3 down, 47 to go

Saturday 11 October 2008 — This is 16 years old. Be careful.

Connecticut has joined the ranks of states allowing gay marriage, good for them. The process was similar to Massachusetts and California: couples sue for the right to marry, eventually the state Supreme Court finds that either existing laws don’t preclude gay marriage, or the state constitution won’t allow distinguishing between straight and gay couples. I for one am glad. I believe that eventually this will be accepted across the country, and people will wonder what the fuss was about. Those predicting the downfall of society will be proven wrong. We continue to have thriving families here in Massachusetts even after four years of gay marriage.

For a vibrant “debate” on the issue, check out the comments on Hot Air’s post about the news. The post itself, while disagreeing with the decision, does a good job analyzing the legal arguments in it. The comments, though, consist mostly of people hurling invective at each other, no one being swayed by either sides’ arguments.

This decision will bring the usual complaints of judicial activism (actually, they were interpreting the constitution, that’s their job), the collapse of morality (how exactly?), harm to families (by creating more of them? I don’t get it), the disenfranchisement of the people (the whole point of judges is to decide independently of public opinion) and so on. To all of them I say, open your eyes and close your mouths. Everything is fine. The boogey-man of gay marriage simply doesn’t exist.

Comments

Joe Grossberg 11:47 AM on 11 Oct 2008

Ahem. I would hope that DC gets full-fledged gay marriage instead of just domestic partnerships.

So 3 down, 48 to go. :)

Robert Brewer 5:04 PM on 11 Oct 2008

We continue to have thriving families here in
Massachusetts even after four years of gay marriage.

Regardless of which "side" you come down on, 4 years is far too short of a timeframe to judge the effects of changes like this. Let's not pretend this isn't a wicked problem. A generation is probably the lower limit, but I'd be more comfortable with 4 centuries.

Like all wicked problems, when the system does fall, it will be equally difficult to prove whether this was a factor or not. Our memories just aren't that long and our histories aren't that detailed. So believe whatever god, government, or guru you prefer which claims to know better at that point.

Ned Batchelder 5:21 PM on 11 Oct 2008

@Joe, yes, let's include DC (and I guess Puerto Rico, Guam, Virgin Islands, etc)

@Robert: I was being a bit facetious with my four-year claim. Although, to listen to the chicken littles on the other side of this debate, you'd think the devil was walking amongst us already...

Robert H 8:49 PM on 11 Oct 2008

Great, because it is always good when Judges ignore the actual law and make their own and that is the only reason it has been allowed in 3 states. Hopefully California will correct this and it will be overturned in Connecticut as well. I obviously come down on the "gay marriage is wrong" side. To you I would say...best not go down the slippery slope at all.

Ned Batchelder 9:26 PM on 11 Oct 2008

@Robert H: you should do your cause a favor and at least understand what's really happening here. Judges are not writing laws. They are comparing laws to the rules of the state constitution. In this case, they have struck down a law. This is what judges do.

You may think that they have misinterpreted the state constitution, and I could understand why you would. The interpretation is of course the tricky part of the job, and why judges are required in the first place. (I once discussed this with a simplistic conservative who wondered why the constitution needs interpretation at all: why could we just do what it says?)

To argue that they are ignoring laws and writing their own is to completely overlook the actual process involved. I think your claim here and the "activist judge" label in general are mere demagoguery, taking a complex and subtle process, turning into something simple and bad. With these labels we have clear villains in the piece: the populace can be riled up against the demon judges, and we needn't look at the actual issues involved.

kudla 7:27 AM on 12 Oct 2008

Ned, I have no issue with gay marriage. Whatever you want to call it,I think that same sex partners should absolutely have the same rights extended to men and women joined in 'holy matrimony'. Functional families are good. Dysfunctional families are bad. That's all there is to it.

What I don't like is the timing, 3 weeks before the general election. Issues like this become a flash point for the religious right, which I believe is the most powerful political force in the country today.

I'd really like to see the elections decided on the basis of the candidates' stands on things like the war, the economy, health care, the environment...

Just my .02.

susan senator 12:25 PM on 12 Oct 2008

Mike,
The timing is bad from the perspective you describe. I feel extremely threatened by the Religious Right of any faith, and the RR in our country is definitely getting stronger.

However, timing is definitely just that: perspective. If you are part of a couple who really wants to get married officially, and start your lives together with the excitement and joy of any newlywed couple, then you will probably feel like the timing could not be better.

David Boudreau 1:05 PM on 12 Oct 2008

Thanks for posting about this, I hadn't heard this news yet. My view of "Predicting the Downfall of Society" recently lead me to an article about Daniel Patrick Moynihan just a week or two ago. It doesn't mention gay marriage specifically but speaks a lot about how society can go down and how parts of it have, in fact, gone down, despite best intentions over just the last 40 years: http://www.city-journal.org/html/15_3_black_family.html . The article speaks to the points of "collapse of morality" and "harm to famlies", at least in the sense that what we assume to be bigoted today may turn out to be genuine concern in the future. While 100% of the people I know personally that are from gay parent families seem to have turned out just fine, very good people, it is also hard for me to ignore the downfall of society described in that article. I don't expect to convince anyone to adopt my view, but I will continue to do my best to keep my eyes open on the topic and learn more about it.

Ned Batchelder 2:10 PM on 12 Oct 2008

@David, thanks for the link, it was certainly an interesting piece, and does show that political correctness can sometimes stand in the way of making real improvements. But I wouldn't want you to draw comparisons between the familial ills in that essay (single poor parent) with the families we're considering here (two parents of the same gender). Yes, both represent departures from the traditional nuclear family, but not all departures lead to the same end. Two committed parents, most likely middle-class, even if they are the same gender, are a very different situation than a single poor parent.

Talk about slippery slopes: isn't it a very tricky matter to decide who can and who cannot raise children?

And why is it that the discussion of gay marriage invariably leads to debates about its effect on families and children, when it really has very little to do with that? Gays are forming families now even where they cannot be married: most states allow adoption by gay couples. The changes in marriage statutes won't change the way families are formed for the most part, so why do we always end up there?

I think the question of gay marriage is really about respect for the relationship.

kudla 5:16 PM on 12 Oct 2008

Susan, touche. The perspective I was writing from was my own, of course. The only one that counts :-).

Ned, I think it's different than lack of respect. I think it's really more about fear and ignorance. How many gay couples have the bible thumpers ever even been exposed to?

Maybe at the end of the day, it's pretty much the same thing.

Tolerance is good. Intolerance is bad.

Sorry for 2 comments in the same day, but I love this kinda discussion.

Dan 9:26 PM on 12 Oct 2008

I was listening to NPR the other day and the commentator made the point that after these 3 states, there are not a lot of other states in a position to change their laws. Mainly because so many states have passed constitutional amendments banning gay marriage. You'd have to go to the Federal level to overturn those amendments, and that may not happen anytime soon.

After California, Massachusetts and Connecticut, New York would be a logical state to follow suit, but the State Senate refuses to consider the issue. Meanwhile, Governor Patterson has issued an executive order recognizing all same sex marriages carried out in other states. At some point, every NY resident who wants to marry a same sex partner is going to take a quick trip to CT and get the papers filed. I foresee a brisk business in marriage tourism if CT doesn't place bureaucratic hurdles in front of nonresidents.

Jack Diederich 8:44 PM on 13 Oct 2008

Ned, I'm far to the right of you and I think gay marriage is OK. But the fact that judges are making the law is a bad thing. Allow domestic partnerships, generally favored by legislatures and the public, to shake out for a generation and then allow the legislatures to tackle gay marriage proper. Anything else does more harm than good because it politicizes both the culture and the judiciary.

Let's not forget that gay marriage is a very new idea. When Phyllis Schlafly said in the 70s that the ERA would lead to gay marriage she was laughed at for suggesting something so preposterous. Government only got into the marriage licensing game in the first place because it was so common and agreed upon. Gay marriage will probably be common and agreed upon in a short time (by human standards) so let's wait for that.

NB, some of my best pals in my bowling league are gay. Yes, you read that right; there is even a gay bowling league at my alley but the more competitive bowlers bowl other nights.

Ned Batchelder 9:02 PM on 13 Oct 2008

@Jack, please, can you explain to me what law the judges wrote? The answer is they didn't write any: they declared that an existing law was unconstitutional. As I said above, you may disagree with their interpretation of the state constitution, but it is simply incorrect to say that they are writing laws.

Kelly Yancey 2:38 AM on 14 Oct 2008

Ned, I have no problem with gay marriage, but I do resent the fact that it only becomes an issue during election years. In fact, the fuss around gay marriage in 2004 seemed like a thinly-veiled attempt to get people to vote with their emotions rather than vote their opinions on the state of the country. I'm not the least bit involved in the gay community, but from a casual outsider's viewpoint, it sure looked like the issue of gay marriage came out of left-field to become a heated talking point in an election year.

And both sides are to blame for getting caught up in it. I can't blame pro-marriage advocates for jumping on the chance to push their cause, but I wish people would see that in doing so, they are aiding the Republican party in their campaign to push the emotion button amongst their constituents. It is a damned-if-you-do damned-if-you-don't scenario, but I think the evidence that advocates are getting played for political gain for the opposing party is overwhelming.

susan senator 6:03 AM on 14 Oct 2008

Kelly, with politicians running for office every two years, and presidential candidates beginning their campaigns only moments after a new president is elected, it is difficult for me to swallow the idea that gay marriage "only becomes an issue during election years." It's almost always an election year across this country. I think that this argument you make lacks conviction. Given this way of thinking, there would almost never be a time that would be right to bring up gay marriage. It is unfortunate that advocates "get played for political gain," but that is inevitable when big changes are afoot.

The fact is, gay marriage is a difficult issue because people are not willing -- and throughout history have not been willing -- to acknowledge social change. Look at the civil rights movement in the 60's. Not until the law of the land changed did any sort of social acceptance occur. But one thing I do know: there is a separation of Church and State in our constitution, and yet religion seems to be the main force against this particular change. That is utterly unconstitutional, no matter who your judge is.

Jack Diederich 2:15 PM on 14 Oct 2008

Ned,

Yes technically the majority discovered that the constitution already allowed gay marriage and didn't pass a law or invent a new right. Call me cynical but the idea that this constitutional right went unnoticed for 200 years until just now implies that maybe it isn't in the constitution after all.

I went and read the majority opinion, and both the dissents (one, and two - technically there is a third but it is only a "me too" paragraph). The decision was 4-3 and that the majority had to write over 80 pages to justify their opinion. In doing so they also amended the CT constitution to include gay persons to the already enumerated list (like, actually in the written constitution) of protected groups. They also had to invoke "intermediate scrutiny" instead of "strict scrutiny." The dissents mainly had a problem with the intermediate scrutiny because it opens the door for others to assert constitutional claims under the lower standard. All the dissents include the phrase "judicial fiat."

Again, I don't dislike the particular result but I very much dislike the channel. We don't need a more politicized judiciary than we already have.

Kelly Yancey 1:20 AM on 15 Oct 2008

@susan,

So you are saying that you believe it to be complete coincidence that the states that have passed gay-marriage laws happened to do so in the months preceding the 2004 and 2008 presidential elections? What didn't Connecticut pass this in 2005 when the topic was still fresh in peoples' minds? Or last year. What about 2004 and 2008 is so special to trigger states to finally take action?

Or, if you look at it a different way, what is it about 2004 and 2008 that made the opposition step aside to allow these laws to finally pass?

Do you honestly believe there is absolutely nothing significant in the *exactly* 4 year delay between Massachusetts and California passing gay-marriage laws and Connecticut finally following suite? Especially when it was such a polarizing topic in the 2004 presidential debate. I, for one, find the coincidence to great to ignore.

David Boudreau 9:37 AM on 15 Oct 2008

Yes, I suppose there are some big differences with the article I linked to and this issue specifically, but as I try to understand why proponents of same sex marriage frame the issue as one of civil rights vs. proving the downfall of society, I thought the article relevant in that sense.

Also to say that there is something to the various roles and responsibilities of the nuclear family after all. And perhaps to ask, who is really disenfranchised?

My own framing of this issue is strange to most people: Marriage is for the children, and that society has a say in the matter (re: respecting
the relationship and special designation of marriage or not). These values keep getting me back to parenting. Instead of the civil rights of the same sex partners, I'd be more concerned with the civil rights of children to both a mother and a father, and that taking priority.

Apparently the state isn't complaining when gays adopt, but it's difficult for me to accept a relationship designed for child-rearing that is not mother-father.

Paul Downs 3:06 PM on 17 Oct 2008

This is one of those issues which makes me think: "Thank God we have states." It's interesting to me that the political divisions we inherited from our colonial roots have become a marketplace of approaches to government. Since modern citizens are free to vote with their feet, we have started a market test of the costs and benefits of gay marriage. If we had to wait for the whole country to be ready, it wouldn't happen for a long, long time. Now the doubters can see it in action, which should be educational for all. My prediction: the sky won't fall, traditional marriages will be unaffected, but there will be some unintended negative consequences (although I can't think offhand what they might be right now).

3 down, 47 to go

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