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Thursday, October 26, 2006

Gay marriage in New Jersey 


Glenn Reynolds has a round-up of links or commentary on the New Jersey Supreme Court's decision yesterday to require the state legislature to legalize gay marriage or adopt a Vermontish solution that results in gays having equal protection of the law. The marital rights of gays is not an issue that tremendously animates me -- I once wrote a post with the title "Gay marriage: My one and only post", a promise it took me 13 months to break -- but when it surfaces I make two points. First, I support lawful marriage for gays for any number of reasons. Second, I think it will lead to no end of folly if it comes into being by the decisions of courts rather than under laws passed by legislatures that are not otherwise under threat of court order. One would have thought that the history of the abortion wars in this country would have taught judges at least that much, but apparently their own zeal for the legislator's job is more powerful than the obvious lesson of history.

What sort of troubles will come from this? Well, it seems that there are several obvious consequences. The appointment or election of judges -- now at the state level as well as the federal -- will become a function of their position on the gay marriage question, rather than their competence to perform the other overwhelmingly more important aspects of their job. The political parties will use it as a wedge issue, which will set back the cause of marriage for gays for a generation, just as Roe made it impossible to have an intelligent or honest discussion about abortion. True, gay couples in certain jurisdictions will have achieved an immediate legal victory, but the gay rights movement will have been spared the hard work of persuading a majority of their fellow citizens that legalizing gay marriage is the right thing to do. Other gays will pay the price for this, because -- also as we learned from the abortion wars -- it is far easier to incite passions when democracy has been denied than when it has spoken.


13 Comments:

By Anonymous TheJokker, at Thu Oct 26, 08:38:00 AM:

did marriage not evolve as an institution for raising children? it attempts to create a permanent relation and creates compensation for the expense of raising children.

gays are non-reproductive and do not meet the "minimum system requirements". unlike marriage for heterosexuals gay marriage serves no function for society and is purely political...  

By Blogger TigerHawk, at Thu Oct 26, 09:05:00 AM:

If reproduction is the reason for marriage -- a "minimum system requirement," as you say -- why do we let infertile heterosexuals marry? I understand the institution evolved that way before we had the means for determining fertility and there were too few women who were infertile by virtue of age to matter, but how can that be the reason for marriage today? I don't get it.  

By Blogger Screwy Hoolie, at Thu Oct 26, 09:11:00 AM:

Long time, no comment.

Hawk, thanks for standing up for your stance in this post, but I just wanted to clarify a point.

The NJ Court did not approve gay marriage. They called for equal protection, and it will be up to the legislature to determine how to institute this dictum. It may end up being full-fledged gay marriage, or it may be a simple civil contract without any religious overtones.

George W. Bush once famously remarked that states ought to be able to determine whether to institute gay marriage. So we can assume that Bush will be behind whatever the NJ legislature decides.  

By Blogger TigerHawk, at Thu Oct 26, 10:32:00 AM:

Screwy, I think my first sentence made your point. But as I understand it the NJ Supreme Court left the legislature very few choices -- really only whether to call a union "marriage" or not. The status quo is not an option, so it remains the case that advocates of gay marital rights have not had to do the work of persuading a majority of Americans, or even New Jersey legislators, that their's is the best argument. That is a shame.

By the way, I feel the same way about abortion. I strongly support the overturning of Roe v. Wade, but I would oppose legislation to outlaw abortion in my state.  

By Blogger ScurvyOaks, at Thu Oct 26, 11:09:00 AM:

Well done, Tigerhawk.

I think the ideal system would be for the government not to issue marriage licenses at all. Couples, both heterosexual and homosexual, could enter into civil unions, which would have all the legal effects that marriage currently has. If a couple also wanted to have a marriage ceremony in their worship tradition, fine. It would be completely separate from the civil union and without legal consequences. (Of course, I realize that we're not writing on a clean slate, so it would be hard to get there from here.)

Next time you hear someone talk about those theocratic evangelicals, you might remind the person that there are exceptions. :)

Which reminds me: I'm half-way through an extremely interesting book by a law professor and evangelical named Andy Olree entitled The Choice Principle: The Biblical Case for Legal Toleration. The book has weaknesses -- he repeats himself, there's the occasional bad argument, and sometimes he asks his weaker arguments to do the heavier lifting. But in broad outline, I think he's right on target. There's an upcoming chapter devoted entirely to rebutting Robbie George, which I'm sure will be interesting.  

By Anonymous Anonymous, at Thu Oct 26, 04:20:00 PM:

All very well in theory, tiger, but in practice???
For example, what happens when the "couple" get broody?
Two homosexual men want a child, - they want to adopt a boy!
Given their proclavities, who is gonna say "yes", and what tests are applied, and who is competant to judge, only another homosexual?, a balanced panel? and how long will legal prognostications take on that theme?
Lets say all those hurdles are cleared.
Do you seriosly believe that that young male is gonna grow up with a "balanced" view of traditional marraige, able to make his own decisions without coersion??
(I have mentioned male, but female will equally qualify)
Lets take a more extreme picture.
Suppose one of the homosexuals decides that one male partner is not adequate, and decides the male youngster may favor his advances. Either the advances are accepted or rejected, Whatever, - the situation becomes public, the child is underage.
Which body is responsible (legally) for that situation, the adoption authorities for placing the child in danger?
Do you think they will ever say "Yes" given that scenario"
Will "social workers" be constantly mandated to check the "health" of the adoptee?
Will the checks be equal, or more detailed then checks made on heterosexual adoptions?
Whose rights will be dented?
The can of worms you blithely wish to agree with is really a Pandora's box. It has happened more than once in the jurisdiction where I reside (which you are aware of), for both male and female couples.
The legal costs, and taxes to support all the above required state box tickers are enormous!
You are guilty of that which you heavily criticize islamic apologists for - - being so politically correct that you are unable to take a moral stand on this issue!  

By Anonymous Phrizz11, at Thu Oct 26, 04:47:00 PM:

Anonymous, at first, I was going to get angry. But then I realized that the comedy value of your post far outweighs the bigotry, stupidity, and ignorance it betrays, not to mention the lack of proof for any of its assertions, making a serious response unnecessary.

Double bonus points for implying that homosexuals are more likely to be pedophiles!  

By Anonymous Anonymous, at Thu Oct 26, 04:56:00 PM:

How strange your reply is.
By the way, you can't even spell your name from one day to the next.
Or are you confusing me with someone else, as I may be with you.
If I were to copy a previous poster, I would ask you where you keep your brain, but I won't.  

By Blogger JayG, at Thu Oct 26, 09:42:00 PM:

But if there is a legal right for same sex couples to marry, doesn't it follow that there can be no exceptions, religious or otherwise, so that any cleric who refuses to preside at a same sex marriage is violating the rights of those individuals? How can there be a legal exception for a constitutional or civil right?  

By Anonymous TheJokker, at Fri Oct 27, 08:35:00 AM:

marriage as an institution is much older than the technology that can determine fertility. in centuries past it was assumed th at a man or a woman was probably fertile.

marriage has evolved over thousands of years across virtually every culture. Why not consider the factors that influenced that evolution in defining what marriage is. If gay’s want to ceremonialize their relationship they should be free to do so but it is not marriage…  

By Anonymous Phrizz11, at Fri Oct 27, 10:31:00 AM:

JayG: IANAL, but I don't think so. Religious institutions are private organizations and I think that they are free to carry on however they wish. Catholic priests, for example, will not marry anyone who is not catholic, while at the same time, the state can't refuse to marry persons who are not of some certain religion.

TheJokker: The whole "marriage-is-for-children-so-gays-shouldn't-marry" argument just doesn't work at all. Why aren't hetero couples forced to have children or adopt? What's wrong with gay couples adopting? Why aren't infertile marriages dissolved? Etc etc...
Also, the "seperate but equal" situation you are describing doesn't really have the best track record historically.  

By Blogger JayG, at Fri Oct 27, 09:52:00 PM:

Phrizz11,
I wonder if your bringing up the bad track record of seperate but equal doesn't actually undermine your contention that priests (or Rabbis) are free to carry on as they wish because they are part of a private Institution. Same-sex marriage would temporarilly force this seperate but equal situation while Religious groups are given an exemption, but it won't last. And the Tax exemption will have to go.

Think about it; a mixed race Catholic couple is refused a marriage ceremony. Substitute 'same-sex' for 'mixed-race' and what would be the legal reaction, and the reaction of the community at large? Legally it would have to be the same, even if only to avoid seperate but equal.

Besides, the first place this will happen is not in a marriage ceremony in a Church, but when a Catholic school teacher announces they have married their same-sex partner. Leaving this person as a teacher would undermine and negate Catholic teaching, but removing the teacher will bring legal problems.

Marriage as an institution is beyond government and even beyond religion.

and to Jokker's point, at least complimentary sex couples have the appearance of those who might conceive and bear children. And the Funny thing is, sometimes even the infertle couples have kids - you just never know!  

By Anonymous TheJokker, at Sat Oct 28, 08:29:00 AM:

why does marriage exist across all cultures? why has it persisted for thousands of years? because it serves a primordial function that enhances survival. homosexuality simply has no place in the equation...
(unless you want to politicize it to promote a radical liberal agenda...)  

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