Thoughts on the Iowa Supreme Court’s Marriage Decision

Posted on Categories Human Rights, Political Processes & Rhetoric, Popular Culture & Law, Uncategorized

First, let me thank Prof. Slavin for inviting me to contribute to the blog.  I shall try not to be dull, and in that effort, I begin my blogging stint with a controversial topic, the Iowa Supreme Court’s recent decision striking down the state’s ban on same-sex marriage.

My take on same-sex marriage begins with my personal experiences with same-sex couples, and homosexuals in general.  If the law treats them like second-class citizens, and my experience shows me that this is just not right, then I look to the law to make sense of why this treatment must be so.  And I cannot find the justification.

The first time I met someone I knew to be gay was in the Navy.  I met many during my service.  On our boat, the presence of gay sailors was open and notorious, and no one cared.  They did their jobs and stood their watches; nothing else mattered.  It was the same on shore.  

Another personal experience was with a particular couple.  Before my wife Tara and I were married, we were acquainted with another unmarried couple.  They were middle aged; one had chronic health issues.  They had been together for many years and took good care of each other.  It was obvious in everything they did that they were devoted to each other; that they were in love.  They were also good friends to us.

Any successful relationship between two people living out their love to each other is a good example to all.  It didn’t matter that our friends were unmarried, and it didn’t matter that they were two men.  We were unmarried by choice, still sorting through the implications of marriage.  Our friends were unmarried too, but not by choice.  Their commitment to each other was certain.  Day by day they lived out the vows they weren’t permitted to give legally—“for better or for worse, till death do us part.”  In this they did far better than many ‘traditional’ couples.  If they were guilty of a sin, it was by no means the worst: the sin of unregulated love.

Rather than harm our relationship, our friends’ good example, like those of our parents, gave us the confidence to make that lasting commitment to each other too.  Tara and I did marry—almost 22 years ago.  In our marriage, money, career, children, illness, Law School, these have challenged us.  Whom our neighbors married—or even if they were married—has never been a concern. 

So, after some 30 years of acquaintance with persons I knew to be gay or lesbian, my conclusion is “what IS the big deal?”  I try to understand the arguments for prohibiting same-sex marriages, but to me, they just don’t hold water. 

·         Marriage is for procreation.  Once maybe, but not for a long time.  Since before the Constitution, marriages between people who cannot or will not have children were considered just as legitimate as those resulting in a pack of children.  (I grew up in one of those packs.)

·         Marriage is the cornerstone of society, culture, civilization.  No argument there, but that does not preclude same-sex marriages from contributing to the stability of our culture.

·         Marriage is traditionally between a man and a woman only.  Well, not really.  But, setting polygamy aside, is it legitimate to deny personal liberties on the basis of tradition alone?  Adherence to tradition is voluntary, but the imposition of tradition is oppressive.  

·         Same-sex marriage threatens family values.   Which values are those?  Marital fidelity?  Nope.  Raising your children to be good persons?  Nope.  Keeping your family healthy and safe?  Nope.  Which one did I miss?

·         A majority of Americans oppose same-sex marriage.  I suppose so.  I know a majority opposed racial equality too.  And inter-racial marriage.  At one time a majority opposed abolitionism and enfranchising women and Catholic Presidents.  Fortunately our framers understood that individual rights (such as equal protection) are not subject to the fickle will of the majority.

·         The Framers of our Constitution didn’t intend to legalize same-sex marriage.  Probably true.  They also probably didn’t intend to legalize semi-automatic fire-arms, political action committees, NATO, law school blogs, Social Security, or Medicare. And they probably didn’t realize that sexual orientation, left-handedness, and many other character attributes are not choices, but characteristics imposed on people by both nature and nurture.  In any event, why do we suppose that the Framers intended our evaluation of this problem be cabined by their evaluations?  Unlike many modern Americans, the Enlightenment generation who founded our Nation had a deep faith in progress and intellectual development. They honored the traditions that served them well, and spurned the rest.  If they thought picking and choosing acceptable, why can’t we?

So, needless to say, I was gladdened to see that the Supreme Court of Iowa unanimously ruled on Friday that a statute prohibiting same-sex marriage violates the Iowa Constitution.

Critics have not been quiet, of course.  “While I respect an individual’s right to live his or her life as they see fit, decisions like this are better left in the hands of legislators and governors.”   (RNC Chairman Michael Steele)  Government should not tell you how to run your business, but it should be able to tell you who you should marry?  Why?

Rep. Steve King (R-IA)  condemned the decision, saying Iowa may become a “gay marriage Mecca.” In this depressed economy, when Iowans see the kind of money that people spend on marriages, they may start advertizing their new marital opportunities.

“It’s, quite frankly, a disaster.”  (Brian English, spokesman for the Iowa Family Policy Center).  This is an odd disaster: no one injured, no property damage, no harm of any kind.   This is the kind of disaster we need more of.

I am sure there are other rationales for prohibiting same-sex marriage, but they all seem to be different versions of arguments from tradition, or from religious practices, or from personal philosophies about law or culture.  Some may appear persuasive—until you think of the good people who are relegated to second-class citizenship because of tradition, state-sanctioned religious views, or personal philosophies.  The bottom line is that if my neighbors were two married men, it would not affect my marriage at all.  If they had a dog that barked a lot, that would matter much, much more.

25 thoughts on “Thoughts on the Iowa Supreme Court’s Marriage Decision”

  1. Interesting question. If you start with the realization that, eventually, marriage will most likely be allowed between homosexual couples, the real question becomes which states will position themselves to take advantage of the increased revenue afforded by these statistically wealthy citizens. Iowa has taken a big step here, which seems to be financially savvy if nothing else.

  2. Good afternoon, Sean. Your post uses the Iowa Supreme Court decision as a launching point, but then turns entirely to a discussion of whether gay marriage is an appropriate policy choice.

    Regardless of whether gay marriage is a good policy (unsurprisingly, I believe it is not), it should be a question resolved by citizens using the democratic process (I think this was Steele’s point). Marriage is a fundamental institution of our society, and if it is going to be substantially altered, that decision should be made by the people through their elected legislature, not imposed by judges using a vague equal protection theory.

    Moreover, even if courts should exercise their powers to impose gay marriage, the Iowa Supreme Court should not have interpreted the Iowa equal protection clause this way. First, the U.S. Supreme Court has not interpreted the federal Equal Protection Clause to require gay marriage (see Baker v. Nelson), and so the state supreme court is engaging in new federalism (interpreting cognate provisions of the state constitution differently than the SCOTUS has interpreted the federal provisions). Second, the court never even quoted the language of Iowa’s Equal Protection Clause, showing the court’s disinterest in the actual text of the Iowa constitution. Third, the court’s decision to use intermediate scrutiny rather than rational basis is a stretch. Fourth, the whole tiers of scrutiny method of analysis, created by the U.S. Supreme Court and adopted by state supreme courts, is totally foreign from the original meaning, intent, and context underlying the Fourteenth Amendment’s equal protection clause (see Chris Green on SSRN). Fifth, the Court’s choice to reach out and talk about the religious dimension of marriage, which was not one of the reasons for marriage mentioned by the County, shows the judges were engaged in a broader cultural agenda than just adjudicating this case.

    Whether or not gay marriage is a good thing on a policy level, we should say that this decision is activist because it replaces the will of the people with a result that the judges wanted to get to regardless of the text of the Iowa Constitution.

  3. “[T]he court never even quoted the language of Iowa’s Equal Protection Clause, showing the court’s disinterest in the actual text of the Iowa constitution.”

    What? Of course it did.

  4. Is there any justification left for continuing to ban polygamy and incestuous marriages? They each have all the same ingredients as homosexual marriages – consenting adults and loving couples. As you say, marriage is no longer about procreation (and if you were worried about the ill effects of close breeding, would you allow homosexual incestuous marriages but not heterosexual ones?), and the free choice of people should be more important than worrying about the effects on property and tax law, right?

  5. Daniel, It’s always nice to hear from you, even though we agree on so little.

    Forgive me if I was not clear; the issue of same-sex marriage is not a “policy” issue, the issue is whether it is a right. It is, and should be recognized as such. The Supreme Court has recognized the fundamental right to marriage (Loving v. Virginia) and equal protection (do you really need a cite?)

    You complain of judges imposing decisions “using a vague equal protection theory.” Why is equal protection a “vague” theory? Dr. Roger Pilon of the Cato Institute was on campus yesterday arguing that Equal Protection is violated by mandatory affirmative action. He seemed to think EP is pretty clear. I agree at least with that.

    You complain that the Iowa Supreme Court is “engaging in new federalism.” “New Federalism”? You make that sound bad. It is the job of the Iowa Supreme Court to interpret the meaning of the Iowa Constitution; they are not bound by or beholden to the U.S. Supreme Court.

    You complain that the court did not quote the text of their own EP Clause. They did quote it. In the slip opinion it is on page 19:

    “B. Legal Tests to Gauge Equal Protection.

    The foundational principle of equal protection is expressed in article I, section 6 of the Iowa Constitution, which provides: “All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” FN 1

    Further: Quoting the text is irrelevant, following the Law and honoring its intent is what matters and is what the court did. In comparison to this, we might recall the Slaughter House decision, or D.C. v. Heller, in which the relevant texts were quoted, and then gutted.

    I have to admit your comments on “tiers of scrutiny” confuse me. You object to the Iowa Court’s use of intermediate scrutiny instead of the more deferential rational basis, then condemn the whole idea of “tiers of scrutiny” method. It may be this entire scheme of levels of scrutiny are improper (at least Chris Green says so), but apparently there are nine people in Iowa who don’t agree with Chris.

    It is ironic to read criticism of the court’s recognition of the religious aspect of this controversy; the religious aspect is the only thing that approximates a rational objection to same-sex marriage. No court can properly adjudicate a case like this without discussion of all its dimensions. One may or may not agree with their dicta in this area, but that does not make their comments improper.

    Finally, individual rights are not supposed to be subject to the majority will. No majority can decide to abrogate an individual right (such as the right to equal protection) without the burden of changing the laws that protect that right.

    In any event, Daniel, I hope you are thriving in Washington.

    FN 1. http://www.judicial.state.ia.us/Supreme_Court/Recent_Opinions/20090403/07-1499.pdf

  6. Tom,

    Concerns about polygamy or incest are irrelevant to the question of same-sex marriage. If there is a good reason to ban them, they should be banned. If there is not …

    One might note of course that the Old Testament did permit polygamy. Whether the New Testament permitted it is controversial: is polygamy one marriage with more than two people? Or is it when one person is in two or more simultaneous marriages?

    In any event, individual rights are not trumped by amorphous fears about where to “draw the line”. Drawing lines is part of life.

    Take Care.

  7. You’re right Tom, I stand corrected. I skimmed the decision, circled the “see” citation on page 12, and missed the quote on page 19.

    Travis, actually, a recent report from a think tank that specializes in gay issues at UCLA concluded that “lesbian couples are more likely to be poor than married heterosexuals, and children of same-sex parents are twice as likely to live in poverty as those of traditional married couples.” (USA Today). Second, I think your realization premise fails to fully account for the fact that 30 states have constitutional amendments on the matter.

    Tom, I think you make a good point – nothing in this opinion prevents other kinds of marriages as long as love is present. A number of LGBT and allied scholars and activists (including a number of prominent LawProfs like Chai Feldblum and Robin West from Georgetown, Nancy Polikoff from American, and Michael Yarbrough and Kenji Yoshino from Yale (though the latter is now at NYU)) released a statement in 2006 called “Beyond Marriage,” in which they called for legal recognition of “[c]ommitted, loving households in which there is more than one conjugal partner.”

  8. Daniel and Tom,

    Of course you notice that nothing in the Iowa Court’s opinion endorses “other kinds of marriages”; they were not at issue. Recognizing same-sex marriage does not lead necessarily to these others any more than recognizing mixed-race marriages or marriages where children are not desired. These “other marriages” must rise or fall on their own.

  9. Dan,

    Interesting point on the study. But does it take into account the poverty ratio between single homosexual individuals and those same individuals once they become couples? I am not sure and I have not read the study, however, I would imagine that financially two contributing individuals could amass more net wealth than someone going at it alone. Moreover, I would imagine that two individuals sharing benefits, etc., could amass more wealth and be in a better position to care for a child in a purely economic sense. In earnest, my premise was purely hypothetical, but if you accept it you cannot deny the economic realities.

    Best,

    Travis

  10. “Is there any justification left for continuing to ban polygamy and incestuous marriages? They each have all the same ingredients as homosexual marriages – consenting adults and loving couples.”

    I’m not going to dispute the point you’re making on polygamy; I’m sure there’s some argument to be made against it, but for the moment I’m not sure I can come up with a compelling argument. But as to incest, I can come up with three major points off of the top of my head that distinguish incestuous marriages from homosexual ones:

    1.) They often spring from childhood incest: I don’t have firm statistics I can cite to at the moment, but in every case I’ve heard of where two people have considered an incestuous marriage, the incest began prior to one party reaching the Age of Consent. Assuming such is the case, I wouldn’t find it unreasonable to suggest that allowing incestuous marriages would increase the possibility of this happening.

    2.) Issues of procreation still exist: Despite marriage not being ABOUT procreation, the fact remains that — unlike what would be the case for homosexual couples from a pure biological standpoint — incestuous couples still face the same risk of giving birth to a child with genetic defects as they do now. Short of ordering them not to procreate (which the State can’t do), I don’t see how you avoid that risk.

    3.) It’s still a societal taboo: I stand firm in my belief — though I know not everyone agrees with me on it — that the courts should not be going beyond what society is ready to accept. Gay rights are simply not the kind of divisive issue they were even 10 years ago, despite what political parties would have us believe. Incest, on the other hand, is still widely reviled. So, I mean, unless society changes their views massively on incest — and I don’t believe they will — to allow incestuous marriages would be to contradict society’s majority opinion.

  11. “Is there any justification left for continuing to ban polygamy and incestuous marriages? They each have all the same ingredients as homosexual marriages – consenting adults and loving couples.”

    I would disagree that polygamous marriages involve consenting adults and loving couples. Many of those “marriages” are forced upon young girls.

  12. I don’t want to discourage the conversation about polygamy or incest (yikes!) but I do want to remind all that same-sex marriage is an entirely different thing.

    It is NOT the idea of same-sex marriage that “opens the door” to these “other marriages”; it is the very idea of marriage –- any marriage -– which does that. Whatever rights one person has all others will want, too. There is this pesky notion of equality out there . . . .

  13. Let me try to deal with the string of comments in order as best I can.

    Obviously, Loving is an important touchstone in the debate over gay marriage. There are scores of law review articles dedicated to Loving‘s implications for the gay marriage debate, so I’ll limit myself to noting that SCOTUS decided Baker v. Nelson after they decided Loving, and in doing so they upheld a state supreme court decision that explicitly considered and rejected Loving as a basis for a right to gay marriage.

    I do make new federalism sound bad, and intentionally so. To the extent that the texts are different (i.e., the Iowa EP Clause is written very differently than the 14th Amendment EP Clause), the court should look at them differently. However, in this case, relying on its previous precedents, the Iowa Supreme Court adopted the SCOTUS EP analysis wholesale, totally disregarding that difference.

    I don’t think you can “follow the law” without looking closely at the text of the law. And I’m an original public meaning textualist — the framers’ intent is interesting, but it isn’t determinative. What we have is the words they gave us. Moreover, if you told the framers of Iowa’s Constitution that 152 years later, the Equal Protection Clause would be used to order the state to recognize marriage between two men, I think they would balk.

    I happen to agree with Chris Green that this entire tiers of scrutiny thing is a far departure from the original intent behind the 14th Amendment’s EP Clause. But if we are going to use that framework, I think the Court stretched to get to intermediate instead of rational basis. (I note that the Massachusetts court used rational basis in Goodrich).

    One should always be wary of courts issuing opinions on unbriefed topics. Certainly here the court’s little essay on religion showed even more clearly that the court had a broader agenda than deciding the case before it.

    I agree that majorities cannot abrogate fundamental rights without changing the fundamental law. However, sometimes courts say things are fundamental rights that aren’t, and in that instance the people must amend the fundamental law to correct the courts’ screw-up.

    The polygamy discussion is important; courts should always write opinions wondering how the language might be used to justify some future result in a future case. If “love makes a marriage,” then there’s no way to draw a line that separates two-person marriage from multi-person marriages.

    Andrew, I think your (1) is no more or less a rational basis for a law than the justifications the County offered for traditional marriage in this case. Your (2) is true, but see Professor Papke’s discussion of State v. Oakley. Your (3), well, I disagree that gay marriage has stopped being socially taboo: 30 states have passed marriage amendments now, some by pretty overwhelming margins. Polling continues to show that a majority of Americans oppose gay marriage. Certainly a majority of Iowans disapprove: a Des Moines Register 2008 poll found that 62 percent of Iowans wanted one man, one woman marriage, while just 32 percent supported same sex marriage.

    As for your last comment, Sean, I have two thoughts. First, gay marriage breaks the long-held expectation that marriage is one man, one woman, and thus it does open the door to other alternative relationships in a way that was unavailable before (certainly at least practically). Second, on equality, let’s remember that all citizens have an equal opportunity to get married as long as they meet certain requirements the state sets for marriage, including opposite-sex partners. What gay citizens insist on is that their relationship be treated equally.

  14. Daniel,

    I admit I have not read Baker v. Nelson yet, much less the underlying State Court decision. But since it is clear that courts get little deference on this thread, I can speculate that the Supreme Court’s decision resulted from either sound reasoning or the Court advancing its social agenda. I notice you did not clearly allude to any particular sound reasoning so at this time we both know where my suspicions lie.

    As your comment about Chris Green notices, the tiers of scrutiny are a controversial topic in and of themselves, something I’m tempted to include in one of my blog posts this month. In such a muddled area of law, each Court must have discretion in this matter. Applying analysis based on the Fourteenth Amendment’s Equal Protection clause is legitimate because, although the text of the Iowa Equal Protection clause is distinct, its effect is essentially the same, so much so that we can refer to it as Iowa’s “Equal Protection clause” even though it is so different from the Fourteenth’s.

    I agree we must look closely at the text of the law to determine its meaning. However, looking at the text of the Iowa Equal Protection clause, it is silent on the topic of same-sex marriage. Would the framers of that clause have balked at the idea 152 years ago? I don’t know, but as you write, “the framers’ intent is interesting, but it isn’t determinative.” The text supports the opinion of the Iowa Court. The framers’ intent is not controlling.

    The Iowa Court’s dicta on religion and marriage is the kind of thing courts have been doing ab initio; too much can be made of this.

    “Sometimes courts say things are fundamental rights that aren’t.” Surely that is true, and sometimes they say things aren’t that are. Damned if they do, damned if they don’t. The issue before us is: was this determination an error? So far, I’ve not seen a good reason to say it was an error, and I believe the Iowa Supreme Court has earned as much deference to their learned opinion as any other court deserves. If the people of Iowa disagree, doing something about it is their burden.

    Courts should always write opinions with a mind toward unintended consequences, but again those consequences do not trump other people’s fundamental rights. Marriage is far more than just love, it is a desire and a commitment to an ongoing, perhaps even life-long, relationship that is exclusive to those in the marriage, whether they are different sexes or the same sex.

    Assuming that polygamy should be banned, then there must be some sound reason to do so. If the only reason we ban it is because we “drew a line” and are unwilling to justify the placement of that line, then in fact the line is unjust; its enforcement is a demonstration of raw power, not morality or justice or sound reasoning.

    The irony of this is of course, that same-sex marriage is not the gateway to polygamy or incest, because same-sex marriage is a relatively new phenomena while polygamy and incest are very ancient indeed. The ancient antecedents of polygamy and incest are uncountable. Same-sex marriage is a novel concept.

    With regard to “the long-held expectation that marriage is one man, one woman,” I have to note that your formulation is NOT “long held.” The long held expectation was that marriage was between one man and one or more women. In American history the long-held expectation was that a marriage was between two unrelated adults of opposite sex and the same religion and same race. There was a lot of flexibility about when adulthood began, and some flexibility on “unrelated.” Only in the last half century have we dropped the “same religion and same race” expectation. All same-sex marriage does is drop the opposite sex qualifier, leaving the “two unrelated adults” qualifier intact.

    More importantly, these kinds of “expectations” are not a just ground for infringing on individual rights. My marriage should not be subject to your expectations. Period. And if my marriage upsets your expectations, that does not constitute a harm any more than my choice of neckties.

    Your comment that “all citizens have an equal opportunity to get married as long as they meet certain requirements the state sets for marriage, including opposite-sex partners” parallels the logic rejected by Loving (rejecting the logic that we all have a right to marry someone of the same race). It also parallels the logic of Bowers, which the Supreme Court rejected in Lawrence, regarding sexual privacy.

  15. The Iowa Supreme Court decision affirms what I think has been evident to many for a long time: our judicial system has gone mad, and it, along with the legal profession in general, is in great need of repair. What madness! What hubris! Marriage is first and foremost a natural institution which — at least in societies where good will reigns — is a natural consequence of the obvious physical and functional complementarities between the male and female members of our species, which complementarities are there in large part to provide for the continuation of our species. Civil marriage (or religious marriage for that matter) is concocted to bring order to and reinforce the natural institution. NO government nor branch of government has the power or authority to redefine that institution. It is an error to regard marriage as merely a contract like any other, which the state may redefine at will.

    What we are seeing here is a misuse of the courts by a segment of the population, aided and abetted by a judiciary run amok and a legal profession that has lost its anchoring in natural realities. The court decision on page 9 brings the true matter to the fore: “Yet, perhaps the ultimate disadvantage expressed in the testimony of the plaintiffs is the inability to obtain for themselves and for their children the personal and public affirmation that accompanies marriage. ”

    Indeed: the homosexual lobby has been trying to force same-sex “marriage” on us precisely to attempt to force the rest of us to affirm as “good” something which is inherently evil: a relationship built on sexual misbehavior, in this case sodomy or mutual masturbation. This is what this is about. It is also a nearly inevitable consequence of a societies embrace of deliberately infertile sexual activity.

    Indeed, the courts have crafted a new “right:” Pages 30-31: “It is true the marriage statute does not expressly prohibit gay and lesbian persons from marrying; it does, however, require that if they marry, it must be to someone of the opposite sex. Viewed in the complete context of marriage, including intimacy, civil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. ”

    So, the court feels that although homosexuals may, in fact, civilly marry persons of the opposite sex, since this would not provide the “intimacy” a homosexual seeks, the court must overturn the clear intent of the people and of the legislature, and sanity, in order to force the state to facilitate the search for homosexual intimacy. Thus the doctrine of equal protection is distorted and abused.

    This is simply silly. It is wrong. It is an affront to the very concept of marriage. It is an affront to those who love the law. SHAME ON YOU, “Justices” of the Supreme Court of the State of Iowa. SHAME ON YOU, all of you, especially in the legal profession, who seek to rationalize this sort of thing.

  16. Richard,

    I can tell that you feel very strongly about this question, and I do respect that, and your right to argue your point of view. That said, I can only comment that I and many disagree. That may be madness, or seem so anyway, but I think it is not. Hubris? No.

    You describe your view of marriage and its purpose quite passionately. Unfortunately for you, we live in a nation that (in theory) values freedom, including the right of others to have a contrary understanding of what marriage is about. That freedom does NOT obligate you to be silent about something you believe is wrong, but it does obligate all of us to not impose our personal opinions on unwilling others. That is not Hubris. It’s Liberty.

    You comment that the judiciary and the legal profession has “lost its anchoring in natural realities.” The natural reality is that some people are born or become by natural events gay or lesbian. Whether that is good or bad is irrelevant, it just happens. Gays and lesbians as such do not harm society; I think they enrich it but at least they don’t harm it. So there is no natural reason to deny them the same rights and liberties other persons enjoy. This includes marriage.

    Richard, no one can force you to affirm something that you don’t approve of. I can think of some “traditional”, child-producing marriages that I don’t approve of. I keep those to myself.

    You believe that homosexuality is “inherently evil” and “sexual misbehavior”. Again, I disagree. I note that Jesus never said a word about it (and in the first century Greco-Roman world, it was common).

    Acting on the “clear intent” of the Framers of the Iowa Constitution is less simple than you’d have it be. Given that their reasoning to deny equal protection to gays and lesbians (in violation of the equal protection law they wrote) was based on religious beliefs (which violated their laws protecting religious liberties) or on their assumption that homosexuality was merely a choice (which is contradicted by the facts). Honoring the intent of people acting 150-plus years ago on an improper and factually erroneous rationale is madness.

    I accept that you strongly disapprove of my position. But I am not inclined to concede a point I strongly believe in. I am confident that defending the rights of everyone is morally correct. I feel no shame about this whatsoever.

  17. “Unfortunately for you, we live in a nation that (in theory) values freedom, including the right of others to have a contrary understanding of what marriage is about. ”
    FALSE. My point is that marriage is a fixed, natural institution, and not subject to redefinition by the state any more than is the value of Pi. For a court (or any other institution) to think it can do this is certainly hubris.

    “…but it does obligate all of us to not impose our personal opinions on unwilling others. That is not Hubris. It’s Liberty.”
    FALSE. Positive law is EXACTLY one set of people imposing its opinions on others. To say that we must never do so is to say that we should have no laws governing behavior or defining anything.

    “You comment that the judiciary and the legal profession has “lost its anchoring in natural realities.” The natural reality is that some people are born or become by natural events gay or lesbian. Whether that is good or bad is irrelevant, it just happens.”
    IRRELEVANT. No one has argued that were not homosexuals in earlier times. No one is arguing that the existence of individuals with SSAD is in itself harmful to society. I do note that there is an interesting correlation between homosexual inclination and certain forms of talent which certainly benefit society.

    “So there is no natural reason to deny them the same rights and liberties other persons enjoy. This includes marriage.”
    CONFUSING/MISSING POINT. This assumes that “marriage” is a possibility; I am arguing that it is not. What is not possible cannot be a right.

    “Richard, no one can force you to affirm something that you don’t approve of.”
    FALSE. By creating this legal fiction of same-sex “marriage” and claiming that it is a matter of “equal protection,” the framework is being set up to force institutions, private and public, as well as individuals in some circumstances to play along with the game that “married” same-sex pseudo-couples are actually married, when, in fact, such a thing is not even possible. If you think there will be no coercion, then you are very naïve.

    “Acting on the “clear intent” of the Framers of the Iowa Constitution is less simple than you’d have it be. Given that their reasoning to deny equal protection to gays and lesbians (in violation of the equal protection law they wrote) was based on religious beliefs (which violated their laws protecting religious liberties) or on their assumption that homosexuality was merely a choice (which is contradicted by the facts). Honoring the intent of people acting 150-plus years ago on an improper and factually erroneous rationale is madness.”
    FALSE ASSUMPTIONS:
    FRAMERS: I seriously doubted that the framers of the Iowa Constitution (if that is the group to which you are referring) were intending to “deny equal protection” to homosexuals. Such a statement on your part would be slander if it weren’t uttered by someone such as yourself who apparently has been steeped in the curious thinking of today’s legal establishment. It would likely have been for them then, as it is for me now, a question of definition.
    RELIGIOUS BELIEFS: Your implication that a law based on religious belief is somehow not valid is not tenable. Almost all law regarding behavior is based on religious beliefs. Our country’s entire legal system is based on religious beliefs. This idea that the religious bases of law must somehow be purged is a bit of fiction of fairly recent vintage.
    CHOICE/NON-SEQUITUR: homosexual inclination probably is not a matter of choice. Homosexual behavior (as for heterosexual behavior) IS. The nature/nurture debate is irrelevant. The behavior is wrong in any case.
    INTENT: The place to alter intent, which such is possible, is the legislature and the ballot box. It is not something which a court should take onto itself usually. Certainly not in a matter in contention, certainly not to the point of attempting to overturn something which has been part of the framework of society for millennia. This is hubris.

    “You believe that homosexuality is “inherently evil” and “sexual misbehavior”. Again, I disagree. I note that Jesus never said a word about it”
    BAD EXIGESIS. Jesus didn’t say much at all that was recorded. I don’t recall him condemning moving property line markers either. The lack of record of this does not make it right. This is question of natural law. As you appear to be at a Roman Catholic institution, I trust you can find someone there who can explain the difference between natural law, divine positive law, civil law, and ecclesiastical law, and will not attempt to do so here. Suffice to say that homosexual behavior, adultery, fornication, contraceptive sexual relations (even within marriage), masturbation, etc. ad nauseam, are all affronts to the inherent dignity of Man as they all involve, one way or another, to one degree or another, a perversion of the generative faculties.

    “I am confident that defending the rights of everyone is morally correct. I feel no shame about this whatsoever.”
    NON SEQUITUR; Again, you are assuming that there is a “right” involved here. I say there is no such right to defend.

    Conjugal rights and duties are only for duly married couples. No one
    else has conjugal rights or duties. Even if the state does not penalize those who engage in illicit sexual activity (and there are
    good reasons for the state not to in many cases), this does not
    create a “right” which others must respect. The idea that people have a “right” to engage in any sexual activity in private is a legal and social fiction of extremely recent vintage.
    Only adults who are of the opposite sex and who have the mental capacity to understand and live the commitments involved in marriage are capable of marriage, and can claim any right to do so. (In the west, we have LONG understood this to involve ONE male and ONE female.) Again, civil and religious marriages can only serve to support and bring some order to the natural institution; they cannot redefine it.

    This act of judicial aggression — by which such a redefinition is attempted — by the Iowa court, and other courts that have attempted this, are criminal. The legal profession has much to be ashamed of.

  18. “Honoring the intent of people acting 150-plus years ago on an improper and factually erroneous rationale is madness.”

    Are you picking on Mormonism in particular or Christianity in general?

  19. Richard, you say “My point is that marriage is a fixed, natural institution, and not subject to redefinition by the state any more than is the value of Pi.”

    How is marriage a ‘fixed, natural institution’? The concept of marriage has changed drastically over time and geography. While humans may be born with a natural inclination to seek out companionship and even someone with which to procreate and/or raise children, the actual state of marriage is not something that just naturally happens. No one in the history of humanity has simply woken up one day and grown a marriage.

    Marriage is something invented by various societies and with differing definitions. In some times/places, marriage was simply an economic or political contract. In some cases, the woman was merely a piece of chattel, something akin to a few head of cattle or bag of coins, offered to the groom in payment for one service to her family or another. In yet other instances, marriage involved more than two individuals. You need only to look to the Old Testament for several such cases.

    For those and several other reasons, then, your argument that ‘marriage’ is ‘fixed’ and ‘natural’ are completely erroneous. Humanity has, and will continue to, define for itself what marriage is and should be. The concept evolves, as it should, as our understanding of equal protection and fairness evolves.

    You then go on to state that you think “Almost all law regarding behavior is based on religious beliefs. Our country’s entire legal system is based on religious beliefs.”

    This completely and rather condescendingly dismisses, out of hand, the possibility that people can be moral and recognize/create a sound legal system without adhering to any religious or spiritual beliefs.

    I would argue that much law regarding behavior is based on ideas of personal and societal safety and well-being. For those penning the actual laws, those ideas may come from a place of religion or they may simply come from a place of common sense and goodwill. To argue that our country’s entire legal system is based on a religious framework is to completely discount the hard work and thoughtful analysis provided by a great many non-religious individuals (or religious individuals working in a non-religious capacity) and organizations. And that, quite frankly, does us all a great disservice.

  20. Richard;

    Your comment about “redefining … the value of Pi” is most helpful to me, but for you, not so much. As you note, no court or legislature can change the ratio of a circle’s circumference to its diameter (which ratio is the definition of Pi). No matter what man-made laws are created, circles remain unaffected.

    However, circles are not the only geometric shapes in nature, there are also triangles, squares, rectangles, etc. Recognizing the existence of these other shapes does not alter nor disrespect circles.

    In nature, social creatures (as humans are) relate to each other for many reasons. Some individuals develop relationships for companionship, for safety, for economic benefit, for procreation, or other reasons I’ve omitted. Some relationships are built on just one purpose, some on several. All these relationships are natural. All of them. A sexual relationship is natural, whether hetero- or homosexual. Like geometric shapes, recognizing one kind of relationship does not alter nor disrespect others. Noticing that the area of a square is the product of height and width does not challenge the fact that the area of a circle is the product of the square of the radius and Pi.

    You wrote, “marriage is a fixed, natural institution, and not subject to redefinition by the state any more than is the value of Pi.” Surprisingly, I agree for the most part. Nature does not give effect to human laws changing the value of Pi. Circles remain circular regardless. Similarly, in those States and nations wherein marriage has been recognized to include same-sex marriage, traditional marriages remain as they were.

    You see, Richard, marriage in all its many forms is a natural institution. These natural forms include same-sex marriages. Recognizing the legitimacy of same-sex marriages is equivalent to recognizing that squares are as legitimate as circles.

    The strongest proof that same-sex marriage IS possible is the length and passion of your comments. If same-sex marriage were a ridiculous idea, we would react to it with mirth, as we react to the idea of human laws changing the value of Pi or declaring the Earth flat. The vigor and seriousness of your argument proves that you regard same-sex marriage as possible and perhaps threatening. Your many and CAPITALIZED words betray you.

    You wrote, “What is not possible cannot be a right.” True. However, same-sex marriage is possible. Therefore it can be a right, and I argue it is. More precisely: marriage between two unrelated adults is a right. Same-sex marriages and “traditional marriages” are merely natural variants of marriage. Recognition of same-sex marriage has no adverse impact on “traditional” marriages (if it has any impact at all).

    You wrote, “If you think there will be no coercion, then you are very naïve.” The only coercion is that which all individual rights imply: the legal requirement of “institutions, private and public, as well as individuals,” to not obstruct the rights of others. You and others who do not approve of same-sex marriage need not express any approval. No religious denomination will be required to bless them. What would be compelled is to not interfere with other people’s free exercise of their rights, rights to speech, religious practice, association, marriage, or other rights.

    You wrote, “Your implication that a law based on religious belief is somehow not valid is not tenable.” Since I did not imply that, I need not defend the idea. Laws based on religious beliefs alone that require others to give up their rights are invalid barring a non-religious purpose. Valid statutes can be based in part on religious beliefs and in part on other non-religious purposes.

    You wrote, “Homosexual inclination probably is not a matter of choice. Homosexual behavior (as for heterosexual behavior) IS. … The behavior is wrong in any case.” Regarding homosexual behavior invariably wrong is entirely a religious idea. There is no secular or natural reason to regard it wrong.

    Further, if we allow heterosexuals to “choose” to act on their natural inclinations then denying the same right to comparable homosexuals is an injustice and an infringement of their rights serving no purpose but to enforce a religious rule on those who do not share it.

    You wrote, “The lack of record of [Jesus condemning homosexuality] does not make it right.” True, but it does contradict the emphasis placed on homosexuality as if it were the greatest of all sins. The sins that Jesus did condemn repeatedly and at great length seem to have escaped our attention while we fuss over something Jesus didn’t think important enough to mention.

    You wrote, “The idea that people have a ‘right’ to engage in any sexual activity in private is a legal and social fiction of extremely recent vintage.” Very true. So are the novel ideas of racial equality, the rights of women, the end of slavery…

    You wrote, “The legal profession has much to be ashamed of.” No doubt this is true. But seeking the recognition of same-sex marriage is not one of those things.

    Richard, you are entitled to regard marriage as you choose. You do not have the right to require others to act in accordance with your ideas of marriage. All the Iowa Court did was set people free of the obligation to pretend they agree with other people’s ideas. If that’s criminal or shameful, then count me in.

  21. John,

    Neither particularly. I never even thought about Mormonism.

    Why do you ask? Do you think Mormonism in particular or Christianity in general are based on improper and factually erroneous rationales? That is certainly not my opinion.

  22. Dear Emily,

    “Richard, you say “My point is that marriage is a fixed, natural institution, and not subject to redefinition by the state any more than is the value of Pi.”
How is marriage a ‘fixed, natural institution’? ”

    Human male and female of normal constitution mate within a stable relationship with the strong possibility of producing offspring in the natural way, for which they, by nature, have responsibility. This reality, which is the very core of marriage, is built into our very bodies. This is NOT a social convention of the product of human genius. The various social inventions surrounding and regulating marriage, which ARE the product of human genius, are not of the essence nor defining of marriage.

    NO two human males of normal constitution can truly mate with each other. No two human females of normal constitution can truly mate with each other. No simulated mating of people of the same sex can ever produce offspring in the natural course of things, for there is none.

    Attempts by our legal system to attempt to force us into a game of make believe wherein we must pretend that people of the same sex are somehow “married” would be laughable if it were not such a danger to our liberty.

    “You then go on to state that you think “Almost all law regarding behavior is based on religious beliefs. Our country’s entire legal system is based on religious beliefs.”
This completely and rather condescendingly dismisses, out of hand, the possibility that people can be moral and recognize/create a sound legal system without adhering to any religious or spiritual beliefs.”

    In regard to particular individuals, no. There are plenty of moral atheists out there. In regard to system, probably so. I truly do not think it is possible to create a sound legal system (of the sort that most Americans would find suitable at least) in a religious vacuum. I find that irreligious individuals who claim one can very often have very passionate ideals that they have absorbed from our particular religious milieu. This will have to be a different discussion, though.

    Rich

  23. Dear Sean,

    Indeed, a circle remains a circle, and Pi remains Pi, regardless of what Man says about. Indeed, there are many other geometric figures. However, I hear that in the far off land of Awoi, the Head Puba issued a decree that all three-sided figures are now to be known as “circles,” as well as the figures formally known as the pentagon, and to make matters even more confusing, the dodecahedron. The Pubaic Commission for the Stamping Out of Geometric Discrimination has created penalties for those who do not refer to or treat these other geometric figures as “circles.” The Awoi Public Education Commission has indicated that public school teachers who do not follow the new policies will have their licenses pulled. Private schools and churches which continue the discriminatory practice of refusing to call these other geometric figures “cirlces” or refuse to hire employees who do, will have their tax-exempt status revoked, which will, of course, mean that those serving poorer populations will have to close as they will not be able to pay their taxes. [The latter being to the delight of the Awoi chapters of the International Planned Pseudo-Geometers Federation and allied institutions.]

    Of course, as the years roll by, it will be difficult for anyone in Awoi to talk about “circles” in the former way as the meaning of the word will eventually change, and it will become difficult to express the concept which had been so easily encompassed with the word “circle” previously.

    “A sexual relationship is natural, whether hetero- or homosexual.”
    Wrong. Homosexual behavior [simulated copulation] is certainly FOUND in nature, but in most species this is by way of malfunction. In Man it certainly is, as the individuals of our species are capable of reflection and of comparing internal urges to an external standard and willingly (i.e., without conditioning) behaving AGAINST our urges. This capacity may be unique among creatures on Earth.

    “The strongest proof that same-sex marriage IS possible is the length and passion of your comments. If same-sex marriage were a ridiculous idea, we would react to it with mirth, . . .”

    No, the length and passion of of my remarks are from frustration that so many in the legal profession regard this as anything other than a ridiculous idea. (See my response to Emily.) This is [yet another] threat to liberty coming from the sexual revolution.

    “The only coercion is that which all individual rights imply: the legal requirement of “institutions, private and public, as well as individuals,” to not obstruct the rights of others. You and others who do not approve of same-sex marriage need not express any approval. No religious denomination will be required to bless them. What would be compelled is to not interfere with other people’s free exercise of their rights, rights to speech, religious practice, association, marriage, or other rights.”

    Yeah. Sure. I have a friend who is a pharmacist who was fined $20,00 by the LRB because he refuses to dispense contraceptives, a product of his professional and ethical judgement. E-Harmony has already been compelled to have a “matching-making” service for homosexuals under a threat of lawsuit. We will be required to re-engineer our public and private institutions to act out the pretense that these “marriages” are real. This is substantial and unacceptable coercion.

    “Regarding homosexual behavior invariably wrong is entirely a religious idea. There is no secular or natural reason to regard it wrong.
” (et seq.) See my response to Emily. “Thou shalt not steal” is also a religious idea.

    “You wrote, “The lack of record of [Jesus condemning homosexuality] does not make it right.” True, but it does contradict the emphasis placed on homosexuality as if it were the greatest of all sins. The sins that Jesus did condemn repeatedly and at great length seem to have escaped our attention while we fuss over something Jesus didn’t think important enough to mention.
”

    I doubt that it was an issue in the milieu that Jesus moved in. In any case, we do not know much of what Jesus said. There is a great “fuss” about many things, in case you haven’t noticed. Intra-uterine murder (abortion) has been a major fuss since about 1970, especially after those acts of judicial aggression known as Roe vs. Wade and Doe vs. Bolton in 1973. It happens that the more recent examples of judicial aggression have to do with attempts by social radicals to force us to accept homosexual activity as something good and natural via judicial decree. I regard this as less of a crime than the abortion decisions, which, after all, have resulted in the deaths of millions of innocents. [This is something of which the legal AND medical professions can be VERY ashamed. The same-sex marriage nonsense pales in comparison.]

    “You wrote, “The idea that people have a ‘right’ to engage in any sexual activity in private is a legal and social fiction of extremely recent vintage.” Very true. So are the novel ideas of racial equality, the rights of women, the end of slavery . . . .”

    Racial inequality is hardly a universal phenomenon. What we witnessed in North America is a consequence of the sad reality of slavery. Speaking of which, slavery had been a contested institution for quite some time. It was in such contention that this led to the “right” of states to import slaves being protected — until 1808? — by our beloved federal Constitution well before the freedom of religion or the rights of press, assembly, and bearing of arms were. Led by religious people who sought to impose their quaint values on greedy (and, at times, also religious) people who profited by slavery, the abolitionist movement eventually had their very religious values — which served little secular purpose [the nation could have survived with slavery, and could have continued to live the happy hypocrisy] — written into law. The women’s rights movement started quite some time ago (I don’t know, but I suspect that in the west this really took off with the discovery of the ovum circa 1850.), and it took some time before adjustments to law were made principally using the normal channels: legislative initiative.

    In any case these things you cite are certainly not in the same class as what has happened with sexual revolution. They certainly have more logic behind them (for the most part) than the sexual revolution, which seems to be based mostly in “I WANT.”

    “You do not have the right to require others to act in accordance with your ideas of marriage. ” On the contrary: I have as much right as anyone else to help form the laws of this land, and I will do so. I judge that the redefinition of marriage is bad public policy, and will do what I can (in the context of the other battles to be fought and the rest of life to be lived) to see that this is not carried out. We are supposed to be living in a republic, not a kritocracy.

    “All the Iowa Court did was set people free of the obligation to pretend they agree with other people’s ideas.” On the contrary, the court has begun the construction of yoke which the judiciary plans to place on us all. That you approve of this being done — especially by court fiat — should be a source of shame to you, and, one day, I think you will realize this.

  24. Emily,

    Please forgive me as I post comments to Richard.

    Richard, you use the word “marriage” as if it were synonymous with “procreation” but as has been discussed at great length in this and other posts, that is not and never has been so. Human cultures have always recognized the existence and propriety of non-procreative marriages, whether by intent or by circumstances. The reality of procreation is built into our very bodies, but marriage is not. Marriage is an invention.

    Marriage is a human, usually legally defined relationship. There is no such thing as a natural meaning to marriage; there are only human inventions of marriage which are justifed by reference to nature. These inventions are not “natural” anymore than wedding ceremonies are.

    Richard, you wrote, “Attempts by our legal system to attempt to force us into a game of make believe wherein we must pretend that people of the same sex are somehow “married” would be laughable if it were not such a danger to our liberty.” This refers to another topic discussed at length here and elsewhere. Legal recognition of same-sex marriage for others represents NO danger to your liberty. If it does, you haven’t bothered to describe it. No one else really has either. On the other hand, BANNING same-sex marriage is a substantial burden on the Liberties of gays and lesbians; it thwarts the natural human need for fairness, freedom, and dignity.

    Richard, you wrote, “There are plenty of moral atheists out there. … I truly do not think it is possible to create a sound legal system … in a religious vacuum.” It probably is not possible to create a sound legal system in a MORAL vacuum, but moral imperatives span religious distinctions. Morality and religion are not the same things.

    When religions promote morality among their members, they act properly. When people disagree about the moral character of religious practices, then religions impose their practices on non-members at the price of both morality and liberty.

    Restrictions on same-sex marriage are instances of religious practices. Imposing on an unwilling religion a requirement to endorse same-sex marriage would be immoral and oppressive. Imposing on an unwilling religion a requirement to not interfere in other people’s marital choices is both moral and necessary for promoting religious liberty. Imposing on unwilling persons a ban on same-sex marriage is both immoral and oppressive.

  25. My apologies to all for my bad typing skills. When my brain attempts to think two things simultaneously, it sometimes results in some gibberish coming out of my fingers or mouth. I am not yet aware of any method of editing posted remarks.

    Dear Sean,

    In your most recent post, you started off with the assertion that there is no such thing as “natural marriage,” and that marriage is not synonymous with procreation.

    I have indeed read an understood the assertions that there is no such thing as natural marriage. I do not “buy” these assertions, and continue to assert the contrary.

    I have also NOT said that marriage is synonymous with procreation. I am attempting to express that natural marriage is a consequence and result of our sexual nature and the manner in which we procreate and care for offspring. Natural marriage has the PURPOSE of providing an advantageous means of continuing the species by raising up children in a stable environment. Natural marriage also has the additional FUNCTION of the mutual support and care of the direct parties to the marriage, which function continues even if no children actually happen to arise.

    I do think that if we were not sexual beings and reproduced in some other way, there would be no marriage at all as we understand it.

    Again, I assert that the human inventions and restrictions surrounding marriage (such as convents, legal relationships, taboos against adultery, (in some cases) enforcement of monogamy, enforcement of spousal duties, etc.) — which you insist on fully equating with marriage — are only accessories to something which already exists.

    This differing opinions may represent an impasse.

    “Legal recognition of same-sex marriage for others represents NO danger to your liberty. If it does, you haven’t bothered to describe it. No one else really has either.”

    Actually, I think I did a good job of describing this, and responding to other issues you raise here, in my prior post to you, which you may have overlooked as you were responding to my post to Emily.

    I will wait to see if this is the case (or not) before responding further to your most recent post.

    — Rich

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