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Could impending Prop 8 decision doom same-sex marriage?

Supporters of same-sex marriage are understandably giddy with excitement over the impending decision from U.S. District Judge Vaughn Walker. There’s pretty much universal agreement that the liberal-conservative tag team of David Boies and Ted Olson made an excellent and compelling argument for why the voter-approved Proposition 8 in California violates the U.S. Constitution’s guarantees of due process and equal protection. But the prospect of victory has me and more than a few others concerned about what may follow.

Perry v. Schwarzenegger
is not the only marriage equality case out there. Folks have their eyes on one out of Massachusetts. But no matter how Judge Walker rules in the Prop 8 suit, which is expected sometime this summer, the case is certain to be appealed to the federal Ninth Circuit and then to the Supreme Court. And therein lies the danger. If the current ideological makeup of the court doesn't change by then, the victory that could come at the hands of Judge Walker could turn into a defeat in the Roberts Court. And even if the justices put ideology aside, it might still be reluctant to impose its will on the country.

Jonathan Rauch wrote an excellent piece for the New York Times last Saturday that also expressed concern about same-sex marriage and the high court. The foundation of his argument was something Supreme Court nominee Elena Kagan said cast a spotlight on that latter point. “The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals," she said. "But the court must also recognize the limits on itself and respect the choices made by the American people.”

To understand the importance of that last sentence we need to go back to the 1986 ruling in Bowers v. Hardwick. This case involved two consenting adult gay men who were arrested for violating Georgia’s anti-sodomy law. Michael Hardwick challenged the law’s constitutionality in federal court. When the case reached the Supreme Court, the question before it was whether consensual sodomy by homosexuals was a fundamental right guaranteed by the Constitution. The answer was no in a 5-4 decision written by Justice Byron R. White. This is a key paragraph in the majority opinion to file away for a moment.

Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

The constitutionality of sodomy laws returned 17 years later in Lawrence v. Texas. The question before the Supreme Court in 2003 was “the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.” The 6-3 decision, which overturned Bowers v. Hardwick and invalidated anti-sodomy laws across the country, was written by Justice Anthony Kennedy. His majority opinion remains heralded as the most pro-gay decision to come from the high court. In a key rebuttal to Bowers, Kennedy wrote:

In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.

The historical trend between the two cases is obvious. In addition to recognizing the violation of equal protection and due process guaranteed under the Fourteenth Amendment, the Court in the Lawrence case also noted that society was moving away from criminalizing the consensual intimate relationships of same-sex couples. Unfortunately, the same cannot be said of society’s acceptance of marriage equality.

Yes, there has been progress, much of it within the last 10 years. Same-sex couples are able to legally wed in five states (Massachusetts, Connecticut, Iowa, Vermont, and New Hampshire) and, most recently, the District of Columbia. Maryland, Rhode Island and New York legally recognize marriages performed in other jurisdictions. But in that same period, 30 states passed constitutional amendments or statutes that define marriage as being between one man and one woman. In fact, the Wisconsin Supreme Court ruled unanimously on June 30 to uphold that state’s constitutional ban on same-sex marriage and civil unions. Remember what Kagan said about the court recognizing the limits on itself and respecting “the choices made by the American people”? Given the current landscape, it would be astounding if the court overturned the will of the people as expressed through state constitutions, acts of the legislature and at the ballot box.

Here’s something else to consider. The Massachusetts Supreme Judicial Court ruling that ushered in marriage equality there in 2004 also kicked off a push to enshrine discrimination in the Constitution through an amendment banning same-sex marriage. It went nowhere then. I’m not so sure today. Two-thirds of the states -- 38 -- are needed to amend the U.S. Constitution. As I just mentioned 30 states have already done it on their own. Or look at it this way, 45 of the 50 states currently do not permit same-sex marriage.

Legally speaking, the kindling is there for a controlled blaze confined to California or an inferno that could stop the national march toward marriage equality in its tracks possibly for decades either through a constitutional amendment (extremely difficult, but not impossible) or, as Rauch put it, through an “aggressively dismissive ruling” from the Supreme Court. All that’s needed is a spark. Right now, Judge Walker is the man holding the matches.

By Jonathan Capehart  | July 5, 2010; 10:35 PM ET
Categories:  Capehart  | Tags:  Jonathan Capehart  
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Comments

Capehart, you need to review your US Constitutional Law again. The requirement IS NOT two-thirds of the states to approve an amendment, but 3/4ths of the states must do so.

Given such a Supreme Court ruling would not possibly occur for a couple years and the reluctance many people would have for actually adding an amendment like that to the US Constitution, I simply don't find the threat sufficiently plausible. (In other words there would be a higher burden for the US Constitutional Amendment in the public's eye than merely a state one.)

Its also easy to see a ruling by the US Supreme Court which goes against the overturning of Proposition 8, but which leaves legal room for a future ruling entirely overturning DOMA due to the "full faith and credit" clause of the US Constitution. (This would pretty much effectively legalize Gay Marriage everywhere in the US.)

Posted by: Merdoch | July 5, 2010 11:27 PM | Report abuse

Good post. Unfortunately, this whole dispute re gay marriage mirrors our present society's desire to "have it all, right now!" I'm 67 and have grown up going to many marriage ceremonies. They all involved a man and a woman. Quite naturally that has colored my view of what the word "marriage" means. I have five sons and one daughter. They all could care less whether marriage is between a man and a woman or woman and woman or man and man. It's a generational thing. As a lawyer I am convinced that gays have a constitutional right to civil unions giving gays the same rights as civil marriages between a man and a woman. I just don't buy the argument re the labeling. Being raised in poverty I felt bad about being labeled "poor." Now that I'm middle class I'm no longer labeled "poor." Having more money available took away the "poor" label. Giving gay couples their constitutional rights in civil unions identical to the rights given to a man and woman in a union labeled a "marriage," in my opinion, satisfies the constitution. As we older folks fade away the labels will change. Why push it down people's throat? An no, I don't think that dire things will happen if gay marriage is recognized across the country. It eventually will be.

Posted by: Fergie303 | July 5, 2010 11:36 PM | Report abuse

Overwhelming popular opinion was against integration of the races in the Military but it happened ... also against interracial marriage ... but it was legalized. The marriage of same-sex couples takes nothing away from anyone except those who want to hold them up as inferior ... just as they did Blacks and those who married outside of their race.

Posted by: paris1969 | July 6, 2010 12:04 AM | Report abuse

I was dismayed by the tack taken by Olsen and Boies to make a generalized argument in favor of a constitutional right to gay marriage, rather than narrowly attack the validity of proposition 8. While Kennedy will probably side with the 4 liberals in upholding a right to gay marriage, I believe it plays a hand much like Roe did; inevitably causing decades of strife for skipping the political process. There is no doubt that Prop 8 is constitutionally invalid. Once a right is bestowed, no majority vote can nullify it. That should have been the approach of counsel, to limit their attack on the illegal stripping of a right already given. While the federal courts will find jurisdiction to hear the matter, they will inevitably reach a result that will not satisfy the parties in the long term.

Posted by: seve2yoo | July 6, 2010 12:05 AM | Report abuse

Full steam ahead, and destroy proposition 8. The religious reich can go to hell! Equality under the law means protection under the law.

I'm placing my boot heel on the necks of bigots! They disgust me!

Posted by: FlexSF | July 6, 2010 12:09 AM | Report abuse

Jonathan:

You really should have had an attorney review this before posting. Kennedy's majority opinion in Lawrence v. Texas rested solely on substantive due process grounds, not equal protection ones (as O'Connor's concurrence did). You also may have wanted to write a little bit about the legal issues involved, which, if you did, I didn't notice.

Posted by: CaliGirl22 | July 6, 2010 12:14 AM | Report abuse


Civilization and marriage itself will come down to exactly 1 judge: Kennedy. Isn't it sad that judges create laws and moral codes for us? I say with all due respect, marriage is a generative institution.

Posted by: dboc_991 | July 6, 2010 12:16 AM | Report abuse

Fergie303, you say that "Giving gay couples their constitutional rights in civil unions identical to the rights given to a man and woman in a union labeled a "marriage," in my opinion, satisfies the constitution. As we older folks fade away the labels will change. Why push it down people's throat?" With all due respect, if gay couples can't get married because of what you think about marriage, aren't you the one pushing your ideology down someone else's throat? Also, giving civil unions for some and marriage for others is segregation just like giving one drinking fountain to whites and another to coloreds, and we all know that separate isn't equal. We talk about labels, but we shouldn't forget that marriage is a legal contract, and justifying discrimination against gays because "it's a generational issue" is a sad and sorry excuse.

dboc_991, you say that "marriage is a generative institution". With all due respect back to you, marriage is a fundamental civil right (US Supreme Court) and specifically a legal contract between two people who don't have to necessarily love each other - they could literally not know each other as of five minutes ago but can still get married, as someone proved in Buffalo last year. But what really bothers me about your comment is that you think that marriage equals procreation. Does that mean that we outlaw marriages to senior citizens who can't reproduce anymore, as well as to those heterosexual couples who have defective reproductive organs? I dare say, your thinking comes from a very arrogant and supremacist way of thinking, not to mention narrow-minded (gay couples can raise kids all the same, and gay people may be nature's check against overpopulation, among other homosexual benefits to society), and if you are straight, you are no better or worse than anyone else.

RobertCurleyJacobs, homosexuality is not a matter of right or wrong - it is a natural and indifferent sexual orientation commonly found in virtually ever species on our planet. However, what I find to be a basis of right and wrong is treating people with respect or disrespect, and I wonder what your motive is for asking the question "Can I do a hoe in the eye socket?", because to me that question is rather bizarre and possibly incendiary. Honestly, your comment seems to come from a juvenile and ignorant place.

Posted by: SFNative76 | July 6, 2010 12:35 AM | Report abuse

Well, Jonathan, two points:

1) And what if the doomsday scenario you paint doesn't happen? Would we have been better off if Perry v Schwarzenegger had never been tried?

2) I gather you can get married in the District, which makes this feel like "I got mine. Don't jeopardize it, and if none of you can do the same thing, tough."

I'm a member of the suspect class of 36000 people whose marriage to their same-sex partners in California was upheld by the state supreme court because it was legal when we were married, and I'd rather the court understood that the equal protection claim in Lawrence applies to this too. Bowers, as you may have forgotten, was OVERTURNED by Lawrence.

Posted by: DaveinNorthridge | July 6, 2010 12:57 AM | Report abuse

Every time I read a discussion such as this, I have to remind myself that this is REAL, that I am living in the US in 2010 and there is a debate as to whether a certain group of people should be granted full rights of citizenship although they are a sexual minority.

How is it possible that we are still at this lunacy? If you don't want to marry someone of your sex, don't. Now, move on. Get a life. Stop wasting the nation's time and money.

Posted by: farnaz_mansouri2 | July 6, 2010 3:56 AM | Report abuse

To those of you using the Bible as a weapon against homosexuality, you are wrong. Homosexuality is not a sin. The Bible is constantly being taken out of context to support anti-gay views. Scholars who have studied the Bible in context of the times and in relation to other passages have shown those passages (Leviticus, Corinthians, Romans, etc) have nothing to do with homosexuality. These passages often cherry-picked while ignoring the rest of the Bible. The sins theses passages are referring to are idolatry, Greek temple sex worship, prostitution, pederasty with teen boys, and rape, not homosexuality or two loving consenting adults.


http://www.soulfoodministry.org/docs/English/NotASin.htm
http://www.jesus21.com/content/sex/bible_homosexuality_print.html
http://www.christchapel.com/reclaiming.html
http://www.stjohnsmcc.org/new/BibleAbuse/BiblicalReferences.php
http://www.gaychristian101.com/

Posted by: shadow_man | July 6, 2010 4:39 AM | Report abuse

For those of you claiming homosexuality is a "lifestyle", that is a false and ignorant statement. Homosexuality is not a choice. Just like you don't choose the color of your skin, you cannot choose whom you are sexually attracted to. If you can, sorry, but you are not heterosexual, you are bi-sexual. Virtually all major psychological and medical experts agree that sexual orientation is NOT a choice. Most gay people will tell you its not a choice. Common sense will tell you its not a choice. While science is relatively new to studying homosexuality, studies tend to indicate that its biological.

http://www-news.uchicago.edu/releases/03/differential-brain-activation.pdf
http://www.newscientist.com/channel/sex/dn14146-gay-brains-structured-like-those-of-the-opposite-sex.html
Gay, Straight Men's Brain Responses Differ
http://www.foxnews.com/story/0,2933,155990,00.html
http://www.livescience.com/health/060224_gay_genes.html
http://www.springerlink.com/content/w27453600k586276/

There is overwhelming scientific evidence that homosexuality is not a choice. Sexual orientation is generally a biological trait that is determined pre-natally, although there is no one certain thing that explains all of the cases. "Nurture" may have some effect, but for the most part it is biological.

Posted by: shadow_man | July 6, 2010 4:41 AM | Report abuse

The National Library of Medicine pubs confirm that sexual orientation is natural, biologically induced in the first trimester of pregnancy, morally neutral, immutable, neither contagious nor learned, bearing no relation to an individuals ability to form deep and lasting relationships, to parent children, to work or to contribute to society.

From the American Psychological Association: homosexuality is normal; homosexual relationships are normal.

The American Academy of Pediatrics, American Psychological Asociation and American Psychiatric Asociation have endorsed civil marriage for same-sex couples because marriage strengthens mental and physical health and longevity of couples, and provides greater legal and financial security for children, parents and seniors.

America's premier child/mental health associations endorse marriage equality.

Posted by: shadow_man | July 6, 2010 4:50 AM | Report abuse

Another veiled attack on people of faith.

The constitution protects the right of people of faith to believe that the Bible prohibits certain things.

We are not 'phobes' of any kind because we believe in the Holy Word of God. We are perfectly normal.

The Bible is literal and quite clear that this activity is not permitted.

Our freedom of religion permits us to believe that these acts between people are wrong. Our government allows us, as the majority, to enact these beliefs into law.

Many other laws on the books are similar, like laws against adultery, cruelty to animals, etc. They are based on basic religious revulsions that do have the right to be enacted.

I am aware that this bothers people who claim their rights are being disregarded. Well. We are only blocking them from grabbing our institution of marriage and using it for what the Bible literally abhors.

If you don't like it go create your own religious institutions. Don't twist ours.

And please--the Constitution explicitly protects our right to our religious beliefs. Back off, buddy!

Posted by: Jerusalimight | July 6, 2010 5:28 AM | Report abuse

Regardless of whether or not the Bible says homosexuality is a sin (btw, it doesn't), gay marriage must be legal; this is a fourteenth amendment issue.

Churches must be removed from the marriage business altogether. Marriages should be performed by civil servants. Churches that discriminate against gays and/or women should have their nonprofit status revoked and become ineligible for state funding of any kind.

You want to discriminate? Fine. Do it on your own dime.

Posted by: farnaz_mansouri2 | July 6, 2010 6:03 AM | Report abuse

laws voted on by the majority are overturned by special interest fools and whining judges. next up is AZ where the illegal cause will join the homosexual cause to continue to this BS

Posted by: pofinpa | July 6, 2010 6:17 AM | Report abuse

@RobertCurleyJacobs You are an idiot. You do realize that "Sodom and Gommorah" means "fire and ash" right? It's not short for "sodomy and gonnoreah" or whatever you thought is sounded like phonetically. I hate when hicks jump in thinking they have something clever to add. P.S. Marriage, as defined in the days of Sodom/Gommorah was a property agreement where women had no rights and were traded for land, polygamy was also very common. Is that where you would like to return to? That is the traditional form of marriage!

Posted by: joshmiller602 | July 6, 2010 6:30 AM | Report abuse

@Jerusalimight I was always told that faith, and belief, are personal. A "personal" relationship with god right? Isn't that how it should stay? Forcing your belief on others, as if you were god, is wrong. (PS The bible does not force any beliefs. You can choose to do what it says or not. You can even choose not to believe, or to eat forbidden fruit, etc.) Morality requires freedom, without free will morality could not exist. But you look to block freedom, block rights, to impose your personal belief onto the masses, even though it does not affect your life at all. If that is not just pure bigotry for bigotry's sake, then I don't know what is.

Posted by: joshmiller602 | July 6, 2010 6:39 AM | Report abuse

There is simply no rational or logical reason to deny gays, lesbians, or anyone else the right to marry. But then - historically speaking - logical, rational thought has never been a requirement for creating public policy, so there's no reason to think it will have any impact on the current debate...

Posted by: Nemo5 | July 6, 2010 7:04 AM | Report abuse

With the Supremes reasoning they dare not buck public will, no wonder President Lincoln had to fight a war to free the slaves and another century had to pass before the invention of television gave enough Americans a clue as to the need for a civil rights bill to force the South to give up apartheid. If the Supremes can't see fit to defend the Constitutional rights of all Americans, what good are they?

Posted by: jhbyer | July 6, 2010 7:17 AM | Report abuse

Well, I for one am glad the Supreme Court in 1976 did not wait for the country to come around before ending bans on interracial marriages!

At the time, well over 70% of the U.S. population overall (from states with and without bans) was outraged, and a majority of the populace rejected "race mixing" for years to come.

Conversely, nearly half of the American people today, according to multiple polls, favor marriage equality for gays and lesbians. Roughly two-thirds favor legal recognition through marriage or civil union.

So, according to Capehart, progress toward equality in America must be deferred indefinitely because it upsets only about a third of the people, many of whom are driven by a desire to write their religious beliefs into the U.S. Constitution? What kind of country is this?

Posted by: S1VA | July 6, 2010 8:03 AM | Report abuse

It's time. It's the 21st century.

As a justice of the peace, I perform non-religious civil marriages for opposite-sex and same-sex couples in CT all the time.

Recently I officiated for two young women before their rehearsal dinner at their Episcopal Church, where they were married the next day surrounded by their families and friends. As a justice of the peace, I signed the marriage license and returned it to the town clerk who and recorded it.

Kudos to CT where marriage equality was legalized in 2008, and where couples come here to wed from around the country.

Onward,
Joe Mustich, Justice of the Peace,
Washington, Connecticut, USA.

Posted by: cornetmustich | July 6, 2010 8:14 AM | Report abuse

Old news, Jonathan. This is why lots of people were unhappy when Boies and Olsen decided to bring the suit.

But they did. So what are you suggesting -- that it would be better for the trial judge to rule against them?

The best scenario might be a victory at the trial court and a loss in the appeals court. Get findings of fact on record that, when pressed, the religious crowd couldn't provide a shred of evidence that gay marriage threatens straight marriage. Then lose in the Ninth Circuit, don't appeal, and save the legal challenge for a more congenial Supreme Court.

But my assumption is that Boies and Olsen took this case with the expectation that, win or lose, they are headed to the Supreme Court. The die is cast -- at this point we can only hope for the best.

Posted by: Meridian1 | July 6, 2010 8:19 AM | Report abuse

Marriage means husband and wife, as any seven year old anywhere on the planet can tell you.

There is no individual "right" to demand that society pretend otherwise.

Posted by: thebump | July 6, 2010 8:26 AM | Report abuse

Mr. Capehart woudl do well to remember Justice Scalia's dissent in Lawrence vs. Texas. He said that if sodomy laws were struck down then gay marriage was inevitable.

Slow curtain. The end.

Posted by: cllr | July 6, 2010 8:48 AM | Report abuse

"Many other laws on the books are similar, like laws against adultery, cruelty to animals, etc. They are based on basic religious revulsions that do have the right to be enacted.

I am aware that this bothers people who claim their rights are being disregarded. Well. We are only blocking them from grabbing our institution of marriage and using it for what the Bible literally abhors.

If you don't like it go create your own religious institutions. Don't twist ours.

And please--the Constitution explicitly protects our right to our religious beliefs. Back off, buddy!"
------------------------------------------

You need some help in reading the Constitution. The 1st amendment also says, in express words, that laws cannot be based on religion. It's referred to as the "Establishment Clause." So, the bible(s), Qur'an, etc., cannot be the basis of law in the U.S. Like it or go live with the Taliban or in Iran, where you will probably agree more with their style of government.

Posted by: mightysparrow | July 6, 2010 8:51 AM | Report abuse

Could letting The People decide doom same-sex marriage? Heaven forbid. It is the government's job to overrule The People.

Posted by: kitchendragon50 | July 6, 2010 8:54 AM | Report abuse

I find it interesting that a lib paper like the WaPo LOVES gay marriage but can't stand the idea of prayer in the class room. Government needs to stay out of the religion business just like religion needs to stay out of government. Ask yourselves, if gay marriage is upheld, how long before the ACLU sue the Catholic church over its refusal to marry gay couples? I have no problem with civil unions, but you Dem's have got to stop screaming Church and State only when its convenient and scores political points.

Posted by: elcigaro1 | July 6, 2010 8:56 AM | Report abuse

Marriage means husband and wife, as any seven year old anywhere on the planet can tell you.

There is no individual "right" to demand that society pretend otherwise.

Posted by: thebump
--------------------------------
It only means that beacuse we decided it did and taught that to the kids. Technically marriage is a civil contract that give two people certain state and federal rights. Its more like a business license. What the religious individuals can't seem to understand is that marriage ( the civil act) and holy matrimony *(the religious act) are two completely different things. More and more couples, including many, many straight ones do not have any religious involvement in their marriage. Justices of the peace perform marriages all the time. It two people wish to have their church involed thats fine for them, but it is absoluted not required and in fact with out the civil state/legal side doesn't even exist outside of that church. So kindly leave the your church out of my civil rights and laws.

Posted by: schnauzer2 | July 6, 2010 8:59 AM | Report abuse

To Jerusalimight:

"The Bible is literal and quite clear that this activity is not permitted." - which Bible? The King James Version? New Revised Standard Version? New Interpreter's Version? And in which language? English? Greek? Hebrew? or Aramaic? There is no "literal" Bible, there are multiple voices and multiple interpretations of those voices, all of which should be honored.

"Our freedom of religion permits us to believe that these acts between people are wrong." - Which religion? Christianity? Islam? Hindu? Wicca? There is a reason why church/state separation is enshrined in the Constitution. It frees people to practice their faith, as well as not to practice any faith at all, and the government shall not pass any laws with respect to them.

Posted by: SubRosa2 | July 6, 2010 9:16 AM | Report abuse

Keep in mind that of the five states with "legal" gay marriage, all five were the result of judical fiat, albeit in some enabling legislation was passed to implement the court's decision. The fact that an amendment went nowhere in Massachusetts was due to two things: the Democratic-controlled legislature had to initiate any constitutional referendum, and the only one they were willing to consider gave voters the "choice" between civil unions and gay marriage, which ain't much. The day the gay marriage people can win a vote of the people in any state, then that's fine with me. Until then, it's unelected judges (in most cases) imposing their will.

Posted by: Nemo24601 | July 6, 2010 9:34 AM | Report abuse

"Its also easy to see a ruling by the US Supreme Court which goes against the overturning of Proposition 8, but which leaves legal room for a future ruling entirely overturning DOMA due to the "full faith and credit" clause of the US Constitution. (This would pretty much effectively legalize Gay Marriage everywhere in the US.)"
------------------------------------------------------
Oh yes, the Full Faith and Credit clause. I plan to invoke that clause the next time I am in New York carrying my concealed weapon, a hand gun. After all, I have a permit to do so issued by my home state.

Posted by: Lazarus40 | July 6, 2010 9:34 AM | Report abuse

kitchendragon50 said: "Could letting The People decide doom same-sex marriage? Heaven forbid. It is the government's job to overrule The People."
---------------------------------------

kitchendragon50: as you were supposed to learn in introductory civics as a child, it IS the Courts' job to overrule the people, when the people wish to deny any citizen's constitutional rights.

Posted by: mightysparrow | July 6, 2010 9:41 AM | Report abuse

"Posted by: schnauzer2

The only "right" you have q ueer is the right to ST FU!"
--------------------------------------

A perfect example of why we need the courts to protect the constitutional rights of all citizens. For now, gays and lesbians are unpopular. Next, it might be you.

Posted by: mightysparrow | July 6, 2010 9:45 AM | Report abuse

"Technically marriage is a civil contract that give two people certain state and federal rights. Its more like a business license."

And yet, civil unions, with all the same rights and privileges is unacceptable. The advocates insist it be called marriage.

Posted by: kitchendragon50 | July 6, 2010 9:56 AM | Report abuse

Arrest and condemn to God's eternal vengeance the filthy heterosexuals who sometimes practice sodomy, too.

Posted by: areyousaying | July 6, 2010 9:59 AM | Report abuse

All you "church ladies" need to get over the idea that "marriage" belongs solely to religious institutions. Please note... You don't have to have a ceremony in a church to get married. JPs marry folks all the time in this country who chose not to marry "in the church." I daresay that they also marry athiests every day as well. Are their marriages invalid because they carry no "religious blessing?"

So while you may personally chose to marry in a church, at it's foundation, in this country at least, marriage is first, foremost and legally a civil contract. And getting married in a church adds not one iota to the legal legitimacy of a marriage.

For what it's worth though, deny church weddings to gays all you want. However, constitutionally, it is wrong, inequitable and unjust to deny them access to the civil contract of marriage (and all of the rights, responsibilities & benefits attached) because it upsets your precious religious non-sensabilities.

In many ways, this should actually be a "separation of church and state" issue and religion should be told to "butt out!"

Posted by: wildfyre99 | July 6, 2010 9:59 AM | Report abuse

The only "right" you have q ueer is the right to ST FU!

Posted by: trippermeow

How "Christian" of you. Did you learn that in Sunday School?

Posted by: areyousaying | July 6, 2010 10:03 AM | Report abuse

Erm, Maryland does not recognize same-sex marriages performed out-of-state. The Maryland Attorney General has issued an opinion recommending that the state recognize those marriages, but it is only an opinion and while state agencies are expected to abide by it, it has no force of law. Rhode Island is similarly situated, operating based on the Attorney General's opinion but with no binding law in place.

Posted by: Gonzai | July 6, 2010 10:15 AM | Report abuse

Mr. Capehart,

The Wisconsin Supreme Court has not ruled on the constitutionality of same-sex marriage.

It issued a technical ruling about a two-part ballot initiative that passed in an earlier election. Initiatives in that state, as in many, may only concern a single issue. The court ruled that the initiative did indeed consist of a single issue- the definition of marriage. That's it. It did NOT rule on the marriage issue at all.

You also mention 30 states that passed laws, or amended their constitutions, to forbid same-sex marriage. Oddly, you failed to mention that these laws represent no groundswell of opposition to same-sex marriage, as ALL states already forbid same-sex marriage until recently. The 30 laws passed did nothing! Their only effect was to tie the hands of their own state courts.

With this, and your gaffe about the number of states required to amend the US Constitution, hollows out your argument to the point of collapse.

The trend is opposite to your claim; to quote MLK, "Let us realize the arc of the moral universe is long but it bends toward justice."

Posted by: tomhenning | July 6, 2010 10:15 AM | Report abuse

Why aren't the superstitious nuts calling for banning adultery? It's one of the ten commandments, isn't it? Because religious conservatives are hypocrites and bigots! They patronize prostitutes of both sexes and all ages then deign to tell others how to live their lives. If we made adultery illegal, we could probably throw all of these phony creeps in jail.

Posted by: dnahatch1 | July 6, 2010 10:24 AM | Report abuse

Jeez, can't the sexaully phobic flat- earthers find another issue to focus their time and energy on in the 21st centurY?

Onward to full civil and marriage rights in the 21st century,
Joe Mustich, Justice of the Peace,
Washington, Connecticut, USA.

And kudos to CT for supporting marriage equality since 2008.

Posted by: cornetmustich | July 6, 2010 10:47 AM | Report abuse

The "gay marriage" issue currently being deliberated in California, and soon to be heard in the Supreme Court, frames for me, the notion that America has become a country of uneducated, low class people, who can easily be manipulated with the most specious of arguments. I submit, this is why many people from around the want American freedoms and American wealth, but very few want American culture (if you can call it that.)

Hovering around #50 on the world educational attainment scale does not say much for a country that purports to be "the leader of the free world". The question then becomes, "leading the world where?" Surely, any rational thinking person would see those who are pushing to have gay marriage recognized as being sanctioned by the founding fathers and the Goddess herself, as the snake oil peddlers they are.

We as a nation should spend far more time educating our citizens, to read, write, think for themselves and most of all develop some culture (class).

Posted by: thommie1 | July 6, 2010 10:50 AM | Report abuse

In fairness to Jonathan, while he slipped and said that two-thirds of the states are necessary for ratification of a constitutional amendment rather than the correct three-fourths, the number he specified--38--is correct. 38 is three-fourths of the states.

As I already wrote to Jonathan, I think his post is more reasonable than Rauch's NYT op-ed, because Capehart acknowledges that Boies and Olson made "an excellent and compelling argument" while Rauch does not. Capehart is concerned about the wisdom of proceeding with Perry given the risk that a SCOTUS victory in the case could provoke a constitutional amendment. Unlike Capehart, Rauch does not make the point that Judge Walker is "holding the matches," but instead suggests that what he calls "judicial modesty" (essentially, avoiding unpopular rulings) is not only the wiser course for reasons of political strategy but is also constitutionally correct. By that reasoning, Brown v. Board was wrongly decided.

Even though Capehart comes out roughly in the same place as Rauch, his praise for the quality of the argument by Boies and Olson is a significant difference from Rauch. I too fear that pressing ahead with Perry is risky given a closely divided SCOTUS. But that horse has left the barn, as has the horse of a broader case as opposed to a narrower case. Given the broad case Boies and Olson are pressing, I am pleased at the painstaking thoroughness with which they've made it. And I am appalled at Rauch's difference from Capehart (which I wish Capehart would ackowledge) in suggesting that an eventual favorable SCOTUS ruling in Perry would be illegitimate on account of being unpopular.

No. The Equal Protection Clause does not include the qualifying phrase, "unless a majority of voters decides otherwise." Yes, constitutional amendment is an option, but that is a high bar. The gradual shift in public opinion toward support for same-sex marriage means that ratifying an anti-gay-marriage amendment in the statehouses (even assuming you can get the 2/3 needed in both houses of Congress) becomes harder with every year that passes. Perry won't reach SCOTUS for a few years. Time and demographics favor equality.

Given that Perry is proceeding whether it makes me nervous or not, I putting my money on the side of a concept engraved above the entrance of SCOTUS: Equal Justice Under Law.

Posted by: 17thStRick | July 6, 2010 10:51 AM | Report abuse

Bigots ?

The of-so-liberal French do not support or permit gay marriage. Instead taking the traditional view that man-woman marriage is an important facet of the family.

Are they bigots for permitting civil unions ?

Is the gay singer/performer Elton John a bigot for supporting civil unions ?

Is President Obama a bigot for supporting traditional marriage between a man and a woman ?

Posted by: Petras123 | July 6, 2010 11:00 AM | Report abuse

The times may change but people stay just as fearful and ignorant. Segregation and the term "woman's work" seem silly to us now. Yet, we sit here debating what to call same sex unions. "Let it be anything, save marriage in name." How comforting. Live your life and let others live theirs. No one's marriage is any concern of the next party, regardless of gender. True freedom and equality is the ability to live one's life without being interfered with. Try it. Minding your own business can liberating.

Posted by: rcvinson64 | July 6, 2010 11:01 AM | Report abuse

thommie1, your assertion that people around the world do not embrace American culture is laughable on its face. Yeah, that's why news reports in recent years have even shown young Iranians enjoying American music.

The vast majority of gay-rights advocates like myself are NOT saying that the Founding Fathers or the Goddess would agree with us. I don't care what the Goddess might think; we live in a secular democratic republic. You know this, therefore you know full well that your personal religious beliefs are not a legitimate basis for denying me constitutional protections.

As it happens, the 14th Amendment was proposed by Congress in 1866 and ratified by the states in 1868--eight decades after the original Constitution was drafted. That alone is sufficient to demonstrate that your static conception is wrong. As General Kagan said in her testimony last week, the Supreme Court must apply the principles stated in the Constitution to the facts of a given case and the current circumstances. We are not in 1789 or 1869.

Also, not incidentally, gay people exist and we are not going away. We are claiming our birthright as Americans to equal protection of the law, and we are going to get it. - Rick Rosendall

Posted by: 17thStRick | July 6, 2010 11:05 AM | Report abuse

Homosexuality is as biologically normal as pedophilia or necrophilia.

Homosexuality was rightly classed as a mental illness until a 3 to 2 vote by the governing body of American psychiatry in the early 1970's at a convention where no papers on related topics were presented...a "global warming" bit of political science...

There are no "gay/homosexual rights"...just the normal Constitutional rights all Americans have...and rewording precedent is not one of them.

Find a cure for homosexuality and make the world a better place.

Posted by: georgedixon1 | July 6, 2010 11:07 AM | Report abuse

"Could impending Prop 8 decision doom same-sex marriage?"
----

I hope so.

Posted by: lindalovejones | July 6, 2010 11:17 AM | Report abuse

Let's hope it dooms homosexual "marriage".

Everybody knows that homosexual "marriage" is a hollow sham that exists only in the minds of sexually disoriented activists.

This whole charade is an expensive diversion from America's real problems.

Like hunger and poverty.

Our dependence on oil from terrorist regimes.

Diseases and disabilities, etc.

Come on! Get real.

Posted by: battleground51 | July 6, 2010 11:17 AM | Report abuse

JoshMiller:

Just to repeat, it is quite kosher to legislate morality. As this very article states, the act of sodomy was prohibited by almost all the states at the very time that your precious Bill of Rights and Constitution were being enacted. Obviously those laws were okay.

In addition, we continue to maintain on the books hundreds of laws that are founded solely upon religious or other feelings of morality. Polygamy, consensual relationships with minors, animal cruelty, and so on, and so on, are all 'unfair' prohibitions that are based solely upon religious or other moral revulsions.

And we are not talking even about a prohibition of the act. We are just drawing a red line to keep people doing this act it from claiming 'marriage,' which is a religious union--as opposed to a civil union! Marriage belongs to religion, for goodness' sake. It is not a hookup.

Subrosa:

The original Hebrew Bible calls this act between men a 'toeva,' which unequivocally means an abomination. It further states that people who practice it God 'spits out.' All other Bibles are only translations. I'm quite fluent in Hebrew, thank you very much.

Posted by: Jerusalimight | July 6, 2010 11:18 AM | Report abuse

robertcurleyjacobs, you can stick a hoe in any orifice you'd like if that makes you feel good. What you do to yourself in your home is none of my or anyone else's business. Just like whatever someone else does is none of yours.

Posted by: mikel7 | July 6, 2010 11:25 AM | Report abuse

"There are no "gay/homosexual rights"...just the normal Constitutional rights all Americans have."
******
Georgedixon1, you are absolutely correct. So, you are all for gays getting married, then, because they must have all the rights Americans have. Therefore, gays have the right to marry. Thanks for clearing that up for us and that you support all gays or straights as Americans having the same rights.

Posted by: mikel7 | July 6, 2010 11:29 AM | Report abuse

Our freedom of religion permits us to believe that these acts between people are wrong. Our government allows us, as the majority, to enact these beliefs into law.
------------------------
You may believe what ever you like, per the Constitution, buit it does not give you the right to force those beliefs onother people, especially if it violates any other part of the Constitution, like equality and protection under the law.


*******************************

Many other laws on the books are similar, like laws against adultery, cruelty to animals, etc. They are based on basic religious revulsions that do have the right to be enacted.
----------------------------------
Many countries that have either a wholy secular government or ones based on a not abrahamic religion have these same laws. HAd nothing to do with the bible for them, so saying its soley becasue of it here doesn't work.

***************************
I am aware that this bothers people who claim their rights are being disregarded. Well. We are only blocking them from grabbing our institution of marriage and using it for what the Bible literally abhors.
-------------------------
And when was it decided that the civil/legal situtation of marriage was YOUR's to do with as you see fit? How will any single marriage that currently exists be changed if gays could marry?

****************************************

If you don't like it go create your own religious institutions. Don't twist ours.
---------
How totally egotictical to think YOU have the only religion. Or is it you feel you have the only religion that is actually important.

*****************

And please--the Constitution explicitly protects our right to our religious beliefs. Back off, buddy!
-------------------------
And it also protects OUR freedom from being affected by those beliefs. There is no state religion and no requirement to belong to one.

I love how so many christian can pick and choose which of the "abominations" should be followed and which don't really mean anything. Are their stages of "abomination-ness".

"They (shellfish) shall be an abomination to you; you shall not eat their flesh, but you shall regard their carcasses as an abomination." (Leviticus 11:11)

"Do not cut the hair at the sides of your head or clip off the edges of your beard." (Leviticus 19:27)

"Everyone who acts unjustly is an abomination to the LORD your God" (Prov 11:16)

Charging or paying interest are abominations. Bankers and anyone with a mortgage, car loan or credit card debt will be unavailable to throw the first stone, regardless of the interest rate (Psalm 15:1-5, Jeremiah 15:10).

It goes on and on, yet the one on Homosexuality is the only one they seem to feel god really meant.

Posted by: schnauzer2 | July 6, 2010 11:32 AM | Report abuse

Actually, the legal difference between the two cases you referenced in the article is that the law in Georgia outlawed sodomy for *everyone* and the law in Texas outlawed it for *gay people*.

The Justices upheld the Georgia law because it was not discriminatory, i.e. did not single out a specific group for the law but rather applied it to everyone. The law in Texas was struck down because it was only applied to a specific group (gay people)...making it discriminatory.

Prop 8 in California, again, singles out a group (gay people) for specific treatment. If they had banned marriage for everyone the arguments against the law would be completely different.

I agree with the poster who said you should get your articles and/or facts checked by an attorney. At least TRY and have the correct legal argument!

Posted by: EqualityFirst | July 6, 2010 11:33 AM | Report abuse

georgedixon1 writes, "Homosexuality is as biologically normal as pedophilia or necrophilia." Mr. Dixon, presumably you oppose pedophilia and necrophilia as being indecent. (I agree.) That suggests you have a sense of decency. Yet you commit the indecent act of equating my love for another adult man with pedophilia and necrophilia. It is no kind of credible argument to cite an old position that was abandoned by the APA nearly four decades ago, with which the overwhelming majority of professionals agree was wrong, and which is refuted by the peer-reviewed science (as distinct from junk science like that of Paul Cameron and other frauds).

lindalovejones (your middle name, BTW, seems inapt), you are whistling past the graveyard. Scare-quoting marriage will not make gay people go away and will not persuade the growing percentage of Americans who respect our right to equal protection of the law.

Jerusalimight, marriage does not "belong" to religion. First of all, there is no generic "religion" to which something could be said to belong. Second, the entire political debate over same-sex marriage is about the civil institution of marriage and whether same-sex couples shall be included in it--not whether this or that religious group should be compelled to approve of it. There are hundreds of gay-affirming clergy in D.C. who are prepared to officiate at gay weddings; we hardly need to go someplace where we are not welcome. And of course there is the option of using a justice of the peace.

Defending civil marriage equality for gay people does not remotely require banishing all moral considerations from the law. But merely raising a moral concern does not constitute a compelling argument. And, as has been noted, laws and societies change over time. It may be convenient for some, whose perspective is rooted in religious fundamentalism, to treat marriage and the law as static, unchanging, and eternal. But the historic evidence shows otherwise. Wives used to be treated as chattel. That is intolerable now. Hostility toward gays is not an argument. Aside from whether opponents of civil marriage equality are bigots, they are wrong. And they are on the wrong side of history.

Posted by: 17thStRick | July 6, 2010 11:35 AM | Report abuse

17thStRick:

Sorry, but religion cannot be claimed by just anybody for anything. That's the whole point of this discussion.

Otherwise someone could say that his 'religion' requires him to commit all kinds of sins, bigamy, etc. Why? It's obvious why.

Religion gets great breaks from the government. It is protected. Everybody wants to get under that umbrella. But they cannot.

Example: The courts long ago refused to allow tax exemptions for institutions that were obviously fakes set up to dodge taxes.

Another example: LDS practitioners with devout beliefs and multiple wives get dragged into court. Why? You should say they can have all the wives they want because they are under the 'religion' umbrella. Yet you would admit they cannot.

Marriage is by definition a religious institution. Otherwise you would be satisfied with civil unions.

But you do not want a corporation. You want 'marriage,' for many reasons that are exactly why I do not want you to have it. To be an example to our children. To flaunt your lifestyle as fully kosher, even according to religion.

Back off, buddy.

So the question is this: do a large number of practicing religious leaders' opinion define what is religion or not? (It doesn't in the LDS church!) Or do the voters go to the polling booth and set that definition down by their vote?

I say vote it up or down.

I regret that you are disappointed that you will not be able flaunt your behavior like you want. But back off!

Posted by: Jerusalimight | July 6, 2010 11:54 AM | Report abuse

RE: Jerusalimight - Absolutely! The Constitution explicitly defines your right for free and unabridged religious worship. Your solution suggests that gays form their own. We have. I want to get married in my church just the same as you in yours.

Laws prohibiting marriage are in direct violation of the 1st Amendment. In the same vein, a law forcing your church to perform a marriage between two men would also be unconstitutional.

All Americans are immigrants, either first generation or sons and daughters of immigrants. A nation of refugees out of countries that forced a single interpretation of religion. It caused war, starvation, and death. (Crusades, the Inquisition, 30-Years War, 100-Years War, and on and on...)

The free exercise of religion, both yours and mine, breaks the cycle of endless religious war. It allows us to raise our families in peace.

Posted by: DCwriter1 | July 6, 2010 12:00 PM | Report abuse

DCwriter1:

So now we know that you support the LDS church practicing polygamy. I don't. We don't.

Likewise bestiality, animal torture, and other beautiful new 'religious' practices that anyone can practice. All permitted, because they will newly be defined as 'religion??!'

Hey, why not theft? Come on.

Religion is not a tent that just anyone can get under. Religion means today exactly what it meant when it was granted the special freedoms in the (2nd?) amendment.

Who defines it? The voters define it. Not the legislate-from-the-bench activist judges.

Posted by: Jerusalimight | July 6, 2010 12:08 PM | Report abuse

You make the following claim: There’s pretty much universal agreement that the liberal-conservative tag team of David Boies and Ted Olson made an excellent and compelling argument for why the voter-approved Proposition 8 in California violates the U.S. Constitution’s guarantees of due process and equal protection.

However, the argument does not carry weight with the American people. Therefore, it is not compelling outside of your little tight-knit circle.

Posted by: RhymesWithRight | July 6, 2010 12:10 PM | Report abuse

Sorry, it is the 1st amendment.

2nd is the right to bear arms.

Posted by: Jerusalimight | July 6, 2010 12:11 PM | Report abuse

A fogeyish 73, I like Fergie303's comment.

Gays should be able to have civil ceremonies, unimpeded; churches can accept or deny attempts by gays to have "church weddings."

The tide of history carries the flow of human rights and the ebb of religious authoritarianism.

As the old song goes, "whose side are you on?" "Time and tide wait for no [person]."

Posted by: mini2 | July 6, 2010 12:23 PM | Report abuse

Homosexuality is not an objective condition. Unlike race or gender, there is no test (dna, chromosome, blood, whatever...) that could identify whether a person is gay or not.... the "condition" exists entirely in the head of the person.

Gender is an objective condition. One's identity as a male/female trumps one's "identity" as so-called gay or straight.

Marriage laws do not violate equal protection because everyone is allowed to marry someone of the opposite gender. Thus, no gender is disadvantaged. Someone who believes he/she is attracted to someone of the same gender is entitled to pursue that relationship but if they want that relationship recognized as a marriage then they must choose someone of the opposite gender. There is no social benefit in recognizing gay marriage. Society doesn't recognize marriage or give benefits to couples because it is in the couple's best interest but because it is in society's best interest and true marriage is the natural basis for making babies and forming families. The fact that some couples due to age or infirmity cannot have children does not change the fact that the union of a man and woman is the only way to create a family.

Indeed, the whole POINT of gender is marriage. The reason gender even exists is so that people of opposite genders could join in marriage. Whether you believe the biblical account in Genesis 2 or not, you have to at least recognize that from the beginning of time, humans recognized that marriage involved the joining of at least one man and one woman. (I say "at least" because some culture accepted polygamy, which is still more justified than "gay" marriage because it maintains the dual gender basis for marriage.)

The analogy with interracial marriage is preposterously flawed. Bans on interracial marriage, as best as I can tell, have only existed in South Africa, Nazi Germany, and the United States and all three had racist motivations. It wasn't that they didn't believe the union of a black and white wouldn't be a marriage, it was because they didn't want mixed race children. So even interracial marriage bans implicitly recognized that the primary purpose of marriage was to create children and families. Outside of those three anomolous examples, interracial marriage has existed in every culture in human history.

Gay marriage on the other hand is an entirely newfangled proposition, having been proposed only in the last 40 years of human history. Marriage laws were not created to invidiously discriminate against gay people, unlike bans on interracial marriage. Sexual orientation was never a consideration.

Gay people are perfectly capable of loving and having sex with those of the opposite sex. It may not be ideal if they struggle with same sex attractions but there is no doubt that they can do it because there are plenty of cases of "gay" men marrying women, having children with those women, and then "discovering" later that they are "gay."

Posted by: drbill21 | July 6, 2010 12:25 PM | Report abuse

The whole gay marriage thing is so easy to solve. The Supreme Court should take the case and fix it in less than an hour.

Step 1: Accept the historical definition of the term, "marriage" as a religious union of a man and a woman.

Step 2: Define the term "civil union" to be a consensual and contractual relationship between two or more people for the purposes of mutual mental, emotional, and financial support, or child care, recognized by law.

Step 3: Declare the condition of marriage to be a matter of separation of church and state.

Step 4: Require the term "marriage" be replaced with the term "civil union" in all law references.

BINGO. The man & woman marriage issue is preserved, and all unions gain the full legal protections currently enjoyed by married couples.

And if that's not good enough, then it's proof that the GLBT coallition is not interested in equality.

Posted by: mhoust | July 6, 2010 12:30 PM | Report abuse

From Jerusalimight:

"The original Hebrew Bible calls this act between men a 'toeva,' which unequivocally means an abomination."

Shellfish are also called an abomination. Eaten any shrimp or crab lately?

Posted by: SubRosa2 | July 6, 2010 12:41 PM | Report abuse

Basing equality on something--anything--that contradicts a natural law is foolish and ought not to be legal. You can make any kind of behavior legal if a majority in a domocracy wishes to do so, but it will never make it right.

What we call marriage is based on the natural complementarity of a man and a woman. Two individuals of the same sex cannot complement each other in that same, eminently physical way that two heterosexual people do. A gay relationship is simply not equal to a heterosexual relationship.

Religion takes this same position, but making an argument that depends on religious values alone is not necessary to understand this plainly observable fact.

Posted by: Bluefish2012 | July 6, 2010 12:47 PM | Report abuse

Basing equality on something--anything--that contradicts a natural law is foolish and ought not to be legal. You can make any kind of behavior legal if a majority in a domocracy wishes to do so, but it will never make it right.

What we call marriage is based on the natural complementarity of a man and a woman. Two individuals of the same sex cannot complement each other in that same, eminently physical way that two heterosexual people do. A gay relationship is simply not equal to a heterosexual relationship.

Religion takes this same position, but making an argument that depends on religious values alone is not necessary to understand this plainly observable fact.

Posted by: Bluefish2012 | July 6, 2010 12:49 PM | Report abuse

And we are not talking even about a prohibition of the act. We are just drawing a red line to keep people doing this act it from claiming 'marriage,' which is a religious union--as opposed to a civil union! Marriage belongs to religion, for goodness' sake. It is not a hookup....
Posted by: Jerusalimight

So then the millions of atheists or anyone who was joined by a JP outside of a church are not really married? They are civil-unioned? What a bunch of elitests people like you are. They are legally married regardless of how much you think you and your ilk own the word!


Posted by: wildfyre99 | July 6, 2010 12:49 PM | Report abuse

SubRosa2,

The "abomination" argument as a way to say that the Bible contradicts itself does not take into account the way in which rules and commandments should be understood in the Bible.

Rules against shellfish and many other things are prescriptive rules--they are not based on immutable, natural laws, as are the Ten Commandments, for instance.

Catholics no longer follow the prescriptive laws of the O.T., but they have many of their own prescriptions. So, eating meat on Good Friday is not a sin because eating meat is a sin, it is simply a violation of a prescription that the Church has made to make the point that sacrifice is a necessary habit for a Christian ("Whatever you bind on earth..." etc.).

As I noted above though, marriage is something based in nature--the physical complementarity between a man and a woman. That's not something anyone--Jew, Christian, Moslem, etc., can change.

Posted by: Bluefish2012 | July 6, 2010 1:04 PM | Report abuse

The whole gay marriage thing is so easy to solve. The Supreme Court should take the case and fix it in less than an hour.

Step 1: Accept the historical definition of the term, "marriage" as a religious union of a man and a woman.

Step 2: Define the term "civil union" to be a consensual and contractual relationship between two or more people for the purposes of mutual mental, emotional, and financial support, or child care, recognized by law.

Step 3: Declare the condition of marriage to be a matter of separation of church and state.

Step 4: Require the term "marriage" be replaced with the term "civil union" in all law references.

BINGO. The man & woman marriage issue is preserved, and all unions gain the full legal protections currently enjoyed by married couples.

And if that's not good enough, then it's proof that the GLBT coallition is not interested in equality.

Posted by: mhoust
-----------------------------------

So that makes the millions upon millions of couples who were "married" outside of a church what? Unionized??? How freaking ridiculous. Let religion keep "matrimony" to themselves but let everyone have "marriage."

By the way if you inact your 3rd clause then the 1st and 2nd are moot.

Posted by: wildfyre99 | July 6, 2010 1:05 PM | Report abuse

SubRosa2:

Shellfish? Never ate it.

Never touched a woman other than my wife or family member.

Never turned on a light on the Sabbath.

And so on.

I keep every single one of the commandments in the Bible to nth degree possible, God willing, every day of my life, thank you very much.

Posted by: Jerusalimight | July 6, 2010 1:05 PM | Report abuse

"While science is relatively new to studying homosexuality, studies tend to indicate that its biological."

We should be spending millions for medical research to find the "gay gene". That way, people can prove they are gay and gene therapy can be used to correct the condition.

Posted by: kitchendragon50 | July 6, 2010 1:11 PM | Report abuse

Jerusalimight continues to declare that marriage is by definition religious, apparently meaning exclusively so. That is simply not true. There is religious marriage and there is civil marriage. The legal debate is over civil marriage.

Religious freedom is one thing--it is explicitly protected by the First Amendment. But another part of the same amendment prohibits the establishment of religion. The government may not impose the tenets of one religion on the populace. Separately, in the 14th Amendment, citizens' right to equal protection of the laws is guaranteed. It does not carve out exceptions. If you refuse to acknowledge that marriage exists as a civil institution, separately from the religious institution, then there is no point in further discussion because you are not being honest.

Another theme that has been building in the comments is the usual resort to declaring homosexuality in general to be illegitimate. I have written extensively on such questions, but I am not going to return to square one every time a gay-related issue comes up, and accept the notion that I have to justify my existence. Gay people are here. We are not going away. Even most "ex-gay" ministers/therapists acknowledge that their clients' homosexual desires do not go away--they merely teach them to suppress those desires. That means they are not "ex-gay" at all. The science does not support the anti-gay position. Since some of you insist on continuing to repeat those falsehoods in addition to some of you being nasty about it, productive discussion with you becomes impossible. Taking a position that amounts to demanding that a portion of the population disappear is not engaging in a civil discussion. Boies and Olson have assembled a mountain of material showing that those perspectives are wrong. If someone wants to cite and refute arguments presented in Perry, fine; that requires more than the facile dismissals and recitations of dogma that some here are offering.

Posted by: 17thStRick | July 6, 2010 1:22 PM | Report abuse

We should be spending millions for medical research to find the "gay gene". That way, people can prove they are gay and gene therapy can be used to correct the condition.

Posted by: kitchendragon50
------------------------------

And what about people who do not wish to be "cured?" Are you that anxious to live in Nazi Germany?

Posted by: wildfyre99 | July 6, 2010 1:22 PM | Report abuse

I got a simple solution to this: If America wants to deny equal rights to her citizens based on the majority's will, then the only thing to do is relieve those citizens whose rights are denied of their civic obligations. Therefore, if you cannot be married legally in the USA because you are gay, then you should not have to pay taxes. This is only fair. I'm sure the majority would be delighted to bear any burden to keep their definition of marriage pure, and the gays can use the money they save from not being charged taxes to find another country who really believes in "equal protetion under the law".

Whaddya think?

Posted by: wiccan | July 6, 2010 1:26 PM | Report abuse

Jonathan, you might want to stay away from writing about complicated legal issues, or at least get a law professor to read your columns. Lots of factual errors in your article as well as a LOT of unsupported assumptions about the how Constitutional law would apply to different situations.

Posted by: GSS1 | July 6, 2010 1:37 PM | Report abuse

@17thStRick: You wrote "I too fear that pressing ahead with Perry is risky given a closely divided SCOTUS. But that horse has left the barn, as has the horse of a broader case as opposed to a narrower case."

Just because Boies and Olson are pressing a broader case, doesn't mean that Chief Judge Walker can't rule on narrower grounds. He could. One route is explained in this excellent issue brief by my colleague Rebecca Brown for the American Constitution Society: http://www.acslaw.org/node/16244

@EqualityFirst: While you are correct that the Georgia law upheld in Bowers v. Hardwick applied to oral and anal sex regardless of the sex/gender of the people involved, it is not correct to say that "The Justices upheld the Georgia law because it was not discriminatory," at least based on their written opinions. In fact, Justice Byron White's majority opinion only considered the constitutionality of Georgia's law *as it applied to same-sex conduct.* The majority of the Court wrote discrimination into the statute where there was none. Conversely, the majority in Lawrence v. Texas did not invalidate Texas's "homosexual conduct law" because it was discriminatory (although that was the rational of Justice Sandra Day O'Connor's opinion concurring in the judgment). Rather, Justice Kennedy's majority opinion specifically said that it was not going to focus on the narrower discrimination argument but instead on the broader question whether the state could regulate *any* (unrelated, consenting) adults' (private) sex lives in this fashion. So, perhaps you might go a little easier on the op ed author's grasp of the law.

David B. Cruz
Professor of Law
University of Southern California Gould School of Law

Posted by: DavidBCruz | July 6, 2010 1:41 PM | Report abuse

I find it highly amusing that the two warring camps here are so adamant about the use of labels. "My label is vastly superior to your label, you blithering idiotic moron." Civil-union, marriage, religious gift of God, OK, yeah, whatever...

If I were in that situation where the "marriage" label meant so much to me that I had to have one, I'd go to a state where I could get it. Then, if that label were not "recognized" by my state of residence, I'd simply take the legal means necessary to ensure that the letter of the law applies to me and my partner with as much force as possible. For example, I might find a company that extends medical insurance to my "domestic partner." I'd get a will or living trust or whatever instrument prevails in a court of law upon my death. And if the relationship died, then we'd take the same steps necessary for the division of property, depending on the state.

A rose, by any name, right? Quite frankly, get over the labels, people, and live your life the way you want. This country would be in far better shape if we weren't so label-challenged.

Posted by: tmkelley | July 6, 2010 1:44 PM | Report abuse

@Professor Cruz: I hadn't thought of the judge's option of ruling more narrowly. Well, it'll be interesting to see what he does. Thanks, BTW, for the good summary of Bowers and Lawrence.

@tmkelley: the argument is not merely about labels. Marriage is the legal term for a particular civil institution. Yes, that makes it a label, obviously, but a lot of legal rights and responsibilities (1138 at the federal level) go along with it that do not in the case of civil unions or domestic partnerships. So the particular legal terms matter to people's lives.

Posted by: 17thStRick | July 6, 2010 2:00 PM | Report abuse

17thStRick:

So if the LDS church defines marriage as something between one man and twenty-five women that is fine with you. Think what you want, buddy. I call it polygamy and it's wrong.

The voters would disagree with you. And they also disagree on homosexual unions.

Why is it so hard to understand that when there are two sides to a story the voters have to decide?

Posted by: Jerusalimight | July 6, 2010 2:27 PM | Report abuse

This frivolous argument will become meaningless soon so why bother. One of the conditions that is possible to detect before birth is the defect in human genes that causes homosexuality and other deviant, sexual abnormalities.

Before long, fetuses that have the devient genetic material will be aborted outright at the request of the parents. Since having a sexually disoriented child is every parents nightmare, it will not be long before homosexuals are virtually extinct. The homosexual problem will go away and Americans can move on to important matters again.

Posted by: battleground51 | July 6, 2010 2:35 PM | Report abuse

Olson and Boise have substituted their egos for the reality of the cause they are trying to win.

They will lose in the SCOTUS because:

a) Sexual orientation will not be found to qualify as a suspect class by the SCOTUS.

b) As sexual orientation is not a suspect class, the legal definition of marriage can not be subjected to strict scrutiny by the court.

c) The states maintain the right to define marriage as they wish within the rules of rational legal scrutiny.

d) Thus, a state definition of marriage, excluding same sex marriage, will not be be found to violate the equal protection clause of amendment 14.

Beyond that, SCOTUS precedent in Baker vs. Nelson has already declared that state laws banning same sex marriage do not violate the US constitution.

Boise and Olson will have had their shot at a place in the history books, but their egos have clouded the legal and political realities of SCOTUS and the constitution.

In the end, they will damage the cause they are purported to support.

Posted by: captn_ahab | July 6, 2010 2:45 PM | Report abuse

yeah battleground51.... more important things like making sure everyone is blond haired and blue eyed. Males will be breed to be 6' exactly and women 5'6" and the genes making people subject to obesity will be tweeked too. Uniformity and compliance will be encouraged. Disunity and rebellion will be punished...

Hail the master race... Hail the fuhrer...

Posted by: wildfyre99 | July 6, 2010 2:59 PM | Report abuse

Wow - this topic certainly gets everyone up in arms. Everyone needs to go to the county courthouse to get a marriage license which essentially registers the marriage as official once it is signed by the participants and someone who officiates the marriage. How about if this is called a civil union - both heterosexuals and homosexuals are equally able to get a civil union which provides equal protection under the law. A marriage can then be a religious ceremony which only confers the acceptance of the union by whatever belief system you choose. Religions don't have to accept civil unions but that would not affect the legality of such.

Posted by: cmhbph1 | July 6, 2010 3:00 PM | Report abuse

The U.S. Supreme Court should not touch this issue. All of our marriage laws (ages of consent, etc.) are decided by states, so why should this issue be any different?

Posted by: hokieguy | July 6, 2010 3:02 PM | Report abuse

For Jerusalimight:

Your adherence to the Torah is commendable, and you will no doubt be rewarded. But "Since the law has only a shadow of the good things to come and not the true form of these realities, it can never, by the same sacrifices that are continually offered year after year, make perfect those who approach. Otherwise, would they not have ceased being offered, since the worshipers, cleansed once for all, would no longer have any consciousness of sin?" (Hebrews 10: 1-5). Under the law, we are all condemned. It is only by grace that we are saved, and it is the grace that passes all understanding and all categories. You are in my prayers.

Posted by: SubRosa2 | July 6, 2010 3:09 PM | Report abuse

I say we go back to stoning adulterers and those who eat shellfish.

That should take care of all the America-hating Republicant Party of No incumbents.

And then the rest of America can live in the 21st Century, instead of the 8th.

Posted by: WillSeattle | July 6, 2010 3:25 PM | Report abuse

"The U.S. Supreme Court should not touch this issue. All of our marriage laws (ages of consent, etc.) are decided by states, so why should this issue be any different?"

Wrong! Ever heard of the Defense of Marriage Act or the federal tax code? The U.S. Congress has been actively involved in the institution of marriage, conferring legal/monetary benefits to married couples and limiting access to the institution and those benefits. More importantly, the Court has made it clear many times that states do not have unfettered power to define access to marriage and its benefits. See Turner v. Safley (1987) (striking MO prison regulation prohibiting prison inmates from marrying absent a compelling reason); Zablocki v. Redhail (1978) (striking WI law requiring people owing child support to obtain court permission to marry); (Loving v. Virginia (1967) (striking VA law prohibiting interracial marriages).

States have a lot of power, but all states are bound to adhere to the 14th amendment. If they step out of line, it's the Court's job to step in.

Posted by: dcresident11 | July 6, 2010 3:29 PM | Report abuse

SubRosa2:

Jewish philosophy teaches us that we have free choice. That means we can always sin.

You forgot, the tempter remembered. You were confused, the tempter understood. You slept, the tempter was awake. He's always working on every person.

We do have forgiveness. That is just to get us back to zero, where we start over again. But if 'perfection' means lack of temptation, then it does not belong in this world. In this world we have to make God holy by resisting temptation. If we were not tempted any more, then our good deeds would not meaningful.

That is why we have to keep our environment as clean of temptation as possible by limiting forbidden unions like the ones being discussed here. So we can do more good, and bring Godliness into this world of fakery.

Posted by: Jerusalimight | July 6, 2010 3:33 PM | Report abuse

@cmhbph1
"How about if this is called a civil union"

Because there are over 1100 federal laws defining and addressing the rights, privileges and responcibilities of "marriage."

And as I said before... how do we refer to the state or condition of those who have joined in "civil unions?" Unionized? How stupid do things have to get?

Why not let all humans own and use the term "marriage" and let the churches have their "holy matrimony?" "Marriage" should not, and does not today, require a religious component. And "holy matrimony" as "sanctified" by a church should confer both civil AND religious recognition of the union.

Whats wrong with that?

Posted by: wildfyre99 | July 6, 2010 3:43 PM | Report abuse

As otehrs have mentioned - "Marriage" should be the religious ceremony - which would allow those religions that are against same-sex unions to refuse performing such services. Even being a ordained Wiccan priestess, I say this.

HOWEVER, on the other hand, I think that "Civil union" should be exactly that - the CIVIL/LEGAL side of a union. Thus, equally available & binding for homo- or hetero-sexual couples.

Part of the problem, and if I understand correctly - the reason this is being loudly challenged by same-sex supporters - is that the US Govt does NOT recognize same-sex civil unions. THUS, same-sex couples do NOT have all of the same rights & privledges their hetero- peers have. No joint filing, no auto-beneficiary of estate, no auto- joint insurance at an employer (cuz you aren't legally married per Uncle Sam), adoption, etc.

Again, to sum it up: Take the word MARRIAGE out of the legal equation. We heteros have done such a bang-up job of protecting the "sanctity" of it. Let Marriage be the RELIGIOUS ceremony. Let *everyone* have to have a CIVIL UNION, which is legally binding at the state & federal level.

Then if you want to have a *religious* ceremony in a church that condemns & spits upon your love, that's your battle. That's truly a case of "you chose to go there". Much the way I won't go into a Church even to be part of my secular community - I find their teaching offensive, but they have THE RIGHT to preach their beliefs - inside their building. I likewise have THE RIGHT to believe as I shall, and practise it per the legally-binding-to-everyone laws (like no bonfires for Beltane for me - "no open fires" allowed in my county - religion doesn't enter into it). I want to have a drum circle, I better apply for the appropriate permits, same as the local Baptist Church wanting to have a tent revivial. *laws that apply to all*

Posted by: VAharleygirl | July 6, 2010 4:00 PM | Report abuse

fr Fergie303:

>...Giving gay couples their constitutional rights in civil unions identical to the rights given to a man and woman in a union labeled a "marriage," in my opinion, satisfies the constitution....<

Well, guess what? We are not talking about YOUR marriage. We are talking about mine, for example. My wife and I are one of the 18,000 same-sex couples that were able to marry in that too-short window in 2008, and we are VERY upset that the fundies lied, esp the james dobson cult and the mormon church, about what prop HATE would do.

Want to ride in the ambulance or make medical/final arrangements for your partner/spouse? Better be married. In 33 states, glbts can be evicted, denied credit, fired, expelled, denied property, JUST FOR BEING GLBT. Straights don't have to put up with that garbage.

Get a life, and deal with the FACT that prop HATE will be overturned, sooner or later. Marriage equality is all we want AND DESERVE. It ain't rocket science.

Posted by: Alex511 | July 6, 2010 4:21 PM | Report abuse

It is bizarre to me that many of those opposing same sex marriage endorse a civil partnership that would convey exactly the same rights and responsibilities as marriage. Presumably anyone familiar with Microsoft Word could write the new law by using the Search and Replace functions on a document that contained marriage laws, replacing "marriage" with "civil partnership." Then of course all we would have to do is build an entire new state bureaucracy to handle the administration of civil partnerships.

So they want to create a duplicate bureaucracy to preserve nothing more than an exclusive label for a partnership between a man and woman. An entire bureaucracy to support separate terminology for the same thing. That's just plain nuts.

Posted by: MaryC4 | July 6, 2010 4:33 PM | Report abuse

The Supreme Court can overturn the people's will - and has. Google Romer v. Evans - it's a case about fifteen years ago where a Colorado constitutional amendment forbidding legal protections for gays was struck down.

Now, having said that, I trust these nine with nothing right now. Honestly, I don't think they read the Constitution or precedent anymore.

Posted by: ravensfan20008 | July 6, 2010 4:53 PM | Report abuse

Jerusalimight wrote, "So if the LDS church defines marriage as something between one man and twenty-five women that is fine with you."

If you mean do they have a right to believe that in religious terms, I think people have a right to believe whatever they want. If you mean the civil law, no. I have never taken the position that anything goes. If homosexuality is truly the threat that the radical right portrays, then it ought to be suppressed. But that is a slander, buttressed by the most blatant of frauds. There are still people who cite the discredited Paul Cameron, for God's sake. Anyway, polygamy as it is practiced by the renegade Mormons (the LDS church ended it a century ago) causes harm. There have documentaries about this; look them up if you like. In any case, gay people aren't asking for the right to marry everybody, just the right to marry somebody. Telling us to marry someone of the opposite sex is not only dishonest (that's not who we're attracted to) but cruel (why would you wish a miserable marriage on the other person?). Polygamists are not barred from marrying somebody, they're just told they can only have one spouse at a time. Gay people are denied marriage altogether.

"Why is it so hard to understand that when there are two sides to a story the voters have to decide?"

In which case, we could dispense with courts altogether. Sorry, but Article 4, Section 4 of the U.S. Constitution guarantees a republican form of government. It says nothing about plebiscites. There is no inherent right of the general public to trump the legislature at will on any issue that comes up. OTOH, my right to equal protection of the law is explicitly stated in the 14th Amendment.

Posted by: 17thStRick | July 6, 2010 4:53 PM | Report abuse

Imagine this.

In maybe two or three more generations, religion will all but disappear.

Let's hope.

Posted by: veerle1 | July 6, 2010 7:01 PM | Report abuse

Then again, the Supreme Court could refuse to take the case and let the lower court ruling stand.

Posted by: cgindc | July 6, 2010 7:19 PM | Report abuse

It is hard to imagine that any court could side with the amateurish defense presented by the Prop 8 proponents.

Posted by: danolgb | July 6, 2010 7:34 PM | Report abuse

Look, Prop 8 is just another in a long string of unjust laws set up to validate a certain worldview. It allows some insecure people to get their regular fix of self-righteousness. The problem is that when you require the secular authorities to validate your religious beliefs, you've surrendered all the spiritual heavy lifting over to someone else.

Laws that rest upon a particular worldview tend to lack any rational basis. In order for a law to be just, it must be reasonable. We submit to speed limits because speeding is dangerous, not because some religious tome decries it. We limit the drinking age because we want to be certain that child development is not hindered and responsible decisions are made, not because of moral disapproval of the practice of drinking. We regulate marriages because it is in the best interests of the legal system and society at large to promote stability and security in the most important of human relationships. Not because some ancient scrolls said that city hall must do God's work.

Posted by: jdblue | July 6, 2010 7:46 PM | Report abuse

I think the proponents of gay marriage are failing to properly weigh how new the idea of gay marriage is. Fifty years ago, twenty-five years ago, ten years ago, it would have been an oxymoron as most people understood marriage to be between a bride and groom. Most people still hold that view. That is not anti-gay; it is simply pro-culture and pro-tradition.

And you are kidding yourselves if you think a federal court is going to declare a referendum result unconstitutional when the referendum leaves folks with civil unions, but retains the term "marriage" for brides and grooms.

I may be wrong. We will see.

P.S. spare me the cheap analogy to African-Americans who were prohibited from being brides and grooms in the South. That prohibition occurred nowhere else in the World or USA except in the South; and it reflected an ongoing culture to marginalize blacks. A gay is San Fran in 2010, with civil unions available to him, is a hell of a lot better off than blacks in Virginia in 1950.

Posted by: forrest3 | July 6, 2010 8:25 PM | Report abuse

jdblue wrote:

"We regulate marriages because it is in the best interests of the legal system and society at large to promote stability and security in the most important of human relationships. Not because some ancient scrolls said that city hall must do God's work."

Wrong with a capital W. We regulate marriages, because in most cases they produce babies. It is in the best interests of the state that the relationships producing those babies be as stable and secure as possible, and that by giving marriage a special status we encourage men and women to produce babies after they are married.

That is a rational basis for limiting marriage to a man and a woman, and it is according to that rational basis that the SCOTUS will allow the states to determine the current definition is in their best interests.

If you can convince your state legistlature that your definition of marriage is in its best interest, more power to you.

The traditional definition of marriage can not be found to violate anyone's rights under amendment 14, because sexual orientation is not a suspect class in the federal courts (not even in many state courts).

Posted by: captn_ahab | July 6, 2010 9:26 PM | Report abuse

jdblue wrote:

"We regulate marriages because it is in the best interests of the legal system and society at large to promote stability and security in the most important of human relationships. Not because some ancient scrolls said that city hall must do God's work."

Wrong with a capital W. We regulate marriages, because in most cases they produce babies. It is in the best interests of the state that the relationships producing those babies be as stable and secure as possible, and that by giving marriage a special status we encourage men and women to produce babies after they are married.

That is a rational basis for limiting marriage to a man and a woman, and it is according to that rational basis that the SCOTUS will allow the states to determine the current definition is in their best interests.

If you can convince your state legistlature that your definition of marriage is in its best interest, more power to you.

The traditional definition of marriage can not be found to violate anyone's rights under amendment 14, because sexual orientation is not a suspect class in the federal courts (not even in many state courts).

Posted by: captn_ahab | July 6, 2010 9:27 PM | Report abuse

jdblue wrote:

"We regulate marriages because it is in the best interests of the legal system and society at large to promote stability and security in the most important of human relationships. Not because some ancient scrolls said that city hall must do God's work."

Wrong with a capital W. We regulate marriages, because in most cases they produce babies. It is in the best interests of the state that the relationships producing those babies be as stable and secure as possible, and that by giving marriage a special status we encourage men and women to produce babies after they are married.

That is a rational basis for limiting marriage to a man and a woman, and it is according to that rational basis that the SCOTUS will allow the states to determine the current definition is in their best interests.

If you can convince your state legistlature that your definition of marriage is in its best interest, more power to you.

The traditional definition of marriage can not be found to violate anyone's rights under amendment 14, because sexual orientation is not a suspect class in the federal courts (not even in many state courts).

Posted by: captn_ahab | July 6, 2010 9:27 PM | Report abuse

Gays and lesbians already have the same rights of marriage as normal people. Any gay man can marry the woman of his choice and any lesbian can marry the man of her dreams. Their rights are exactly the same as everyone else's. We are about to put a lesbian on the Supreme Court for goodness sakes.

What the gays are looking for is special rights and the redefinition of marriage. Marriage is the union of a man and a woman. What's next a push to redefine green as blue? When people choose to be homosexual, they choose to be single.

Californa amended their Constitution to avoid redefinition of marriage. Once the Constitution was amended, that amendment was by definition constitutional.

Posted by: oldno7 | July 6, 2010 10:42 PM | Report abuse

Homophobia is intolerance which brings no benefit. Same-sex marriage is a right which must be recognized by the federal government. Ted Olsen and David Boies did great in the trial about proposition 8 and it looks like the federal Ninth court will agree that same-sex marriage is a right. The Supreme Court is too cowardice and intolerant to recognize to rule that same-sex marriage is a right. The path to that right by the judicial branch shouldn't be abandoned but the branch of government that changes faster than the judicial branch are the legislative and executive branches.

Posted by: LibertyForAll | July 6, 2010 11:25 PM | Report abuse

oldno7, The crux of your argument that you don;t want to change your personal beliefs that gays are "inferior" to striaght people and the belief of marriage as well.

Posted by: RyuKage99 | July 6, 2010 11:54 PM | Report abuse

Contrary to what many believe, the US Supreme does not engage in legislating from the court. If anything, it has shown surprising restraint overturning existing laws that are based on legal precedent. Nor does the court champion the cause of cultural or political crusades that far out paces the national consensus or sentiment. A good example of this is Lawrence vs Texas, in which the US Supreme court overturned Bowers vs Hardwick. At the time of Bowers, The court was reluctant to overturn existing anti-sodomy laws stating it could find no constitutionally guaranteed right protecting any intimate sexual relationship. While in principal, I disagree with this decision, at that time more that 35 states had anti-sodomy legislation on their books. Thus, the decision in Bowers was commensurate with the public sentiment of the time. By the time this decision was reversed in Lawrence, 17 years had gone by and the number of states that still had anti-sodomy legislation had been reduced by half. Again,the Courts decision was commensurate with public sentiment of the time.

It is true that in Loving, Justice Warren stated that, "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival, but it is clear that his understanding of marriage is coming from a heterosexual perspective. Additionally, at the time Loving was decided only 16 states prohibited interracial marriage which showed a definitive trend towards acceptance of interracial marriages nationwide. So, again, far from championing the cause of interracial marriage against a nation that was blindly pitted against it, the court in fact ruled in accordance with overwhelming public sentiment. Here is the case law if you want to verify what I am saying:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=388&invol=1

Currently, 5 states and the District of Columbia allow same sex marriage. Even the EU Court of Human Rights found that there is no European consensus insuring a right to same sex marriage.

While I believe that same sex marriage is inevitable, we are far from a national consensus and I believe that this fact will not be lost on the US Supreme Court.

Posted by: jalexrodr | July 7, 2010 2:46 AM | Report abuse

Americans should be free to marry who they want to marry in America...

To all you right-wing bigots out there: Mind your OWN business.

Posted by: dematheart | July 7, 2010 8:57 AM | Report abuse

The problem, herein, is the American Court system itself. Even though judges are appointed they remain, as any human being would, ideological. The result is no case law involving what's considered amoral behavior to some is ever really settled. The U.S. can send gadgets to look at rocks on Mars but can't seem to live with a mixed couple in a television commercial.

Posted by: wturecki | July 7, 2010 11:32 AM | Report abuse


Your right to swing your 'bible' or 'quran' or any other work of wild fiction that forms the basis of your 'religion' stops at my nose. News flash: your 'gods' don't exist. They're figments of your imagination and of those huckster authors of the past that brainwashed your weak minds into believing what they told you rather than believing what you could figure out for yourself based reason and evidence. Your faiths are bogus. They form zero basis for the law of a country with separation of 'church' and state. Get ready for gay marriage when all the old stupid bigots die off.

Posted by: rtaylor3 | July 7, 2010 4:31 PM | Report abuse

The Bible is Gods eternal law for which the basis of all man made laws must devide from if such laws are considered just. Homosexuality is an intrinic disorder and in no way can such calls for tolerance change the fact that God considers this a most serous offense, and any society that excepts such perversion is doomed to Gods rath.

Posted by: SavedGirl | July 10, 2010 12:13 AM | Report abuse

Saved, I'm sorry to burst your delusional rantings, but our laws are *secular*! Neither the Constitution nor the Declaration promotes nor endorses Christianity whatsoever!

Furthermore, the Treaty of Tripoli *openly* states the US is not... repeat *NOT* a Christian nation!

Posted by: marlenebomer | July 11, 2010 7:53 AM | Report abuse

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