal attacks here at BlueOregon. His constitutional rights of expression extend to his own blog, not this one. -editor.]

And no one is preventing him from voting, assembling, marrying, etc. Though his dog, alas, ain't human, and Constitutional rights cover humans (but all humans - even the gay and lesbian humans).

[idiotic, ad hominem attacks deleted. -editor.]

Don't forget, amongst all the problems we face we also have flag burning and the estate tax coming up for debate in the next two weeks in the senate. When each child is born in this country they inherit $30K in national debt so why is it unfair to tax the 1% of people that die with more than a milion dollars? Come on U.S. Senate, lets fix some problems and stop playing election year politics!

-Travis VP UO College Dems

Hi, Bill-

Your claim to having a basic civil protection "eliminated" is a stretch. Homosexual marriage has never been recognized as a constitutionally protected "right," therefor it is dishonest to characterize it as being eliminated. (That is part of the hypebole I had in mind, torridjoe.) The concept of homosexual marriage as a protected "civil right" on the same par as heterosexual marriage is a fairly recent claim to the pantheon of recently discovered oppressions. That the definition of marriage should even be considered as appropriate for inclusion in the U.S. Constitution is a travesty. We are all losers in this debate before it ever starts.

I can't recall any time where the Constitution has been amended to deny basic rights to anyone. The president is pandering to the religious right, knowing that they comprise the twenty-something percent of the populous who don't think he's the worst president ever. Talk about misplaced priorities-the American middle class is being driven deeper in to poverty every day, oil companies are making record profits (yet still receiving government subsidies), the federal deficit is growing by the second, American citizens are being spied on by their government...yet those assclowns in D.C. are worried about flag burning and gay marriage? Give me a break. I think it's time for a complete House cleaning in November. Enough is enough.

Leo, I'm sorry you interpreted my referrence to "things that matter" as an inferrence that your stake in this issue does not matter. I was less than clear on that point, but my comment was meant to refference the opening lines of this open discussion which juxtaposed the silliness of the senate making this issue its focus in the face of other pressing issues such as war, terrorism, the health care crisis, failing schools, the national deficit, global warming and the New Orleans crisis. I apologize for that inadvertant lack of clarity.

The 14th amendment does not guarantee homosexual marriage anymore than it guarantees abortion. As I understand the legal issue, because of the federal government's overriding interest in all state rights as interpreted through the commerce clause, a marriage authorized in one state must, theoretically, be recognized by other states whether they choose to or not. The idea of this amendment was to protect the unenlightened states from accepting marriage contracts from the enlightened ones. Marriage is not a federal institution, but a legal contrivance of the states. It is ironic that the feds would choose this vehicle to grandstand on the high ground of state rights when they have no problem trampling state rights elsewhere.

By definition, anyone that votes YES on this amendment is stipulating that the Constitution already includes a 14th Amendment (or other) right to gay marriage.

Or, to be more precise, they're stipulating that some courts might interpret the 14th Amendment as including such a right.

So, why don't states simply allow gays to join in "civil unions", with all the rights and responsibilities of marriage? I think too many people are hung up on the word "marriage".

Sponge -

I'm not talking about "homosexual marriage" - I'm talking about marriage. I'm married. My partner and I, together 17 years, got married - legally - in Canada, a country where the basic civil right of marriage extends to everyone, gay and straight. We're married, with kids (5 and 7). We fell in love, cohabited for 14 years, had kids, and then got married.

Marriage is marriage - a civil contract between two adults who (hopefully) love each other. And it is a basic, constitutionally protected right, as the Supreme Court declared in 1967, when it struck down many laws and amendments - religiously inspired, as usual - that considered "interacial marriage" a similar abomination. It was apparently a stretch for some people then, too.

I think the solution is to give Mormons, Christians, Jews, Muslims, etc. "religious marriage." The government should not be in the business of "religious marriage" - but as I've mentioned, I don't think it is. Marriage is a basic Constitutional right, due every American citizen. If a church wants to discriminate, fine. But the state (and a US Senator) certainly should not.

It all comes down to dehumanizing your neighbor - my marriage is a "homosexual marriage," something less than "marriage." But it's not true. I'm real, breathing, alive, American - and my family is, too. Reality is tough for religion - but the founding fathers (& mothers) were pretty sharp. They had it right the first time with equality for all.

Steve, if civil unions had been proposed to interracial couples as a solution -- it never was -- would you be as supportive? Sometimes, you have to stand your ground and demand what is right, not what is expedient.

How does this discriminate?

Gay people certainly can get married. They have the same privilege anybody else has. They can legally marry a person of the opposite sex. Same rule applies to everybody - no discrimination at all.

The debate on same-sex marriage is all about this question: “What role, if any, does the government have in regulating who may marry whom?”

This thread has correctly pointed out American marriage laws have changed over time through both legislative and judicial actions. But the fact remains, the State still determines who may marry and therefore automatically discriminates against those who may not marry.

Even before Measure 36, Oregon marriage laws (ORS chapter 106) were and continue to be discriminatory. Oregon discriminates against persons under 17 years of age. In Oregon, a 15-year old girl may get an abortion without her parents’ knowledge or consent, but may not marry. That is discriminatory.

Oregon discriminates against “first cousins or any nearer of kin to each other,” who are prohibited from marrying, regardless of age, sex or sexual orientation. And worse still, Oregon discriminates against those who think marriage is such a great idea, they want to have more than one wife or husband at the same time. Not only are those marriages absolutely void “if solemnized in this state,” but a person who marries another person while still married commits a class C felony in Orygun. Discriminatory? Absolutely.

Incest. Bigamy. Polygamy. All outlawed by discriminatory Oregon laws. Proponents of same-sex marriage will understandably object to being lumped together with those banned practices. But in the end, this is a discussion about who may marry whom. And unless the answer is, “Anybody, Anytime,” there will be some persons left standing outside the altar.

• Wes

From Steve (above): While the idealistic part of me agrees with you, Bill, the practical side does not. A "civil union" is a marriage in everything but name.

I agree completely. I don't care, ultimately, what the state calls it - but any contract they offer must be offered to everyone. It's a basic right (said the Supremes, emphatically, in 1967). There can be no tiered system - marriage for straights, civil unions for gays and lesbians. Equal protection means equal protection - "separate but equal" is not OK.

And on one level, what the faith-based have done is make "marriage" impossible for the state to offer equally - because "marriage" is reserved for straight couples (at least in Oregon. It's become "religious marriage," and the state should get out of that business completely.

So I agree - civil unions for all!

And you're right - it may ultimately kill "religious marriage." I know a lot of people - especially young folks - who'd prefer their wedding with a secular judge who does not discriminate instead of your average, unmarried, sexually isolated, lawsuit-saddled priest who (pathetically) does.

For me, the question of gay marriage comes down to this: if marriage is a good thing, and I think it is, why not offer its benefits and responsibilities to more people (adult human beings, of course)? This is actually a conservative position in one sense, i.e. marriage helps to stabilize society and social stability is a conservative value. Relationships and families benefit from recognition by society and social support, and we all benefit from that in turn. That's all rational stuff. On an emotional level, I want the loving relationships of my partnered gay friends to be fully received and blessed by all, if they choose to marry - because marriage is difficult in addition to being wonderful, and it sure helps in the difficult times to know that you are married and plan to spend the rest of your life with your partner, as married people wish to do and are expected to (at least try to) do, with a little luck and lots of support and tribal wisdom regarding the state we call "married". Also, it just feels so affirming to have one's relationship recognized and blessed, and I want people to have that.

Why does it matter what these 'gay' people do? We should just leave them alone. Why does it matter who they want to love and what they want to commit to? Why do some people feel the need to control these people? Is it really necessary to beat these people over the head with this garbage? It is the outcome of hate or boredom? I say lets just mind our own business - not theirs - and just let them be. We have better things to do than bother other humans beings in such petty matters.

To me, the underlying issue is why is marriage the basis for many of society's benefits? Why the discrimination against single people, who pay the most tax and get the least benefits?

For example, I can't get on my sister's health insurance plan (and we're definitely relatives) because that familial connection is not recognized as important - even though if I became seriously ill, she would sacrifice everything to pay for my expenses. Heck, we couldn't even qualify as a "family" for a cheap swimming pool membership because we don't fit the perceived definition of family. And there ain't nobody more family than me and my sister.

We have a 50% divorce rate in this country. If marriage were a stock, nobody would buy it. Why do we worship it so and make such a chancy institution the basis for rights?

I think we should amend the Constitution to outlaw fat people.

It has been defeated today. Just as expected Smith voted for it, Wyden against it.

Torridjoe wrote: it seems to me that the best legal shot specifically in Oregon is to argue that sexual orientation is a discrete, recognized status distinction -- and thus to deny the raft of benefits financial and social that come with marriage on the basis of membership in this discrete class violates state equal protection law.

From Romer v. Evans, U.S. Supreme Court, 517 U.S. 620 (1996):

"Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. ... [I]n making a general announcement that gays and lesbians shall not have any particular protections from the law, [Amendment 2] inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. ... We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause...."

From Lawrence v. Texas, U.S. Supreme Court, 539 U.S. 558 (2003):

"[Sodomy laws] seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. ... The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. ... As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

From Tanner v. OHSU, Oregon Court of Appeals, 157 Or. App. 502 (1998):

"[T]here is no question but that plaintiffs are members of a true class. That class--unmarried homosexual couples--is not defined by any statute nor by the practices that are the subject of plaintiffs' challenges. Moreover, the class clearly is defined in terms of ad hominem, personal and social characteristics. The question then is whether plaintiffs are members of a suspect class. Here, too, we have no difficulty concluding that plaintiffs are members of a suspect class. Sexual orientation, like gender, race, alienage, and religious affiliation is widely regarded as defining a distinct, socially recognized group of citizens, and certainly it is beyond dispute that homosexuals in our society have been and continue to be the subject of adverse social and political stereotyping and prejudice."

The best way to solve this is to just get the government out of it altogether. Not to recognize any of it. Then nobody can bitch.

In the past, marriage only involved you, the one you love, and God.

It got all messed up when Uncle Sam showed up at the wedding uninvited.

The Tanner decision is likely moot (as an avenue for legalizing/creating/whatever gay marriage) in light of Measure 36. A court challenge to hetero-only marriage laws based on the precedent of Tanner might have succeded. In hindsight, it seems like the Diane Linn/BRO end-around was not the best strategy.

In light of meausure 36 and the subsequent legal challenges, it is unclear if Tanner is still good law (it was only an appeals court decision).

Misha did a good job of cherry-picking language but, according to SCOTUS, homosexuals are still not a suspect class.

I'm just irritated with BRO/Diane Linn/the county lawyer for pursuing a politically unwise strategy for legalizing gay marriage when Oregon had the best precedent (Tanner) for pursuing a legal challenge to hetero-only marriage (a legal challenge would consist of asking for a marriage license and then suing when denied as opposed to orchestrating secret county commisioner meetings and relying on a legal opinion issued by someone w/o authority to do so).

Blizzak:

Tanner's status as "good law" is not in question. True, it is not binding on the Oregon Supreme Court, but it remains binding on all lower courts. Its applicability to the narrow question of marriage is, however, limited by Measure 36.

To read about Tanner's applicability to the issue of civil unions, see Attorney General Hardy Myers's legal opinion on the issue. ("[T]he Oregon Supreme Court likely would conclude that withholding from same-sex couples the legal rights, benefits and obligations... that are automatically granted to married couples of the opposite sex likely violated Article I, section 20 of the Oregon Constitution....")

Gays have not been recognized as a suspect class by the U.S. Supreme Court -- that is correct. But they have been recognized as a group of people entitled to heightened protection. The language cited above is not "cherry picked" -- the language in Romer, Lawrence, and Tanner I quoted is central to the Courts' holdings in those cases.

Pat Ryan does a very nice job of demonstrating why so many people (rightly or wrongly) feel that Liberals are trying to break down the Christian faith and social practices that surround the faith.

The use of the word "mythology" for someone's belief doesn't help much. If you are going to take special aim at Christians, that is your right. Buy your comment about divoce rates of 50% "That's the way God wants it" speak an un-truth about what the Bible says about marriage:

Read the words of Jesus in Matthew 19:9
"I tell you that anyone who divorces his wife, except for marital unfaithfulness, and marries another woman commits adultery."

Prior to these words, Christ says in Matthew 19:4-6,

"...that at the beginning the Creator "made them male and female' and said, 'For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh'.."

Please notice, that the participants are of marriage are defined as man and woman. The speaker is our savior Jesus Christ. The speaker is not a Republican.

Please also notice that divorce is very much frowned upon as something that is permissible for reasons of infidelity only.

If you believe, like Pat has stated, that faith is mythology, then none of this matters and of course you disagree with what I've said down to the marrow in your bones.

If you are a Liberal Christian, I'm very interested in your perspective of these passages.

Kindly excuse the typos,

Dan J

The Tanner decision contains the bold assertion that

"[The Court of Appeals] therefore understand[s] from the cases that the focus of suspect class definition is not necessarily the immutability of the common, class-defining characteristics, but instead the fact that such characteristics are historically regarded as defining distinct, socially-recognized groups that have been the subject of adverse social or political stereotyping or prejudice."

So, what defines a "suspect class" in the eyes of the Oregon COA? Let's see:

1) existence of common, class defining characteristics 2) historical association with distinct, socially-recognized groups 3) adverse social or political stereotyping or prejudice

Under this definition, the following groups all fit within the "suspect class" tent:

• Unmarried heterosexual "couples"
• Feminists
• Bigamists
• Polygamists
• Pederasts
• Practicers of beastiality
• Necrophiliacs
• Prostitutes
• "Obese" people
• "Little" people
• "Hillbillies"
• Environmentalists
• Vegetarians
• Evangelical Christians
• White separatists
• Lawyers
• Used car salesmen
• Police officers
• Truckers
• Plumbers
• Ex-convicts
• Registered sex offenders

Remember - when all classes are suspect, no class is suspect. And when the Oregon Supreme Court has occasion to address the "suspect class" reasoning in Tanner, the "suspect class" of "unmarried homosexual couples" will be a thing of the past. Rational basis review will prevail. Bet on it.

Hardy Myers is not a judge.

Romer was a rational basis case.

Lawrence was about privacy/the right to be left alone.

Seeing what you want to see in legal precedent will only hurt the cause.

SMR:

You seem to believe that "immutability" is the hallmark of a suspect class.

So I ask you: Should religious minorities be protected with heightened scrutiny? Religion is not immutable -- people convert to different religions all the time. Should marital status be protected with heightened scrutiny? Martial status is not immutable either.

Interesting that mental disability (e.g., retardation) is immutable, but the mentally handicapped are not recognized as a suspect class. (Cleburne v. Cleburne Living Center, 473 US 432 (1985))

Technically, gender is not immutable either. And while we're on the subject, I think many gays and lesbians would tell you that their sexual orientation is not an immutable characteristic. But maybe you know more about being gay than they do?

Err... I meant to say:

"many gays and lesbians would tell you that their sexual orientation is an immutable characteristic."

Misha,

There is another inference to be drawn - that I seem to believe that most "suspect classes" are bunk, no matter how they are defined. And that would be the correct inference.

I'll begrudgingly accept race, alienage, national origin and certain "fundamental" rights as worthy of strict scrutiny review. But no others.

Gender is not afforded strict scrutiny review, since it's only a "quasi-suspect class" under SCOTUS jurisprudence.

Religious minorities have the equivalent of strict scrutiny review under the Establishment Clause.

If homosexuals deserve special protection as a "suspect class", there's no reason to deny it to any of the groups I listed above. That would be unequal.

Re-read the passage, Mark, and you'll see where you're mistaken.

Is national origin biological? Is alienage biological?

Of the three recognized "suspect classes", only one (race) is arguably biological AND immutable. Gender (a "quasi suspect class") also is arguably biological, but as Misha has pointed out, is not immutable.

The court clearly speaks to "class-defining characteristics", not class-defining characteristics that are immutable or grounded in biology.

Each of the groups listed in my post meet the three prongs of the Court of Appeals' reasoning.

Although redheads may have a credible claim under this definition (a la the South Park ginger kids episode), people with green eyes simply are not a "socially-recognized group" and have not experienced "adverse social or political stereotyping or prejudice".

Pat,

I didn't feel singled out at all. I chose to respond based on a post last week by a gentleman titled "Doing God" or something to that effect. This topic ties into that one at the hip. Many Liberals felt compelled to discuss ways that they could show their faith and make it part of the election calculation.

As for all of your definitions; thank you. You saved me another trip to Webster's online. What would I do without all of you intelligent liberals to explain to me who "irony" can be used in conversation.

It is smug arrogance of that nature (providing word definitions and explaing how ignorant the red state electorate is) that continues to cost Liberals election after election. I will freely admit that it is that same arrogance that has cost President George W. Bush much of his influence in Washington.

Even though you don't believe in the authority of the Bible, there is certainly a phrase that is made famous from it,

"pride goes before destruction..." Proverbs 16:18.

This smug pride is an affliction of both of the major political parties. It is why we will see the next Governor win the election with less than 50% of the votes cast.

It is also why Gordon Smith is in much bigger political trouble than he thinks. If Democrats ran a moderate candidate that didn't act like an elitist, they would beat GS in a big way. They won't though. They have too much pride.

By the way, I'm still interested in hearing a response to my prior post from a(some) Liberal Christians?

Jenni,

I appreciate your comments. If you choose to take a direct biblical quote from Jesus, question its' authenticity, and say that because he didn't go into a rant exlaining that man and woman meant one mand and one woman, well that is your right. Faith is a matter of free choice and neither I, nor any Christian who chooses to follow Christ's message want to force your to believe in the truth of the Gospel.

As I stated in my post, I am interested in the opinion of Liberal Christians. By definition: Christian means that you believe that Christ is the Holy son of God.

If there are any Liberal Christians that frequent this sight, please share with me your thoughts on the meaning of Christs words in 19:9 and 19:4-6.

I think that all of you who are so set against some people not having the same rights that you have are just idiots. And any argument you think you can come up with that you think justifies your opinion, only goes to prove you are idiots.

So you don't want gays and lesbians to be treated equally? Fortunately history is not on your side, eventually the arguments made are seen to be as hollow as they have always been. But you should question why it is so important for you to not treat other human beings as your equal. What's that about?

Dan J--

I don't understand why the basic thrust of Jenni's argument can't be shared by a liberal Christian. I know many liberal Christians who understand that their belief in the Bible is a matter of faith and simply do not want to impose their faith on others.

Would you ever think to ask a Jew or a Muslim: Why don't you want Congress to pass a law imposing Jewish/Muslim dietary laws on all restaurants?

It is one thing for you to believe that marriage should be between a man and a woman. It is quite another thing for you to want to impose that belief on others.

Jeff wrote:

"It is one thing for you to believe that marriage should be between a man and a woman. It is quite another thing for you to want to impose that belief on others."

That is an excellent point.

But I ask in earnest: Isn't that the point of a representative democracy? That the will of the many is, with certain exceptions, imposed upon the few?

We're ALL in the minority on at least SOME issues. And it hurts most when we're in the minority on the issues that are nearest and dearest to us. We can debate, educate, proselytize and otherwise attempt to convince others to support our minority position, but that's about it. At the end of the day, you either have the majority on your side, or you don't.

To Dan J---

This Liberal Christian also recalls that Jesus said, "Judge not, lest you be judged."

I'd also like to point out that, short of going into detailed analysis of exactly the specific meanings of the koine Greek are in those passages, insisting on a specific, literal interpretation that fits one's political analysis may not be the correct one.

Finally, let's also remember that Jesus said "give to Caesar what is Caesar's and to God what is God's."

Marriage is more than a religious commitment; in modern society it is a form of legal contract and as such, within a legal context, Biblical justifications should keep out of what the society as a whole defines as a legal contract between two people who want to join their households into one household. Comparing same-sex legal unions to the situations condemned within the Bible are not on all fours with each other. The situations condemned within the Bible involve motivations which do not relate to commitment; furthermore, they're not limited to same-sex sexual relationships but to those who were focused exclusively upon pleasure instead of a desire to make a long-term commitment.

It is strongly in society's interest to encourage and develop legal structures which allow these partnerships to have a contractual, legal basis. It is unfortunate that these partnerships share the same name as the partnerships recognized by religious faith.

Marriage as defined and ruled over by the state is entirely secular. Biblical standards should only be applied when the participants in the relationship invite religious standards into the relationship.

And yes--before you ask, I do support the idea of sacramental marriages. I also feel that religions should not be forced into solemnizing relationships that they feel do not fit within their pattern. However, I believe that forcing the state to fit a religious definition of marriage into a secular contract is also inappropriate as well.

(To everyone else, I apologize for wasting bandwidth, as I'm sure what will follow will be extended ranting about Sodom, the evils of Liberal Christianity, and an extremely limited exegesis based upon a very limited interpretation of the New Testament as interpreted into the English language. Nonetheless, someone had to speak up).

Here's something to think about:

Some churches do not allow anyone to be married in their church unless they pass their premarital counseling. Others are not that strict. And anyone who is not religious can have a non church wedding by a judge or other civil official (county clerk, justice of the peace, etc. dep. on the jurisdiction). Those marriages are called civil marriages.

Civil union just means not a traditional marriage and not in a church.

When I hear some of the proponents of the Constitutional Amendment Against Gay Marriage, I think of 40 years or so ago when Guess Who's Coming To Dinner was a controversial movie in some quarters--the screen daughter of Spencer Tracy and Katherine Hepburn was engaged to Sidney Poitier. And one of the lines in the script is Tracy saying "in some states, your marriage will not be legal, and what about children?".

As it happens, I know a young woman born to such a "mixed" marriage who is now a young adult with a child of her own. Too many of the debates over civil unions sound like those same debates.

If people want to keep marriage between a man and a woman but have another legal construct for gays, I don't see a problem with that. After all, if gay marriage ruins traditional marriages, that would mean the divorce rate in Mass. skyrocketed after gay marriage was legalized, right? Did that happen?

SMR:

No. The point of a representative democracy is NOT to impose the arbitrary will of the majority on the minority. We live in a pluralistic FREE society, which means that we permit people to do things with which we disagree as long as those things don't harm others.

Do you really want your private life decided by the whims of the majority? I doubt it.

Also, let's remember that many religions (Reform Jews, some mainline Christians, etc.) do believe that marriage between two people of the same sex is a sacriment. Thus, when the government decides that it will recognize the unions performed by one religious group, but not those performed by another, it is taking sides on a question of religion -- endorsing certain religious tenets over others -- contrary to the spirit, if not the text, of the Constitution's Establishment Clause. I don't want the government deciding which religious rites performed in my church are permissible (unless someone is being harmed in the process). Do you?

I also think that depriving a certain group of people marriage rights based on animus toward that group violates the Equal Protection Clause. Certainly, the Constitution -- in addition to the abstract principle of pluralism -- constrains the whims of the majority.

If you want a textual basis for my claim that the legslature's power should be constrained by the principle of pluralism, you should take a look at the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Jeff:

I'm sure you know that majority rule and pluralism are not mutually exclusive. Both are core principles of our representative democracy. In theory, certain minority rights must exist independent of the will of the majority. But in practice, the majority has the power to define what is--and what is not--a protected right.

All of our private lives are, to greater and lesser extents, governed by the will of the majority through our elected representatives and the rule of law. That is the price we have to pay under our chosen form of government.

I don't buy the religious marriage Establishment Clause argument. I think Judge Posner said it best on his blog:

"In a democratic society, one has to respect religious beliefs; and no reasonable theory of the meaning of the religion clauses of the First Amendment permits one to argue that religious belief cannot be permitted to influence secular law. No one supposes that punishing murder is an establishment of religion just because the Ten Commandments--a religious code--states 'Thou shalt not kill.'"

As far as equal protection arguments go, we'll just have to agree to disagree. You can side with the majority in the Goodridge case, and I'll take the view of the 3 dissenters (absent a discriminatory purpose, no violation).

Long live the markeplace of ideas.

Torridjoe:

I think everyone agrees that there are certain human rights, so fundamental to human existence, that they cannot be completely disposed of by the will of the majority. (Reaching consensus on what those fundamental rights should be is something else entirely.) But most of these fundamental rights are not absolute - they are subject to qualification by the shifting sands of the rule of law.

IMO, the right to marry is just another qualified right, and the majority gets to define the qualifications.

Most of us wouldn't want it any other way.

Correct me if I'm wrong, I'm certainly not a legal scholar, but aren't amendments to the constitution refered to as "the bill of rights"?

Now if I remember 7th grade social studies correctly these amendments grant rights to people where there were none before. You know, silly things like the right for women to vote.

The purpose of the bill of rights is NOT TO LIMIT PEOPLE'S RIGHTS!

I think it's really odd that the pro-family republican party is so bent on preventing families from being formed. As for that "sanctity of marriage" crap, well...

<h2>Newt Gingrich, Britney Spears and Jason Alexander, FOX's "Who Wants to Marry a Millionaire", Larry King, James McGreevey, and on and on and on...</h2>