Mass Supreme Court Ruling legalizing gay marriage

[peeplj]

Novus Ordo Seclorum.

America is a Christian country by demographics, true.

Separation of Church and State may not be a popular or politically correct concept these days, but it is still one of the foundations our republic is built upon.

--James

[Wombat]

An American senator (Santorum I think) went on record questioning whether or not you could even prosecute people for interspecies relationships after this. His were hate filled and biased remarks to be sure, but I can see a grain of reality in them.

I know you aren't endorsing the senator's viewpoint but, in suggesting there is even a grain of reality here, you do seem to be be giving that person a little too much credit. How was it proposed to establish the consent of both parties?

In between posts today I'm writing a book chapter about slippery slope arguments. It's frightening how many of them are moronic and even more frightening how little most purveyors know or care about the difference between good and bad slippery slope arguments. I'm not just talking about spotlight-hogging senators, I'm talking about supposedly qualified academics.

[ChrisLaughlin]

It's about dang time!

Chris

[Seth]

I wasn't pointing out America's demographics. America's laws are inherantly Christian as well. But so what? They are still for the most part damn good laws that any decent person should obey, but rooted in Christianity. That is why we still have antiquated Sunday liquor laws, and many others that I cannot look up in the fifteen minutes I have between classes. But the laws against gay marriage stem from that. The morality side is what's legislated, not the judicial side. These laws were created against gays not because lawmakers thought gays would be bad parents, but they thought gays were bad people.

Currently this may be different. There are people who claim to believe that though homosexuality is okay, they still shouldn't marry. This is a different problem in theory. But a different problem affected by the same morality based laws.


As to Santorum, what I mean is this; People across the country will claim slippery slope with arguments similar to him. That is the reality I was reffering to. I just think we need to be ready for them with appropriate rebuttals, like the consent issue you briefly mentioned. I didn't mean any more then that.


Seth

[fiddling_tenor]

Novus Ordo Seclorum.

America is a Christian country by demographics, true.

Separation of Church and State may not be a popular or politically correct concept these days, but it is still one of the foundations our republic is built upon.

--James

Actually, the founding fathers wanted to ensure a state-run church, ala the Church of England, with all its political influence, was not established here.

That has never, ever been even a remote possibility.

The so-called "separation of church and state" as its now commonly referred to is a matter of interpretation. Practically, it should be called the "separation of church from the state."

We are religious, spiritual beings. Its a sad day when such things cannot be openly ackowledged as influencing our daily decisions, incuding political ones.

[jim stone]

Yes, I searched and searched to get an account of
the legal basis for the ruling. The news coverage apparently
think we're not up to handling that sort of info,
a self-actualizing prophecy, I reckon.

It's worth understanding what's going on here.
The dissenter apparently thinks that it's a mistake
for Massachusetts to prohibit gay marriage. Probably
it ought to be legal. Certainly that's well consistent with
the dissent. He disagrees, however, that the prohibition
violates the state constitution. The court has accepted
the following proposition:

1. The prohibition violates the equal rights of gays--unless
it is rationally linked to a legitimate state interest.

It then continues;

2. The prohibition is NOT rationally linked to a legitimate
state interest.

3. Therefore it violates the equal rights of gays.

The dissenter denies 2. I think he's at his most cogent here:

The issue is whether it is rational to reserve judgment on whether this change can be made at this time without damaging the institution of marriage or adversely affecting the critical role it has played in our society. Absent consensus on the issue (which obviously does not exist), or unanimity amongst scientists studying the issue (which also does not exist), or a more prolonged period of observation of this new family structure (which has not yet been possible), it is rational for the Legislature to postpone any redefinition of marriage that would include same-sex couples until such time as it is certain that that redefinition will not have unintended and undesirable social consequences. Through the political process, the people may decide when the benefits of extending civil marriage to same-sex couples have been shown to outweigh whatever risks -- be they palpable or ephemeral -- are involved. However minimal the risks of that redefinition of marriage may seem to us from our vantage point, it is not up to us to decide what risks society must run, and it is inappropriate for us to abrogate that power to ourselves merely because we are confident that "it is the right thing to do." Ante at (Greaney, J., concurring).

In short it is a legitimate interest of the state to protect the
institution of marriage, which is social bedrock. It's hardly
hardly inconceivable that redefining marriage in this
substantial way will be destructive to the institution; there's
considerable disagreement about the consequences,
nor has there been sufficient opportunity to
study such relationships and their effects on children, etc.
Hence postponing redefining marriage until the people have an
opportunity to discuss the issues, to get more information
about such relationships, their effects on children, and so on,
is rationally related to that legitimate interest.

The 'rational interest' test is traditionally very easy for a state
to satisfy, even if the court thinks that gay marriage is
the right thing to do it's plain, by the standards under
which the court typically operates, the concern to protect
the institution of marriage passes the test. Therefore
the matter of gay marriage is one for the state legislature
to address--as well it should, the dissenter thinks.

This strikes me as cogent, and the court's claim that
the prohibition is entirely arbitrary, there are no
rational grounds for the state to be careful in redefining
marriage, to gather more information, to hold public
debates and discussions before proceeding, seems
to me to be pretty silly.
Best

[peeplj]

The so-called "separation of church and state" as its now commonly referred to is a matter of interpretation. Practically, it should be called the "separation of church from the state."

We are religious, spiritual beings. Its a sad day when such things cannot be openly ackowledged as influencing our daily decisions, incuding political ones.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

--the 1st Admendment of the Constitution of the United States

[elendil]

Call me old fashioned, or worse if you prefer: I thought these were the kinds of things that We the People should decide through our elected representatives.

[TomB]

Call me old fashioned, or worse if you prefer: I thought these were the kinds of things that We the People should decide through our elected representatives.

Well, yeah, but that is also why we have the three branches of government. One of the things the judicial branch does is interpret how the laws are applied. That is what they appear to be doing in this case. Not saying you should agree with them, but that's the system.

All the Best, Tom

[jim stone]

'I think that this ruling will be made more sound as time goes on. Barring, of course, any constitutional changes that may come up along the way. I feel that the data will come back showing that gay couples can raise children just as well as straight couples, and they will do so under much more scrutiny. No straight parent (except those who have set their own precident) will have as many people watching them for mistakes as a gay parent will.' Seth wrote.

Note, though, that your observation about what you feel the data
will show is enough to blow the court's decision out of the
water. If there's important relevant information we don't
yet have, then, on the face of things,
it's rational for the state to get it
before redefining marriage. Therefore keeping the
prohibition in place--at least for now--is rationally related
to a legitimate state interest. Therefore the prohibition
doesn't violate the equal protection rights of gays,
according to the court's own criterion. Therefore
the prohibition isn't unconstitutional.

Which isn't to say that it's a good idea.

You will all forgive me for pointing out the obvious:
constitutions (state and federal) don't mandate
every good law, nor do they prohibit every bad
law. The issue before the Massachussetts Supreme
Court wasn't 'Is the prohibition against gay marriage
good or bad?' but 'Does it violate the constitution
of the state of Massachusetts?' It is perfectly
compatible that the answer to the first question
is that the prohibition is bad law and that the
answer to the second question is, No. Best

P. S. Hi, Wombat, my view on slippery slope
arguments is that there are good ones and bad
ones. It all depends on whether the slope is
really slippery and whether we will slide to
a place we really don't want to go.

Also sometimes the real possibility (as opposed to
the certainty) that a
slope is slippery is worth taking into account
concerning evaluating the risks of a social
policy. For example, one of the several arguments
opposing legallizing active euthanasia in the
USA is that it might flow into vulnerable populations,
the disabled, the elderly, Alzheimers patients,
and so on, who
would be liquidated, finally. I don't
know that it would, but I do think one ought
to be alive to that risk. Best

P. S. S. . 'I feel that the data will come back showing that gay couples can raise children just as well as straight couples, and they will do so under much more scrutiny.'

Let me also express some doubts
about this, which i've mentioned in earlier threads.
I do think there's a good deal of information that
children do better with role models of both genders.
Little Sally is likely to do better with a Mommy and a Daddy
than with two Mommies or two Daddies.
Little Joey is likely to do better with a Daddy and a Mommy
than with two Mommies. Having grown up without a
father, I felt pretty keenly the absence of somebody
who knew how to be a man.

It isn't that I think
gay relationships will be a catastrophe for children;
to the contrary. But I would hardly be surprised if
they turn out to be less than optimal. I certainly don't think such concerns are silly,
bigoted or arbitrary, or that the answer to such
questions is obvious.

[DCrom]

Tom and Elendil, I actually agree with both of you to an extent.

That is, it think it is long past time that we realise the marriage is both a civil and a religious matter, and quit confusing the two. And that this would be far better dealt with in the legislature than the courts.

All that being said, though I have mixed feelings about the court making the decision, I think the "right" decision wa made from a civil standpoint. Were I dictator-of-the-world for a bit, I would say that the government's only business is contract enforcement, child custody, and property rights; let any marry who wish to, but make sure that if a marriage breaks up that all parties involved are treated fairly. And marriage rules, within a religion, are entirely its own business. So you might be married according to the rules of the state and not the church? Change churches or work to change the one you go to - but that's your business, not the government's business.

(For that matter, I'd totally eliminate that ridiculous don't ask/don't tell policy from the military, and tell them "Roughly 10% of the population is gay. Deal with it." I'm a pretty conservative guy on a lot of issues - but this, to me, is a simple matter of equity.)

But I see an even bigger problem then an "activist judiciary" here, too - I see legislatures full of politicos unwilling to take any stand that might generate unfavorable publicity. And there are times I wish we could indict the whole lot on charges of misfeasance in office. This issue, like abortion and civil rights, should have been dealt with in the legislatures long before it reached the Supreme Court.

[TomB]

Tom and Elendil, I actually agree with both of you to an extent.

That is, it think it is long past time that we realise the marriage is both a civil and a religious matter, and quit confusing the two. And that this would be far better dealt with in the legislature than the courts.

All that being said, though I have mixed feelings about the court making the decision, I think the "right" decision wa made from a civil standpoint. Were I dictator-of-the-world for a bit, I would say that the government's only business is contract enforcement, child custody, and property rights; let any marry who wish to, but make sure that if a marriage breaks up that all parties involved are treated fairly. And marriage rules, within a religion, are entirely its own business. So you might be married according to the rules of the state and not the church? Change churches or work to change the one you go to - but that's your business, not the government's business.

(For that matter, I'd totally eliminate that ridiculous don't ask/don't tell policy from the military, and tell them "Roughly 10% of the population is gay. Deal with it." I'm a pretty conservative guy on a lot of issues - but this, to me, is a simple matter of equity.)

That's exactly the point. Marriages legalized by a state don't equate to a particular religion deciding to not allow it, nor should the state be involved in that- and yes, Jim Stone, I know that your argument is that it could lead to that

I'm totally with you on the military thing also. I spent 20 years in the Navy, pretty certain that I served with some folks who were gay. Don't care. The policy is ludicrous, at best

Tom

[antstastegood]

One of the biggest things that the Left complains about is that the Right imposes their opinion of morality on everyone else, by working against "gay marriage" and the slaughter of the unborn.

The Massachusetts court has just imposed their opinion of morality on the people, only this time the Left agrees with it, and makes no complaint about this imposition.

[DCrom]

One of the biggest things that the Left complains about is that the Right imposes their opinion of morality on everyone else, by working against "gay marriage" and the slaughter of the unborn.

The Massachusetts court has just imposed their opinion of morality on the people, only this time the Left agrees with it, and makes no complaint about this imposition.

I actually agree with that description.

That I think it's the right decision is irrelevant. Or that, for most issues, I am pretty conservative. Really.

But I think the legislature showed a breathtaking lack of testicular fortitude in not dealing with themselves.

[jim stone]

About the appropriate role of the judiciary in
our system, and what should be decided by
the courts v. the legislature.

Here's something simple:

First, we need a judiciary to interpret law.
Second, we need a legislature to make it.

Where pre-existing law can be plausibly
interpreted to prohibit a new practice,
or to strike down a statute, then it should
be so applied by the Judiciary.
Otherwise the matter should be left
to the people to decide through the
legislative process.

Obviously there will be some disagreement
about whether an interpetation is 'plausible.'
But the Massachusett's Court's decision
is predicated on this assertion:

the state's concern that gay marriage
might be bad for the institution of marriage,
may have consequences
which ought to be considered before
marriage is redefined, is simply irrational.

That assertion is silly.
So the court should have left the
matter to the people.