The Practice of Gay Marriage

With the recent California Supreme Court ruling, gay couples are now able to wed in the state, causing a heated debate over the right to have same-sex marriages. Opponents of the ruling have launched a proposition that would change California’s constitution to ban gay marriage. Florida is also considering a similar state proposition, so there is a lot debate going on about this issue.

What better to learn about the different positions in the gay marriage debate than by watching scenes from The Practice - the 1990’s Emmy Award winning show about Boston lawyers?

In the episode “Civil Rights,” attorney Jimmy Berluti and Lindsey Dole represents Berluti’s recently outed lesbian mother and her partner in their petition for a marriage license. These two clips will highlight the arguments made on both sides of the gay marriage debate.

First up is the opposing counsel, who is asking the judge to deny the marriage certificate to Berluti’s mom and her partner. Here are his arguments:

Closing the show is Berluti, who frames gay marriage as an issue of equity and civil rights:

In the end, the judge declines to grant a marriage license to the lesbian couple because while he tolerates gay relationships he does not want to encourage them.

What do you think about the whole marriage debate? Were there any arguments you found particularly convincing from The Practice? Are there any other arguments for either side which the show failed to mention?

For those of you in California and Florida, how will you vote on the propositions that would amend your respective state constitutions to ban gay marriage?

Comments

[David Lorango]

I think the inclusion of an episode of "The Practice" (despite my disdain for the show) was a good way to engage in what continues to be a visceral debate.

Rather than jump into the lion's den with a case of lamb chops, I'm more curious as to why the debate has become so polarized. Can someone still tolerate, respect, and understand that homosexuals can and in fact do love one another, while still believing that homosexuality might not be the best route to go?

Can both sides acknowledge that all scientific research has not and will not find one "gay gene" (if need be, do a quick wiki search on the topic). Instead, it seems that environment and predispositions might be factors. But this doesn't necessarily translate into causal relations (i.e. born gay).

Basically, I'm boiling this down to the fact that the debate is decidedly black and white: either love homosexuality or hate it. A liberal can't question it without being cast as a bigot, hate monger, or downright evil. And when a debate is not a debate but a brawl, I find it difficult to discuss and generally leave it to others to argue over.

With all that said, I think this forum is a great way to discuss it without all the prejudices, biases, anger and vitriol. But I will say I think the defense comes off a little more 'heart warming', wouldn't you say?

[wkinglewis]

Here is the skinny on the issue. Gay marriage, immigration, race, wars, etc., etc. They are all tools used to split people from realizing one truth. You are either a have or a have-not, and there are way more have-nots than haves. In fact it's about 1% haves to 99% have-nots. But it's ok. Pop culture is just a system that is used to help fuel this never-ending clouded vision that either you're doing well or you're not. Instead it matters if your gay, black, born in the US, like killing civilans, etc. It does not matter that you are poor, you can affect little, and there isn't shit you can do about it as long as others see the world in this incredibly pointless distinctions.

[JA]

I wouldn't place "gay marriage" in the same category as "war" or consider that the issue is being used to blind people from the truth. I agree more with David in that it is a black and white issue that receives more importance than it deserves. It's an issue that affects few, but offends many.

My Christian upbringing leads me to believe it is wrong and (up until recently) the DSM-IV ("bible" of mental illnesses) classified homosexuality as abnormal behavior. Allowing gays to marry would be accepting homosexuality in our society and encouraging gays to marry. Then my liberal side expresses itself to say "Why not?" Like the joke says "Let them be as miserable as the rest of us." Homosexuality is a reality of most (if not all...though some are in denial) societies. I believe the government should stay out of the bedroom and focus on more important issues. But I understand that by passing this law, the government implies that it's "OK" and this is what bothers people. I'm that " someone that still tolerates, respects, and understands that homosexuals can and in fact do love one another, while still believing that homosexuality might not be the best route to go." I'm a product of Christian values re-mixed by life experiences with a diverse crowd.

Come election day I think I can live in a state that allows George Takei and his partner to have their "happily ever after" moment.

[JP]

I've yet to hear a compelling argument against gay marriage that isn't based on religous beliefs. And since seperation of church and state is something our founding fathers very much believed in, and is something that is enshrined in our Constitution, religion should not be a factor in this debate.

This does not mean that churches shouldn't be free to deny marriage to homosexual couples if it violates the tenets of their faith. They most certainly should. But this debate is about civil marriage and religion has no place in that debate.

Saying all that, even the religious arguments against gay marriage are weak, at least from a Christian perspective. In the interest of full disclosure, I am a practicing Catholic, but I admit that I have never read the bible from start to finish. That being said, I have read most of it at one time or another and in my recollection, in all of his sermons and parables, Jesus never once said anything about gay marriage. And not to get to theological, but, in fact, there are only 2 real references to homosexuality being sinful in the bible. One is found in the book of Leviticus in the Old Testament (which also suggests slavery is okay and says that eating shellfish/pork is an abomination, etc.) The important thing here is that Christians believe Jesus represented a new covenant, which means that the old laws and codes in Leviticus are mostly inapplicable and can be disregarded.

The second reference comes from a letter of Paul the apostle. Make no mistake about it, Paul is great saint and an early church leader. But before he was an apostle, Paul went around killing Christians and beheading them. Suffice it to say I'm not neessarily going to go with what Paul thinks on the issue.

[Tola]

Marriage or Civil Unions, I don’t really know BUT I do not see any reason not to give homosexuals the rights of married couples. Who does it hurt honestly who?

[Jake]

Okay, first of all, sorry for the outrageously long post. Next, I am a graduate philosophy and theology student so I know a bit about the religious side of this debate (I'm also an evangelical if that word causes any of you to tune me out now). With that said, JP I agree that homosexuality is hardly one of the largest issues that Christians have made it out to be. However, the references in the New Testament do seem pretty clear. True, there is only one mention of homosexuality by name in the NT (1 Cor. 6:9 which lists all sexual sin, and in so doing encompasses most all of us), but at least the references in Romans 1:26-27 and 1 Timothy 1:9-10 (all NASB) show the Apostles position clearly. As far as Paul's merits--even though he was once a persecutor I think its safe to say that once he discovered the truth there wasn't a more zealous evangelist, and hasn't been since.

And Jesus probably didn't talk about gay marriage for the same reason he didn't talk about abortion--they weren't the social and political issues back then that they are today. To the first century Jewish mind it was clear these things were wrong, Jesus didn't need to preach about them. Now the fact that Jesus came to fulfill the law doesn't mean the old covenant was invalidated, only that it was reinterpreted (i.e. these OT laws were given to show people, especially the Jews, how holy the God they served was and why they couldn't live up to these commands but needed an intermediate High Priest).

But lets move through the religious argument, I agree that if you aren't religious then it isn't very persuasive in the debate about same-sex marriages. However, it's not quite right to say that since we have a separation of church and state that religious scruples don't come into play since after all many, if not most, of ethical considerations are religious in nature. And, the idea of tolerance itself is an ethical consideration (not to mention a religious one). And, our founding fathers introduced an equal protection clause (in the US Con. of course, not the CA one under consideration here) on the basis of ethical considerations. So clearly ethical (and religious) considerations are relevant in cases that deal with ethical issues.

The debate, regarding this specific CA Supreme Court ruling, should primarily be a legal one. It seems questionable how the Court could hold that sexual-orientation could be a constitutionally protected right. Equal protection, for the most part, protects situations that are out of an individual's control---things such as race, gender, disability etc. True, there are protections, such as religious persuasion, that involve choice. However, the equal protection clause was designed to insure that all citizens would be equally protected by the laws, not that every person had a right to have every law equally enforced in their favor.

Moreover, the Strict Scrutiny test that the Court applied in this case (ignoring the fact that the Rational Basis test would have been more appropriate) requires that there must be a "compelling state interest" in order for the discrimination to occur. The fact that there are so many Californians against same-sex marriages seems to favor this conclusion. In fact, I would argue that Proposition 22, through which the electorate conclusively voiced its opinion on the matter, is indeed a very compelling interest. Maintaining the rights of the people to have their votes mean something has to be a compelling interest. In order to apply this Strict Scrutiny test (and not the more appropriate Rational Basis test) the Court had to find that sexual orientation is a suspect class--something that has been reserved only for the most discriminated against groups. The four qualifications to be a suspect class are that the group 1) has characteristics are immutable (sex, gender), 2) shares a history of discrimination, 3) is politically impotent and 4) is a discrete and insular minority. It is VERY hard to see how sexual orientation could fall under this heading--indeed the Court had to rule that the first principle need not always be taken into account.

Chief Justice George in the majority opinion spoke of California's "comprehensive domestic partnership legislation under which a same-sex couple may enter into a legal relationship that affords the couple virtually all of the same legal benefits and privileges, and imposes upon the couple virtually all of the same legal obligations and duties, that California law affords to and imposes upon a married couple." It seems that only the title "marriage" is missing--and indeed the justices agree that this is the only substantive issue in the case--whether depriving same-sex couples of that title is unconstitutional or not. There isn't a constitutional violation when all of the substantive elements of a marriage are given to same-sex couples as well. Contrary to the Majority view, a different title for each relationship (which is based on the type of relationship it is, same-sex or opposite-sex) can't be unconstitutional.

The Majority goes on to state of this right to marry and other such rights that "they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process." However, in something so politically divisive, it is exactly the people who should be deciding the issue. As I've already argued, this protected right can't be construed to overrule the right of the people to have their voices heard.

Another major theme throughout the opinion of the Court is that a same-sex couple deserves to have "their family relationship accorded the same respect and dignity enjoyed by an opposite-sex couple." Even if that is granted, it doesn't follow that allowing them to use the title "marriage" will accomplish this goal. Not only doesn't it follow but it seems evident that the issue of dignity and respect is not whether these relationships are called "domestic partnerships" or called "marriages." The issue of respect and dignity can't be cured by the judicial branch--and especially not by simply giving a title.

Continuing on, the Court says that there is harm done to the same-sex couples because "denying such couples access to the familiar and highly favored designation of marriage is likely to cast doubt on whether the official family relationship of same-sex couples enjoys dignity equal to that of opposite-sex couples." But again dignity is not something that the Court can bestow. And where there might be doubt as to whether the status of domestic partnership deserves dignity, it is the job of the Executive branch (according to our Constitution) to see that the laws are faithfully executed--the laws that give these domestic partnerships equal substantive rights, privileges and dignity.

But, after all that, I am an evangelical who believes that homosexuals do deserve much, much more dignity and respect than they have received from Christians. Just because I believe actions they engage in are wrong, doesn't mean I believe they shouldn't be given this respect the Court speaks of. There is nothing uniquely sinful about homosexuality, I sin everyday and I receive respect from other believers--why should homosexuality be any different? It's a shame what the current debates have done, they have taken Christ's message of acceptance, tolerance and forgiveness and tailored that only to those who have things together. But Christ came to be with the outcast and disrespected, to love the undignified and insulted and to heal the broken and downtrodden. Now thats a heading I think could apply to all. I only wish that the zeal some Christians have for fighting against same-sex marriage could be changed into a zeal for showing the tremendous, unconditional love that Christ has for all of His children to all of His children.

[Rich]

I appreciate everyone who added their perspective on this matter so far.

I do have a question to those who say they are alright with permitting gay marriage even though they do not think that gay relationships “might not be the best route to go.” In your opinion, why isn’t homosexuality “the best route to go?” Or taking it deeper: why are heterosexual relationships better? (Perhaps I misinterpreted your stance and if so, I apologize). JP understandably interprets your stance as rooted in religion. Is this true? And if so, how does JP’s religious rebuttal sound to you?

*Having just read Jake’s long and thoughtful comment, it’s going to take me a while to fully absorb his legal argument and formulate my reaction. But he brings up some interesting points.

Thanks to everyone who has participated so far. And I want to especially thank you all for keeping the conversation respectful. Keep it up.

[JP]

Hi Jake,

I just wanted to respond to a couple of things in your post.

First of all, a few things regarding your legal arguments, specifically your criticism of the use of strict scrutiny in the California Supreme Court recently on gay marriage: While it is true that courts have traditionally found that sexual orientation does not constitute a suspect class...I don't agree with that position or your analysis of why that position makes sense. First of all, in all honesty, what courts have defined as a suspect class has been driven by politics and I would argue it is totally and completely arbitrary (if you read the Constitution, you aren't going to find anything about suspect or quasi-suspect classes). Second, the Supreme Court has only found three suspect classes that get strict scrutiny: class based discrimination based on race, national origin, and alienage. Gender, sadly, has actually not been found to be a suspect class, but only a quasi-suspect class and thus is only afforded intermediate level review. This means the state can more easily discriminate based on gender than race (which again shows you how arbitrary this whole thing is). Third, you said that suspect clases have only been found in regards to things that are out of the person's control. I would argue that sexual orientation is biological and thus would also fall in this "out of the person's control" category.

All that being said, there is another route to strict scrutiny here. The Supreme Court has found that within the substantive due process clause of the 5th Amendment, which applies to the states under the 14th Amendment, is a fundamental right to privacy. Included in this right to privacy is the right to marriage. As you probably know, any law that infringes on a fundamental right, like the right to marry, receives strict scrutiny review. Thus, I would argue that strict scrutiny was indeed proper in the California case.

Now, as to the religious argument...you said that Jesus probably never mentioned gay marriage since it wasnt an issue of his day. That may or may not be true, but homosexuality definitely existed during Jesus's time, and in fact was quite prevalent in the Roman Empire. The fact that Jesus, in all of his parables and sermons, spoke not once about it leads me to think that opposition to homosexuality is not fundamental to being a Christian. Again, I understand Saint Paul made reference to homosexuality being sinful in one of his epistles, but Saint Paul is a human trying to interpret God's message. As such, he is fallible and, based on what I have read in the bible, I don't agree with his position and I think he got it wrong. To castigate homosexuals as somehow inferior, unworthy, or unclean contradicts with Jesus's message of treating others as you would want to be treated and loving one's neighbor as one's self.

[KS]

Why so squeamish? The Bible is pretty clear on the subject:

If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death; their blood is upon them. Leviticus 20:13

The LORD has spoken. Why are we still talking about this?

[KS]

Jesus Christ!

[Jake]

JP, thanks for the thoughtful response. Here is my best attempt at a response to yours.

On the Strict Scrutiny test: I don't think its fair to say that its driven fully by politics and think it's plain factually inaccurate to say that it's arbitrary. The Court who delivered this opinion is, as I'm sure you know, compromised overwhelmingly of Republicans (6 to 1). Of course, that doesn't mean it wasn't a political opinion and I would agree that politics does play a huge role. But I don't think your use of the class of gender shows that it is a purely political process otherwise I think gender would have received full suspect class status by now.

On the second point, that it is arbitrary I just have to point you toward some key USSC cases that set out clear criteria. Some of those cases are: US v. Carolene Products (1938)--which introduced levels of scrutiny and applied the rational basis test; Korematsu v. US (1944)--the first case to use and apply the Strict Scrutiny test (and in which the government met the standard); and loads of others through the decades, especially the Warren Court's exposition of rights in the 50's and 60's (cf. Sherbert v. Verner [1963] and Griswold v. Connecticut [1965]). See http://www.uclalawreview.org/articles/?view=54/5/1-4 for an overview of the topic.

Next, I did say that the Court has normally found that only those things beyond a person's control are protected. I think it's fairly well agreed upon that gender is beyond control and still hasn't been upgraded to suspect class status. So not all things beyond control are suspect. I think gender should be a suspect class but as things stand it isn't. So the California Supreme Court has decided give sexual orientation a higher status than gender. I think that shows a problem in the legal reasoning of the Court--at least to a small degree. And maybe homosexuality is something beyond the control of an individual but that status alone can't merit suspect class status. I can't control my eye color but I highly doubt they will upgrade that to suspect class.

On the other note of Strict Scrutiny, the fundamental rights argument, I understand that the right to marry has been deemed fundamental. But that doesn't mean that the right is without exceptions, and I think it is a legitimate argument to say that you draw the line at same-sex marriages. Even if you don't agree with the merits of that argument (for drawing the line at same-sex marriages) you can't just argue that the right to marry must be exception-less. Just like all other fundamental rights can be abridged for various reasons, there must be a line to draw with marriage. The right to marry doesn't give a man the right to marry three woman nor the right to marry his sister. These laws against polygamy and incest don't violate our Constitution because the right to marry has exceptions. It doesn't seem that there is a particularly compelling state interest to uphold these laws but the restrictions they enforce are not unconstitutional. What these show is that even fundamental rights can be abridged. (Skinner v. Oklahoma [1942] shows a good example of this fundamental right to marry but doesn't make it non-derogable, namely there circumstances where it doesn't hold).

As to the religious again...I said that same-sex marriage was not the political and social issue in Jesus day that it is today. Meaning, there weren't protests and parades, picketing and propaganda related to same-sex marriage. I'm very aware of the prevalence of homosexuality in the Roman empire, especially with the fertility religions and the near worship of sex itself. But just showing that it was an issue doesn't mean Jesus' silence on the subjects insinuates his acceptance of the practice. For example, premarital sex was prevalent and not mentioned by Christ but it is clearly taught as wrong in the rest of Scripture; Stealing was prevalent and not mentioned by Christ yet also clearly portrayed as wrong; Child abandonment was prevalent, also not mentioned by Christ and pretty clearly immoral. Basically, Christ didn't come to give a systematic exposition of morality--He came to bring the good news of salvation to all who would receive Him by faith.

I would definitely agree that believing homosexuality to be wrong is not at all crucial to being a Christian. Christ established a much better way than trying to judge everyone else and decipher who is pure and who is not. I believe homosexuality is wrong and I believe the Bible teaches it is but I think one can be a devoted Christian and disagree with me on the point. Likewise, I think Scripture leans toward supporting the Big Bang theory and a universe roughly 14 billion years old but don't think its necessary to hold that belief to be a Christian (in fact some would accuse me of heresy just for holding that position). The point is that you're right, there are only a handful of things that are absolutely essential to believe in in order to call yourself a follower of Jesus Christ. But the beauty of Christianity is that it isn't just mere mental assent to a set of propositions but the results that those beliefs produce that confirms the status of a believer (i.e. if someone claims to be in Christ they must walk as Jesus did - 1 John 2:6).

Finally, I think you say two very different things about Paul, and misunderstand him a bit. First off, if you don't agree with Paul there isn't much I can do to convince you that he is inspired or infallible while he is writing the epistles, except maybe clarify him, which I hope to do. Second, nowhere does Paul ever ever condone treating homosexuals as inferior, unworthy or unclean. You are exactly right that this would contradict Jesus' message and Paul never does this. Instead, Paul criticizes those who think that they are righteous enough to judge others (Romans 2). The Christians who think they have a right to judge homosexuals would do well to read this scathing review--as well as the beginning of Matthew 7. Paul doesn't pick out homosexuality and single it out for censure, rather he shows how ALL men stand condemned before a holy and just God because of the sin they have committed, and exchanging natural relations for unnatural is just one example of an extensive list. On that list, mentioned much more frequently, are things like pride, selfishness, greed, envy and anger. God's concern, communicated both through Jesus and Paul, is with the heart and not primarily the actions.

If Christ were here today (or St. Paul for that matter), they would be angrily speaking against all the religious folks for their hypocrisy and prejudice. They would be hanging out with those who are marginalized, outcast and disrespected. I think its fair to say that homosexuals have often fallen into that category and it's important for all those who follow Christ to communicate the message of love that He handed down to us.

[JA]

Just wanted to compliment Jake on his comments on Christianity. I especially agree with the idea that if Christ were here he's be disappointed with religious hypocrites. I think many times that's what drives other non-Christians away.

[JP]

Hi Jake,

Thanks for your response.

First, when I say that the Supreme Court's use of a particular standard of review is driven by politics, I don't mean party politics. I mean that the standard is driven by each Justice's personal political view on the matter before the court. Party really has nothing to do with that. To illustrate, Justice Stevens is widely considered the most liberal member of the Supreme Court. He also happens to be Republican.

Now, you say its factually inaccurate to assert that what standard of review is used is arbitrary. I beg to differ.

Suspect classes are defined as follows:
The groups' characteristics are immutable, the group shares a history of discrimination, the group is politically impotent, and the group is discrete and insular. First, find any of that language in the Constitution. But even conceding that somehow this language is from the Constitution, explain to me how women and gays/lesbians would not fall under this defintion.

1. Immutable- less time I checked you can't change your gender...well I suppose you could have a sex change operation, but then again you could probably have an operation to change the pigment in your skin, so by that standard nothing would be immutable. And I would argue sexual orientitaion is immutable as well, since it is biological. As evidence, just look in the animal kingdom. Everyone knows the famous monogamous gay penguin couple at central park zoo (although word is they finally broke up). Homosexuality is found naturally in a wide range of species, not just in humans.

2. the group shares a history of discriminaiton- women didnt have the right to vote until the suffrage movement, they still don't get equal pay, and women once were precluded from entering certain fields/professions. Gays aren't allowed in the military, they cant marry (circular i know), and until Lawrence v. Texas they couldnt express their love in a sexual manner.

3. The group is politically impotent- this argument is getting a little trickier with women, since they are making great strides in getting elected to public office. that being said, it has taken a long time to get to the point we are at and, even now, women (which account for approximately 50% of the population), have nowhere near that amount of representation in Congress. We also have yet to have a woman president. As for gays and lesbians, it remains nearly impossible to get elected as an open gay in about 80% of the country (props to California and Massachusetts on being tolerant).

So, after looking at all that, I fail to see how one cannot say that the Court's decision as to which groups should be a suspect class is not arbitrary. The elements the court constructed to determine what is a suspect class are arbitrary and they have been applied in an arbitrary manner. How much more arbitrariness can there be?

Also you said, "I think gender should be a suspect class but as things stand it isn't. So the California Supreme Court has decided give sexual orientation a higher status than gender. I think that shows a problem in the legal reasoning of the Court--at least to a small degree." Or it shows they are arbitrary... =)

As for you comparison of homosexuality as a class to eye color as a class, honestly that's a little bit of a silly comparison. Last time I checked, people weren't being beaten up, killed, or put in jail, discriminated against in employement, not allowed in the military etc. because of their eye color. People with different eye colors also are allowed to marry who they chooose, unlike gays and lesbians.

Now, back to marriage as a fundamental right. You said the right does have exceptions. Absolutely. As I stated before, a law can infringe on the fundamental right of marraige if it passes strict scrutiny. Now, you mentioned marrying multiple people and incest. I would argue that, under the court's completely arbitrary strict scrutiny standard, the government does have a compelling interest in these areas. Children from incestual marriages are highly likely to suffer severe birth defects and deformities, and are likely to become wards of the state. The point here is, what exactly is the compelling state interest justifying non extending the right to marry to gays and lesbians? I simply can't think of one. Can you?

Okay, now, I think your argument of mentioning other things that Jesus never mentioned but are clearly wrong is very clever. However, all of the other things you mentioned are talked about repeatedly in the bible. This is not the case with gay marriage (which is not talked about at all) and gay sex in general (which is talked about twice in total). Also many of the other things you talked about are arguably encompased in Jesus's golden rule of treating others as you want to be treated (i.e. theft, child abandonment, etc.) However, disciminating against gays and lesbians in regards to marriage doesn't seem to fit so well with that Golden Rule.

Finally, I'm not attacking Paul. I think Paul was a great saint as I said before. But Paul is not God. I am not a fundamentalist so I dont believe the bible is per se 100% accurate and true. I dont think you do either, or else you would advocate that gays be put to death as it calls for in Leviticus (read KS's post). I do believe Paul was inspired by God, but man is a flawed instrument. Thus, I think Paul got this issue wrong.

In closing, I think we can agree that gays and lesbians deserve better than what they are getting and that Jesus would be quite disappointed in how the far right uses religion as a bludgeon to attack gays and lesbians.

[JP]

Hey Jake,

I probably won't be able to respond if you respond to my latest post...I have some busy times ahead and then am heading out of the country right afterwards. So, I just wanted to take a second to thank you for engaging me on this issue and let you know that I appreciate the friendly back and forth. I look forward to discussing more issues with you on policywithpop in the future.

[JR]

"and (up until recently) the DSM-IV ("bible" of mental illnesses) classified homosexuality as abnormal behavior."

Well, um, yes, if your definition of recently is 1973. The APA used to advocate giving lobotomies for female hysteria, too, but that doesn't make it right.

[JR]

Two more response points:

1) From a liberation standpoint, the nuture/nature debate is a moot point. The human and civil rights of gay people are not based upon having to prove that we are poor unfortunates who "can't help it" and should be tolerated. The crux of the matter is freedom. Who knows what we choose or don't? Who knows if it is the same for all people? It's beside the point.

2) Yes, gay people are used as wedge issue and a red herring. But when you are a member of the group being used as the wedge, it is not so simple. Should we just continue to go without civil rights to keep some supposedly bigger agenda in power? And it is not true that there are just 1% haves and 99% have-nots. There is also a large class (perhaps 20-40%) called the middle class which has been bought off with crumbs (AKA i-pods, cars, houses, and 401Ks) to manage the real have-nots. It is not credible to lump the middle class in with the have-nots.

[Jake]

JP,

It was my pleasure having this friendly conversation with you. I know sometimes emotions and agendas frequently obscure rational (and often amiable) argumentation and I wanted to sincerely thank you for your cordiality.

That said, it feels a bit odd replying to a post when I know you can't respond so I'll try to keep it lighter than normal. So here it goes...

First off, that’s fair about your use of “political,” I agree that that is different from party politics (though I’m not as convinced as you that “party really has nothing to do with that”).

Next, let’s address the issue of suspect class criteria. So, I've searched far and wide to find the exact criteria that Wikipedia so conveniently (but unfortunately incorrectly), supplies and ascribes to the Carolene Products case. In fact, that case only introduces the concept of levels of scrutiny (and that only in a footnote!). In reality, the criteria are much more diluted across various cases in various courts. Most sources I’ve consulted don’t even have these four distinct criteria at all, but instead some admixture of them usually containing the main points (see High Tech Gays v. Defense Industrial Security Clearance Office [1990] which only lists three criteria).

But the fact that there are prudential guidelines, enacted by the judicial branch itself, doesn't mean they are any less constitutional. In fact, the Courts have consistently held that it is their duty to supplement Article 3 of the constitution with provisional guidelines of conduct. There are far too many guidelines, judicially created, yet indisputably necessary to list here (to name one: the Court has held that there are five restrictions on the standing component of judicial power, three of which are constitutional and two of which are prudential [meaning not found in the constitution but nonetheless important for restricting power]: the prohibition against third party standing and against generalized grievances).

I think just the fact that you show that there are guidelines and criteria show that the decision of class status isn’t completely arbitrary. There may be some classes that would be suspect classes if only cases appropriate to decide the matter were brought before the Supreme Court—but as I’m sure you know there is a constitutional prohibition against advisory opinions (meaning the Court can only decide issues that contain “cases or controversies” between adverse parties). Gender, however, has come before the Court and homosexuality has too. In fact, I think Romer v. Evans is particularly helpful in this case. In Romer, though the Colorado State Supreme Court invalidated a proposed constitutional amendment holding that sexual orientation was a suspect class, the Supreme Court did not hold that this status qualified. When deciding a case it is wise jurisprudence to observe stare decisis, i.e. respecting past judicial opinions (of course not in all cases but especially in the case of higher court opinions). Since this case was decided only 12 years ago it clearly states the intentions of the High Court, which should be deferred to when such evidence is available. Moreover, in the above mentioned High Tech Gays v. Defense Industrial Security Clearance Office (1990) a 9th District Court held that sexual orientation was only a quasi-suspect class earning it only intermediate scrutiny.

I’m not sure why you argue about women fitting the criteria for suspect class, I don’t think I ever disagreed with the contention that they should be thus classified. Perhaps you do it to draw the parallel with sexual orientation so I’ll concede again that gender should be a suspect class. For the sake of brevity (which I’m afraid hasn’t been as notable as I had originally wished) I’ll just mention that I think calling the homosexuality community politically impotent is a much harder argument to make than calling women politically impotent—though I think both arguments would ultimately fail. Having political power and holding political office can hardly be seen as synonymous. LGBT activist groups have very substantial political clout in Washington (and state executive and legislative branches—not to mention judicial as I believe this case demonstrates). I’ll also just mention that you didn’t argue for the “discrete and insular minority” criterion of the list.

On the point of exceptions to the right to marry…I mentioned two and you cleverly avoided the one that you knew would be hard for your argument. Specifically, I mentioned polygamy along with incest. Sure, it may be easy to find the compelling government interest in incest cases but possibly harder with polygamy cases. The interest, I would argue, is the same as that in the issue of same-sex marriage—protecting the traditional view of marriage. This inherently moral interest has been upheld time and again. In Scalia’s dissent in Lawrence v. Texas he mentions the reasoning (though of course the dissenting decision doesn’t decide the case). Two quotations are helpful:
“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.” And “[t]he impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge.” The case he is referring to, Bowers v. Hardwick, was actually overturned by Lawrence v. Texas but the moral basis for laws can never be overturned because many, if not most, laws do have a deep moral basis. Outlawing same-sex marriage is certainly narrowly tailored and unarguably necessary for the preservation of the traditional definition of marriage. I would further argue that, as a traditionally (and the tradition argument lasts throughout all of written history—where there have been large homosexual practices and communities in many nations in the past, including our own, marriage has never been defined as anything but between a man and a woman) definition, the one of marriage as between man and woman constitutes a compelling state interest. The fact that the populace also agreed in Prop. 22 just shows how compelling the interest.

As for Jesus, in Matthew 19, vv. 4-6 our boy says, “Have you not read that He who made them at the beginning ‘made them male and female,’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So then, they are no longer two but one flesh. Therefore what God has joined together, let not man separate.” In these verses Christ is speaking of divorce but in so doing defines what marriage is by how God created the world. I wish I could go into the argument from natural order (more complicated than just that that is how God made things, but I feel I’ve already written far more than I intended).

On Paul, I agree he is both a great saint and a fallible human. On the topic of his writings of Scripture, though, I must disagree with you. I do actually believe the Bible is accurate and true in all it professes to teach. This is different from saying it is 100 percent accurate (to use a trite example Isaiah 55:12 states that the mountains and hills sing praise to God but we know that mountains and hills don’t sing, that doesn’t prove error in the Bible it proves that Isaiah is not writing straightforward historical prose). I know the Bible doesn’t teach to put to death homosexuals now because 1) that law wasn’t given to Christians (only to Jews), 2) that law was never meant to be applied outside of the Israelite community, 3) that law, along with all other laws, was only in effect as written before Christ came and most importantly 4) all who believe “are not under law, but under grace.” How great an assurance because surely the 613 commandments of the OT law are too strict for any man to keep…which was both what they were designed to show and what Christ came to remedy. Oh shoot, I could go on and on but I think that suffices to show that I can hold both that the Bible is without error and that homosexuals should not be stoned. And on that note, I don’t understand your use of the word “inspired” if it doesn’t mean that untainted truthfulness comes along with it.

Lastly (I thought I might never finish, so much for the lighter reply…), I couldn’t agree with you more about the treatment of homosexuals. I know have argued at length about the inappropriateness of same-sex marriage but I also want to make clear that homosexuals deserve equal respect, kindness, compassion, care and love that anyone anywhere deserves. Nowhere should the teaching of Jesus, Paul or any other Scripture writer be used to justify ill treatment of homosexuals. I cannot stress enough how much love Christ would give to this ostracized community and how much love those who claim to follow Him should likewise give. Thanks again for the hearty dialogue JP and I’m sorry my original desire to make this final reply shorter didn’t actually work. I’d like to leave with a few wise words from the Savior. After the all too familiar John 3:16 attesting to God’s unconditional love for mankind, John writes that “God did not send his Son into the world to condemn the world, but to save the world through him.” It wasn’t the message of Jesus to show people why they were messed up but to take the ones who knew they were (which incidentally is all of us) and show them what it meant to be to live in the fullness of life, both in the present and in the age to come.

[JA]

In response to JR's comment, I guess I should clarify what I meant. Homosexuality is deemed unacceptable in many religions and at some point by our own society. Ideas and our concept of "normal behavior" is subject to time. While I was raised in a religious environment, it was drilled into my head that homosexuality was absolutely wrong. Now I'm a scientist with Christian beliefs but no specific religion so my views on the matter have also changed. I accept it as a life choice that some make (whether biological or environmental is another issue) and believe the government should not interfere with their wishes to marry. That was my main point, the DSM-IV comment was just to illustrate the dilemma that I think drives this issue...for many it's a matter of right and wrong, but I think it's a human rights issue. I think if you believe it's absolutely wrong, it's difficult to look at the issue objectively and decide if this law is good public policy or not.

[JP]

Jake,

I'm breaking my own rule here to offer a short response, because frankly I can't let you get away with that last post un-challenged. Sadly, this will have to be shorter than I would like and won't fully address everything you said, because I am short on time:

1. Disclaimer

Before I begin, since I won't have time to edit this, if I get a little "riled up" at any point excuse me for it and know I mean no disrespect to you.

2. Suspect Classes (again)

It's true that what criteria makes for a suspect class differs from case to case...but, again, I don't get why you don't acknowledge that this proves my point: the definition of what is a suspect class, what clases are considered suspect, etc., is completely arbitrary and subject to the justices' personal views on the matter! Just because the court makes up a standard and then applies that standard to everything doesn't make it any less arbitrary...they arbitrarily made up the language for the standard in the first place! But even worse, the Supreme Court doesn't stick to the same standard as you yourself just pointed out. That is why I gave several of the standards that the Supreme Court has used, and showed how under almost all of them, gays and lesbians and women should be considered suspect classes.

And to say that gays and lesbians have political power simly ignores history. Until Lawrence v. Texas, which wasn't decided until 2003, gay and lesbian acts could be outlawed by state statute and be punished criminally. Do you really think just because gays have a lobbying group now that erases all of the discrimination they have suffered and frankly continue to suffer (again, they cant joint the military, cant marry, etc.). They are still being treated as second class citizens in a lot of ways, which you are not acknowledging. And until 5-6 years ago, they could be thrown in jail for committing sodomy.

3. Due Process

In the end, as I alluded to earlier, I really think this is an argument about personal liberty, which is why I think the Due Process Clause, not the Equal Protection Clause, is the thing we should be talking about. The government cannot deprive us of life, liberty, or property without Due Process of Law. So why is the liberty of Gays and Lesbians being deprived? Freedom to marry has been found to be a fundamental right. You noted a few examples of cases where the right to marriage is rightfully circumscribed (incest, polygamy)...but you've yet to give me a good reason that gays and lesbians shouldn't be allowed to marry. The one argument you put forward is the "tradition"/"traditional morals" of marriage being between one man and one woman. Well, "traditionally" blacks were slaves in this country. "Traditionally" they were counted as 3/5s of a person. "Traditionally" interracial marriage was not allowed. "Traditionally" women couldn't vote. My point is tradition doesn't make something right. Sometimes it's a good thing to break from tradition. So, I am still waiting for an argument to deny gays and lesbians their liberty...

4. The Real issue

Look, at the end of the day, I think what this whole issue comes down to is personal comfort with the idea of a man with another man, or a woman with another woman. I can understand why such a thing makes people uncomfortable. I have to admit that the thought of being with a man is pretty freak'n unappealing to me (sorry to any gay people reading this post)...but thats not the point. The point here is that just because something makes you uncomfortable, doesn't mean its wrong and it doesn't mean people should be precluded from doing it, especially when there is no good justification for stopping them.

5. Jesus

Jesus: I appreciate the quote from the man himself, but the quote you offered does not address gay marriage or homosexuality. You gave an interpretation of the quote by which it may, inferentially, speak to these things, but frankly that is just your interpretation and I dont agree with it.

6. Better Treatment of Gays is Great and All..

Again, while I appreciate the fact you advocate for better treatment of homosexuals, at the end of the day you are still advocating discrimination against them by forbididng them to marry. Treating the gays better, hell, even giving them civil unions (which I don't even know if you are for) doesn't change that. As we saw in the Civil Rights context, seperate but equal is not equal. So, let them marry! It doesnt harm you, it doesnt harm me, and frankly it's not our damn business. The government has more important things to do than to intrude into our private lives and tell us who we may or may not love and commit to.

So again, not to belabor this, but I do appreciate that you recognized that at least some things go too far, but frankly discrimination is discrimination. Period. Exclamation Point.

p.s. Hopefully I didn't get too riled up and maintained a respectful tone! Needless to say, I do feel pretty strongly about this issue.