interesting new angle on the gay marriage debate

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MrsSpringsteen said:
Does anyone have any comment on the Provincetown situation?



i suppose i'm not surprised at the hostility towards Jamaicans -- Jamaica is widely known as being one of the most overtly homophobic societies on earth, and there has been some well-publicized controversy over certain reggae lyrics that talk about burning a gay man alive or shooting lesbians.

it's of course wrong to assume that all (or even some) Jamaicans think it's a great idea to burn a gay man to death, but i also think we shouldn't think that gay people are somehow exempt from the very human tendency to stereotype and think as groups. it would be nice to think that through a history of profound discrimination a gay person would never turn around and do the same thing to another person, but gay people are people and people are stupid. i would imagine that, on the whole, Provincetown is one of the most liberal, tolerant places in the entire US, if not the world, which is why something like this makes news, and the fact that it is actually being addressed by town leaders speaks to the high level of concern about bigotry held by most Provincetown residents.

i also have to wonder what that woman was thinking signing an anti-gay marriage petition in Provincetown. did she think that people would just smile and say, "well, you have the right to your opinion!" especially when there have been thousands upon thousands of same-sex marriages in MA since 2004 and many of them probably spend some of the summer in Provincetown?

it seems like someone moving to Queens and then complaining about all the noise from the airplanes flying into La Guardia.
 
But that woman was shopping and was called a bigot, and people are spreading manure on lawns etc. As I hope you know by now, I would never defend bigotry of any kind against homosexuals- but is what they are doing to those people productive in any way? Is it "intolerance"? I defend their right to be angry and hurt as well, and human beings naturally react in many ways when they feel angry, hurt, discriminated against, etc. Are they reacting to intolerance with intolerance of their own? Of course I'm not comparing what gay people are sublected to to what these people are being subjected to, that would be ridiculous. Apples and oranges and all that.

Is that knowthyneighbor site a good idea?

I'm not defending anyone signing that petition in PTown or elsewhere because just for me personally, I would never do such a thing. I just think the whole situation raises some interesting questions.
 
MrsSpringsteen said:
But that woman was shopping and was called a bigot, and people are spreading manure on lawns etc. As I hope you know by now, I would never defend bigotry of any kind against homosexuals- but is what they are doing to those people productive in any way? Is it "intolerance"? I defend their right to be angry and hurt as well, and human beings naturally react in many ways when they feel angry, hurt, discriminated against, etc. Are they reacting to intolerance with intolerance of their own? Of course I'm not comparing what gay people are sublected to to what these people are being subjected to, that would be ridiculous. Apples and oranges and all that.

Is that knowthyneighbor site a good idea?

I'm not defending anyone signing that petition in PTown or elsewhere because just for me personally, I would never do such a thing. I just think the whole situation raises some interesting questions.



gay people can be idiots -- by saying i'm not surprised doesn't mean that i condone such behavior.
 
hmm, interesting

http://www.slate.com/id/2145620/

"But what if these gay-marriage bans were not animated by anti-gay bigotry? What if they represent a deeper-seated anxiety about gender and gender roles? What if popular aversion to gay marriage has less to do with hating same-sex couples than with a deep psychological attachment to a powerful symbol of sex difference: the tulle-covered bride and the top-hat-and-tails groom."

...."If I'm right, there are two reasons someone might oppose same sex-marriage: anti-gay animus or a desire to protect traditional sex roles. It's no secret that traditional sex roles are in crisis. They've been battered by feminism's attacks on male privilege and feminine mystique. Macho women have mocked female virtues (consider the gun-toting Thelma and Louise, the oversexed Samantha Jones of Sex and the City, or the wooden-stake- and holy-water-wielding Buffy). And house husbands, Mr. Moms, and "metrosexuals" have similary rejected or lampooned traditional masculinity. Today both men and women reject the constricting and unequal sex roles of past generations, but most still desperately want meaningful sex identities. So they cast about, all too often buying into crude stereotypes, such as those offered in books such as The Rules, which counsels the single girl to deploy the catty feminine wiles and emotional manipulation learned in junior high school; or The Game, which counsels the single boy to use psychological manipulation and deception to wrangle sexual favors from reluctant women. Marriage fills that gender gap: It is one of the few social institutions left that rigorously and unapologetically divides the sexes into distinctive, almost ancient, gender roles."
 
AEON said:


Which ones? The thread moved pretty fast.


Do you know what else the Bible says about Marriage? Paul says it is good not to marry, BUT if you must do so...

That puts an interesting spin on your procreation reasoning doesn't it? If all took Paul's advice we wouldn't be here.

It also says that only a man can divorce his wife, his wife cannot divorce him.


But let me ask you this AEON, is it at all possible that the reason it says man and women is that in this day and age there were no open homosexual relationships? Is it at all possible that Jesus spoke to people in their terms, what they could understand. Such as when Jesus refered to Noah he told them it wasn't really the whole Earth, it was just a small part and it really wasn't EVERY animal just a few... They would have stoned him, they wouldn't have been able to wrap their minds around it.

There were a lot of things going on during the times of Jesus that he didn't talk about but we can all assume he didn't like, but he never specifically talked about. Yet he used parables like 'judge not lest ye be judged' and others to take care of these concerns. There was slavery, oppressed women, racism, all kinds of things. But he never addressed these things specifically because there were things 'because of tradition' that people wouldn't be able to wrap their minds around, so he gave them his teachings hoping they will someday come around.
 
MrsSpringsteen said:
hmm, interesting

http://www.slate.com/id/2145620/

"But what if these gay-marriage bans were not animated by anti-gay bigotry? What if they represent a deeper-seated anxiety about gender and gender roles? What if popular aversion to gay marriage has less to do with hating same-sex couples than with a deep psychological attachment to a powerful symbol of sex difference: the tulle-covered bride and the top-hat-and-tails groom."

...."If I'm right, there are two reasons someone might oppose same sex-marriage: anti-gay animus or a desire to protect traditional sex roles. It's no secret that traditional sex roles are in crisis. They've been battered by feminism's attacks on male privilege and feminine mystique. Macho women have mocked female virtues (consider the gun-toting Thelma and Louise, the oversexed Samantha Jones of Sex and the City, or the wooden-stake- and holy-water-wielding Buffy). And house husbands, Mr. Moms, and "metrosexuals" have similary rejected or lampooned traditional masculinity. Today both men and women reject the constricting and unequal sex roles of past generations, but most still desperately want meaningful sex identities. So they cast about, all too often buying into crude stereotypes, such as those offered in books such as The Rules, which counsels the single girl to deploy the catty feminine wiles and emotional manipulation learned in junior high school; or The Game, which counsels the single boy to use psychological manipulation and deception to wrangle sexual favors from reluctant women. Marriage fills that gender gap: It is one of the few social institutions left that rigorously and unapologetically divides the sexes into distinctive, almost ancient, gender roles."

This is a pretty interesting take on the subject. i have to think about this one, let is sink in.

Nice find MrsS :)
 
MrsSpringsteen said:
hmm, interesting

http://www.slate.com/id/2145620/

"But what if these gay-marriage bans were not animated by anti-gay bigotry? What if they represent a deeper-seated anxiety about gender and gender roles? What if popular aversion to gay marriage has less to do with hating same-sex couples than with a deep psychological attachment to a powerful symbol of sex difference: the tulle-covered bride and the top-hat-and-tails groom."



well, if we are to buy into the idea that gay men are just men who think they are women, which i'm sure many people do, then that starts to make sense.

at it's core, homophobia is really misogyny in disguise.
 
Irvine511 said:

at it's core, homophobia is really misogyny in disguise.

Can you explain more why you feel that way? I am so interested in that :)

I didn't post that article to "refute" anything about homophobia or anti-gay marriage feelings-just to make that clear. It was just a concept I had never heard before or thought about.
 
MrsSpringsteen said:


Can you explain more why you feel that way? I am so interested in that :)



it's about a fear of feminized men, about a fear of men performing a gender or sex role (or sexual role) that cannot be understood as masculine. in many cultures, as has been discussed on this board, men are not considered gay unless they are the receptive partners in sex. that is, a man can retain his masculinity even if he has sex with men so long as he is the active partner, because being a receptive partner is viewed as being the same thing as being the woman in the relationship. i think it's a combination at percevied disgust about a man abdicating his "natural" role as the dominant penetrator and adopting the passive role as, bluntly, a seminial receptical, a woman. this is based upon common assumptions about the superiority of the masculine role and the inferiority of the passive, feminine role in heterosexual sex. misogynist men need their women to be submissive so they can reaffirm their traditional masculinity and manhood because it is so delicate that it can only be asserted through the denigration of the opposite gender.

also, and i know Dan Savage has said this, but for all the women out there -- if your boyfriend or husband is a homophobe (not just opposed to gay marriage, but a genuine, red-blooded homophobe, uses the word "faggots" or whatever) then he probably not only hates gay people, but he hates women as well.
 
to go back to the original intent of this thread, here's an interesting op-ed in the NYT. an excerpt:

[q]The more traditional argument stated that the Legislature could reasonably suppose that children would fare better under the care of a mother and father. Like most arguments against gay marriage, this “role model” argument assumes straight couples are better guides to life than gay couples.

And like other blatantly anti-gay arguments, it falls apart under examination. In a decision last month in a case concerning gay foster parents, the Arkansas Supreme Court found no evidence that children raised by gay couples were disadvantaged compared with children raised by straight couples.

But the New York court also put forth another argument, sometimes called the “reckless procreation” rationale. “Heterosexual intercourse,” the plurality opinion stated, “has a natural tendency to lead to the birth of children; homosexual intercourse does not.” Gays become parents, the opinion said, in a variety of ways, including adoption and artificial insemination, “but they do not become parents as a result of accident or impulse.”

Consequently, “the Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples.”

To shore up those rickety heterosexual arrangements, “the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.” Lest we miss the inversion of stereotypes about gay relationships here, the opinion lamented that straight relationships are “all too often casual or temporary.”

When an Indiana court introduced this seemingly heterophobic logic last year in upholding a state ban on same-sex marriage, I thought it was a cockeyed aberration. But after both New York City and New York State presented similar logic in oral arguments, and the court followed suit, I began to understand the argument’s appeal: it sounds nicer to gays.

It also sounds more desperate. New York’s ban on same-sex marriage is based on provisions enacted in 1909. It is preposterous to suggest the Legislature promulgated and retained the law because it believed gays to be better parents. Moreover, as New York’s chief judge, Judith Kaye, pointed out in her dissent, even if marriage were a response to the dangers of “reckless procreation,” excluding gay couples from marriage in no way advances the goal of responsible heterosexual child-rearing. “There are enough marriage licenses to go around for everyone,” Judge Kaye noted.

This is not the first time courts have restricted rights with a flourish of fond regards. In 1873, the United States Supreme Court upheld an Illinois statute prohibiting women from practicing law. Concurring in that judgment, Justice Joseph Bradley observed that the “natural and proper timidity and delicacy” of women better suited them to “the noble and benign offices of wife and mother.”

Hostile rulings delivered in friendly tones can take longer to overturn, as evidenced by the century that passed before members of the Supreme Court reversed their thinking about women and, in a 1973 opinion in a sex discrimination case, recognized that confining women in the name of cherishing them put them “not on a pedestal, but in a cage.”

We should not need a century to unmask the “reckless procreation” argument as a new guise for an old prejudice. The “reckless procreation” argument sounds nicer — and may even be nicer — than the plainly derogatory “role model” argument. But equality would be nicer still.

http://www.nytimes.com/2006/07/14/opinion/14yoshino.html?ex=1153022400&en=0dc1e3a6f36a3abd&ei=5087

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BonoVoxSupastar said:



Do you know what else the Bible says about Marriage? Paul says it is good not to marry, BUT if you must do so...


The word that most Bibles translates as “marriage” is really synonymous with “sexual intercourse” – a meaning it carries in other places in the New Testament.

Conservative scholarship believes the passage is teaching this:
”In the face of all this sexual immorality, remember that each of you should be having a sexually intimate relationship within marriage.

“Each man having his own wife” means, “Each man having this special sexual relationship only with his wife.”
 
AEON said:


The word that most Bibles translates as “marriage” is really synonymous with “sexual intercourse” – a meaning it carries in other places in the New Testament.

So marriage is just about sex.:|


AEON said:

Conservative scholarship believes the passage is teaching this:
”In the face of all this sexual immorality, remember that each of you should be having a sexually intimate relationship within marriage.

“Each man having his own wife” means, “Each man having this special sexual relationship only with his wife.”

This makes about zero sense. How does, "It's not good to marry" translate to "have sex within marriage"?

Little bit of a stretch.
 
Dreadsox said:
There are plenty of things once considered sinful from scripture that are no longer considered sinful.

I think this is true in application, but not true in Scriptural interpretation. We often see a divide between Old Testament and New Testament as one “replacing” the other. I think the reality is that God has always offered salvation by grace through faith. In the alternative, when people asked for something more specific than faith, we received the Law. We can work our way to heaven by perfectly keeping the Law. This, of course, will never happen as we all fall short.

Thus, the sin described in the Law is still sin. Obedience to the Law is not required for salvation if we have accepted God’s gift of grace (today, it is through the Son; for Abraham, it was directly through the Father). Romans 6 tells us that even though the Law is not required for salvation, it is still there to show how we should live.

As for the original subject of the thread, the NY case Hernandez v. Robles, I don’t know if anyone has read the actual opinion. Perhaps the furor of same-sex marriage supporters should be directed at plaintiff’s counsel. First, the real fallout from the case is the court’s declaration that laws governing same-sex marriage need only pass the rational basis test, not a higher scrutiny test. In most Constitutional arguments, determination of the balancing test is more determinative of outcome that the case facts. By allowing the court to set the balancing test at rational basis, it will be more difficult to win future cases. Second, the rational basis argument of promoting permanent relationships where children are potentially unplanned was previously used in Indiana. If this analysis does break down so easily, plaintiff’s counsel should have been able to expose those flaws in this matter.

The court does mention other arguments for applying the rational basis test exist, but did not elaborate on the substance of those arguments. Perhaps the NYT editorial is correct, the court used this argument because it “sounds nicer to gays.”

BVS – 1 Corinthians 7 makes perfect sense in the context of this discussion. “Now for the matters you wrote about: It is good for a man not to marry (or ‘It is good for a man not to have sexual relations with a woman.’) But since there is so much immorality, each man should have his own wife, and each woman her own husband.” 1 Corinthians 7:1-2. In this chapter, Paul is telling people not to get married if their primary calling is to the Lord. But if the desire for sexual relations is too great, then a person should get married. (verses 8 & 9) Reading through the passages would help understanding on this point.
 
BonoVoxSupastar said:


This makes about zero sense. How does, "It's not good to marry" translate to "have sex within marriage"?


Funny, all this talk about cutting and pasting scripture, but it seems that everyone does it.

In 1 Timothy 4, Paul says: "The Spirit makes it clear that as time goes on, some are going to give up on the faith and chase after demonic illusions put forth by professional liars. These liars have lied so well and for so long that they've lost their capacity for truth. They will tell you not to get married. They'll tell you not to eat this or that food—perfectly good food God created to be eaten heartily and with thanksgiving by believers who know better! Everything God created is good, and to be received with thanks. Nothing is to be sneered at and thrown out. God's Word and our prayers make every item in creation holy."

So I think you would be hard pressed to say that Paul was negative towards marriage.

The Message translates 1 Corinthians 7 this way: "First, Is it a good thing to have sexual relations? Certainly—but only within a certain context. It's good for a man to have a wife, and for a woman to have a husband. Sexual drives are strong, but marriage is strong enough to contain them and provide for a balanced and fulfilling sexual life in a world of sexual disorder."

In 1 Corinthians 6 Paul addresses the issue of sexual immorality as it related to the city of Corinth, which had an array of sexual temple practices. In a culture as highly sexually charged as Corinth was, people in the church were trying to figure out how to deal with it. Some people seemed to want to choose a life of celibacy, like Paul, and needed to be encouraged. Others seemed to fear getting married -- Paul was encouraging them as well.
 
nbcrusader said:



BVS – 1 Corinthians 7 makes perfect sense in the context of this discussion. “Now for the matters you wrote about: It is good for a man not to marry (or ‘It is good for a man not to have sexual relations with a woman.’) But since there is so much immorality, each man should have his own wife, and each woman her own husband.” 1 Corinthians 7:1-2. In this chapter, Paul is telling people not to get married if their primary calling is to the Lord. But if the desire for sexual relations is too great, then a person should get married. (verses 8 & 9) Reading through the passages would help understanding on this point.

Right I understand this, this is how I've always understood this passage. But he does put celibacy first, above marriage. Which I was trying to get AEON to put this in context with his "downfall of society" theory. Which is if homosexuals got married somehow reproduction would slow to a hault.:huh:

Interesting sidenote; that verse 25 makes it clear that this is Paul's opinion and not God's word. And here I thought there was no opinion in the Bible.
 
NBC...Thank you for the response:up:

[Q]I think this is true in application[/Q]

And maybe that is where I think Gay marriage should fall. The application of biblical meaning towards marriage has not remained stagnant in the old or new testaments. It has changed and evolved over time.

Application is everything and I think that is one of the biggest issues...we have picked and choosed how we apply it, and not just on this issue. So why have we allowed the applications of things to evolve and change. Divorce is the main thing I am thinking of in this instance. The biblical application of this concept has evolved and changed. Has it changed because of society? Is it because as a society we changed? Has it changed because it impacted the MAJORITY of people, rather than 10% of the world wide population?
 
BonoVoxSupastar said:


You too missed my point.

I feared my comment would rankle. Sorry -- it wasn't targeted at any one person, including you. Still, the point stands -- saying that Paul's only perspective on marriage was that it was good not to marry, is misleading and based in looking at one verse, instead of the bigger picture.
 
nathan1977 said:


Still, the point stands -- saying that Paul's only perspective on marriage was that it was good not to marry, is misleading

I realize that, and that wasn't my understanding of it, or my point.

But thanks for the clarification of the above comment.
 
nbcrusader said:


As for the original subject of the thread, the NY case Hernandez v. Robles, I don’t know if anyone has read the actual opinion.



i have read the actual opinion.

but, thanks for addressing what was supposed to be the point of the thread.

i think the case presents a great argument for working through the legislature rather than the courts.

also, i wonder if there could be a "rational basis" to outlaw interracial marriage. or interfaith marriage.
 
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The court in Hernandez pointed out that there was no rational basis for a ban on interracial marriage.

A ban on interfaith marriage may have more of a chance, given the courts reasonings.
 
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Dreadsox said:
Application is everything and I think that is one of the biggest issues...we have picked and choosed how we apply it, and not just on this issue. So why have we allowed the applications of things to evolve and change. Divorce is the main thing I am thinking of in this instance. The biblical application of this concept has evolved and changed. Has it changed because of society? Is it because as a society we changed? Has it changed because it impacted the MAJORITY of people, rather than 10% of the world wide population?

If the application of Scripture with respect to divorce has changed, has it changed for the better? (And I realize the sensitive nature of this topic, having very close friends and a mentor with divorce in their backgrounds).

Even Jesus acknowledged our stubbornness on this subject. Historically, we've tried different methods to fool ourselves to get around divorce (like annulment - pretend it never happened). Today, we've really stopped trying, with divorces that are mere filings. I don't think we've changed as people or society.

I have Matthew 19:6 engraved inside my wedding ring as a reminder for me.
 
[Q]If the application of Scripture with respect to divorce has changed, has it changed for the better? (And I realize the sensitive nature of this topic, having very close friends and a mentor with divorce in their backgrounds).[/Q]

My point is not to debate divorce...

However...

If it has applied to divorce.....Why not Gay marriage?
 
Letter to the Boston Globe by Rabbi Kushner. I love "complain to the manufacturer"

"Should an amendment banning gay marriage ever reach the ballot, I hope all fair-minded people will vote decisively against it. I would hope that even people who are opposed to homosexual behavior on moral or religious grounds will be able to coexist with people who differ from them, as people morally opposed to drinking have learned to tolerate the legal sale of alcohol and people disgusted by rap music manage to keep their distance from it without depriving others of the right to listen.

To me (and I have no personal stake in the question), the case is clear:

1) In every generation, a certain percentage of people will find themselves sexually attracted to others of the same gender. If you don't approve of this, complain to the Manufacturer.

2) These people will form erotic attachments whether we like it or not.

3) It is in society's interest that those relationships be legally formalized, even as it is in society's interest that straight men and women get married rather than flit from relationship to relationship.

Rabbi HAROLD KUSHNER, Natick
The writer is the author of ``When Bad Things Happen to Good People."
 
MrsSpringsteen said:
"Should an amendment banning gay marriage ever reach the ballot, I hope all fair-minded people will vote decisively against it. I would hope that even people who are opposed to homosexual behavior on moral or religious grounds will be able to coexist with people who differ from them, as people morally opposed to drinking have learned to tolerate the legal sale of alcohol and people disgusted by rap music manage to keep their distance from it without depriving others of the right to listen.

:up:
 
MrsSpringsteen said:
Should an amendment banning gay marriage ever reach the ballot, I hope all fair-minded people will vote decisively against it. I would hope that even people who are opposed to homosexual behavior on moral or religious grounds will be able to coexist with people who differ from them, as people morally opposed to drinking have learned to tolerate the legal sale of alcohol and people disgusted by rap music manage to keep their distance from it without depriving others of the right to listen.

Right on!
 
Dreadsox said:
[Q]If the application of Scripture with respect to divorce has changed, has it changed for the better? (And I realize the sensitive nature of this topic, having very close friends and a mentor with divorce in their backgrounds).[/Q]

My point is not to debate divorce...

However...

If it has applied to divorce.....Why not Gay marriage?

In that case, I think we would be arriving at the same practical personal application on the issue of homosexuality, even though we may differ on the authority of Scripture on the specific subject.
 
now that the Washington State Supreme Court has ruled in much the same way as the NY State Supreme Court, that there's a "rational basis" to keep the ban on same-sex marriage due to the great peril to children posed by unregulated heterosexuality, this article feels wonderfully relevant and hits the nail on the head:

[q] ... Until you hit upon the solution: Shift the blame. Make the legislature the bad guys. Find a way to frame the ban on gay marriage that makes it impossible to strike down. Rule that unless the ban is utterly insane, it's constitutional. Suggest that as long as the legislature passed it, it must be rational. Use the word "deferential" six times.

The key to appearing reasonable will be to vilify the dissenters. You'll want to use your majority opinion to emphasize that judges who vote their "personal views" are behaving like "legislators." Quote liberal lion Supreme Court Justice John Paul Stevens for that proposition. Then condemn—without quite using the words "judicial activist"—the dissenters for having been "uncharacteristically … led to depart significantly from the court's limited role when deciding constitutional challenges."

Be sure to tell your "readers unfamiliar with appellate court review" that your state's decision to ban gay marriage is solely the fault of the legislature. Because you yourself, of course, still love everyone.

Easy? Not really. Because even if you find that there is no "fundamental right" for gays to marry; even if you find that they are not a protected class deserving of special constitutional scrutiny; even if you find that the ban did not violate the state "privileges and immunities" clause, all that constitutional high-stepping still leaves you where the Massachusetts Supreme Judicial Court was only starting its own constitutional analysis—when it faced the same basic question about same-sex marriage in 2003: You still need to do the hard work of analyzing whether there is any rational reason for banning gay marriage.

That is, after all, why you became a judge. You are there to sort out whether the state's articulated goals fit the law they've enacted. You'll need to be wily: You can start by insisting that any law is "rational" so long as it contains some nouns and verbs. You can quote the U.S. Supreme Court for the proposition that: "In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous."

Still, much depends on how you frame that same rationality question. You can borrow from the Massachusetts court, which asked whether "government action that bars same-sex couples from civil marriage constitutes a legitimate exercise of the state's authority to regulate conduct." Or, you can turn it upside down like the New York State Court of Appeals and ask "whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples."

But the core question for judges—judges, not legislators—is still whether there is a rational reason for this ban. That's not a matter of personal morality, or religious preference, or taste. It's a factual legal inquiry, albeit broad-based.

The Massachusetts legislature offered three reasons for banning gay marriage: 1) "providing a favorable setting for procreation"; 2) "ensuring the optimal setting for child rearing"; and 3) "preserving scarce state and financial resources." The New York legislature offered substantially similar state objectives: 1) whether, for "the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships" by providing an "inducement" for those heterosexual parents to marry; and 2) whether "it is better, other things being equal, for children to grow up with both a mother and a father."

Both courts thus asked about the same question: Did the ban on gay marriage rationally achieve the legislatures' stated goals of promoting procreation and optimal families?

The Massachusetts court found they were not. First it held that procreation is not the sole purpose of marriage ("people who cannot stir from their deathbed may marry"). Then it found that a state interest in "optimal child rearing" arrangements cannot rationally be met if the children of gay parents are precluded from the protection of marriage laws.

New York's highest court went the other way. The majority of the judges felt that a legislature could reasonably find that "unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes, and thus that promoting stability in opposite-sex relationships will help children more." They also found that "a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like."

As the Washington State Supreme Court proved today, it almost doesn't matter, in the end. Because once you concede that only patently moronic bans may be struck down, you'll arrive at the same result.

To do this, the majority first points out that the "court may assume the existence of any conceivable state of facts that could provide a rational basis for the classification"; that "empirical evidence" is not necessary; and that a statute can be rational even if it is over- or underinclusive, and even when it creates some "inequity."

Read: Only if the ban was enacted by insane people can it fail constitutional review.

The Washington court goes on to find that state legislators may reasonably seek to use marriage as a carrot for randy heterosexual couples who—for complex biological reasons—get knocked up inadvertently: "The legislature could have found that encouraging marriage for opposite-sex couples who may have relationships that result in children is preferable to having children raised by unmarried parents." This logic holds even though gay couples have children, and heterosexual couples are childless, because "uch over-or under-inclusiveness does not defeat finding a rational basis" for the law.

Next, the Washington majority finds that the stated interest in rearing children in a home headed by "opposite-sex parents" is legitimate. Why? Marriage must be limited to straight couples because "children tend to thrive in families consisting of a father, mother, and their biological children." Children also "tend to thrive" in Cleveland. Oh wait, that one is irrelevant.

The court refuses to take seriously its obligation to engage in rational review by repeating, as if sinking deeper and deeper into a state of yogic meditation, that, "at the risk of sounding monotonous, we repeat that the rational basis standard is extremely deferential."

Even the most deferential review should grapple with whether banning gay marriage really encourages straight marriage; whether there is something about marriage that magically lures heterosexual parents into its grasp—something that would evaporate if it were also extended to gay parents. Even deferential review that was also deaf, dumb, and blind would do more than just assert that gay marriage is illegal because kids "thrive" in straight homes. That claim is not just slightly over- or underinclusive, as the majority would have it. It's nonresponsive. Or, as the dissenters put it, better than I have: "denying same-sex couples the right to marry has no prospect of furthering any of those interests."


http://www.slate.com/id/2146580/

[/q]
 
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