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May 03, 2005

states' rights and gay marriage

Don Herzog: May 3, 2005

Poor Scott McClellan.  The White House press secretary has the thankless task of articulating and defending President Bush's position on gay marriage.  The problem is that the President's position is incoherent, so once in a while reporters get to make McClellan squirm.  Since I think much of the public debate is incoherent, too, it's worth sorting out what's going on.

Let's distinguish three objections to gay marriage:

  1. Family law belongs to state governments.  But it's outrageous for state courts to rule that gay marriage is constitutionally required.  That decision belongs to the people or legislatures of each state.
  2. "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."  That's Art. 4, sec. 1 of the Constitution.  If one state marries gays, it looks like other states would have to recognize those marriages.
  3. Same-sex marriage is wrong, period.  Marriage must be between one man and one woman.

The president has taken all three positions.  But they don't cohere.  And I'm tired of patrons of 3 cloaking themselves in the procedural and federalist dignity of 1 and 2.  I want those patrons out of the political closet.

1 generates attacks on "judicial activism."  It's all about "who decides?" and not, "what's the right view?"  Many defenders of 1 say, and I assume they actually believe, that they have nothing against gay marriage.  They just think the decision belongs to a more democratic branch or to the people themselves.  If Massachusetts voters want gay marriage, they can adopt it, or instruct their representatives to adopt it.  No skin off the backs of residents of South Dakota, who remain free to shape their own family law.  But that doesn't mean a court in Massachusetts should be able to change the law.

2 triggers concerns about whether states not adopting same-sex marriage could hold the line once their gay and lesbian citizens crossed state lines, married, and returned.  The caselaw on "full faith and credit" has long recognized a public policy exception, especially when it comes to family law.  Here's an illuminating pair of cases on whether North Carolina was obliged to recognize a Nevada divorce.  The first one says it was.  But the second one permits Carolina courts to hold that Nevada was mistaken in thinking that the parties were properly domiciled in Nevada.  You might think it weird to let a Carolina court second-guess Nevada's own judgments about who holds residence there.  It is weird, it did mean that Carolina's bigamy conviction was upheld, and it does remind us that full faith and credit has bent or broken to accommodate different state laws.  (Fans of legal hijinks will savor this case, too.)

In March, a Connecticut court refused to annul the same-sex civil union of a Connecticut couple who'd gained that status in Massachusetts.  (See Lane v. Albanese, 2005 Conn. Super. LEXIS 759.)  One reason the court gave was that Connecticut's public policy refused to recognize such arrangements.  If the law couldn't grant civil unions, then as far as Connecticut was concerned there was nothing to annul.  More generally, even absent the Defense of Marriage Act, states would be able to argue that they're not constitutionally obliged to recognize other states' gay marriage.  But then some worry that those same dreaded activist judges would reject the public policy exception and insist on full faith and credit.  So, they say, we need a constitutional amendment.

But the constitutional amendment means that 3 wins, period.  It would prevent state legislatures or citizens considering referenda from adopting gay marriage.  It would prevent federalist variation and impose a national consensus.  3 is then the enemy of 1.  If you say you support 1, but you allow your worries about 2 to drive you to 3, you're readily embarrassed, because you just came out swinging against 1 after all.

Now let's watch McClellan squirm.  From 11/29/04:

Q:  The United States Supreme Court declined to take the appeal from the Supreme Judicial Court of Massachusetts ruling that allowed for same-sex couples to get married in Massachusetts.  What's the President's reaction to that?

MR. McCLELLAN:  Well, I think that the President continues to emphasize the importance of moving forward on a constitutional amendment that would allow the people's voice to be heard and not allow this issue to be decided by activist judges or local officials who seek to redefine what is a sacred institution.  The American people strongly support protecting the sanctity of marriage.  I think you can look to the recent elections in 11 states to see the kind of broad support there is for protecting the sacred institution.

And the President remains firmly committed to moving forward on a constitutional amendment that would allow the voice of the people to be heard and involve states in this process.  And that's different from allowing the activist judges to redefine this without the people's voice being heard.

Q:  But the activist the judges of the United States Supreme Court, the Justices just said this is something for the states, that we aren't going to get involved in this.  And 11 states are doing it.  Why does the President want

MR. McCLELLAN: Well, I think I don't think that they were looking at it from the federal law perspective, but looking at it from the state law perspective of the Massachusetts court.  So we need to separate those out.  You do have the Defense of Marriage Act in place, which the President strongly supported.  There is some question of whether or not that will be upheld over time.  And the President believes that this is an enduring institution in our society.  That's why he has fought to move forward on a constitutional process that would allow the states and the people in those states to be involved in this decision.

Q:  But I'm just wondering why the President thinks that federal judges are going to overturn, or "federalize" the Massachusetts decision to allow same-sex couples to get married.  One of the arguments the President made was that a federal court might get involved.  Isn't this a strong signal from the highest federal court that this is a matter reserved to states?

MR. McCLELLAN:  I don't think I would necessarily look at it that way.  Again, I think they were looking at it from the state law perspective, not the federal law perspective.  It was not something brought under the Defense of Marriage Act.

Q:  And so the President's position just to get this right is that if a state wants to decide through a majority vote that it will allow for same-sex marriages, the President wants to have the federal government smash that down and make sure that no state can decide that, right?

MR. McCLELLAN:  No, I think that you're talking about what activist judges are doing right now.  The activist judges are seeking to redefine marriage for the rest of society, and the people's voice is not being heard in this process.  That's why the President is committed to moving forward with Congress on a constitutional amendment that would protect the sanctity of marriage and allow the people's voice to be heard in this important debate facing our society.

Q:  But it would only allow it would give victory to the people who support that definition of marriage, wouldn't it?  Because if the state

MR. McCLELLAN:  There are 11 states that recently voted on this very issue, and they voted to ban same-sex marriages overwhelmingly in those states.  And I think if you look at any number of indications, there is overwhelming support across the United States for protecting the sanctity of marriage.

Q:  Just to get this straight.  The President does not want to allow the people of a state to decide to allow for gay marriage.  In other words, he wants a federal constitutional amendment that would stop a majority in the state

MR. McCLELLAN:  He supports the constitutional amendment

Q:  from voting.

MR. McCLELLAN:  and the constitutional process would allow the state's voice to be heard.

Any self-respecting federalist should instantly see the cheat.  Yes, in a national ratifying debate, states opposed to the amendment banning gay marriage could weigh in.  But once the amendment passed, they'd lose their autonomy.  There is no point yammering on about those pesky activist judges if in fact no one else is allowed to adopt gay marriage, either.  Still, practice makes perfect, even in hypocritical illogic.  The press secretary, bless his professionally glib self, has learned to recite this cheat of an argument with a straight face and move on briskly.  From last week:

Q:  Scott, the Republican-majority Texas House of Representatives on Monday voted 101 to 29 to allow voters in November to decide whether the state constitution should ban same-sex marriages and civil unions.  And my first question, the President supports this Texas Republican vote, doesn't he?

MR. McCLELLAN:   Well, Les, the President believes that we need to protect the sanctity of marriage.  This is something that he believes goes to one of the enduring values of this country.  The President believes marriage is a sacred institution between a man and a woman.  And as you are aware, he's called for a constitutional amendment to address the issue that we're seeing because of activist judges or local officials trying to redefine the institution of marriage.   And the constitutional process, we believe, gives states all a way to have their say, have their voice in that debate.

Federalism took a hammering on the left in the '50s and '60s, when it lapsed into a defense of Southern state-sponsored racism.  But surely there are solid reasons for various sorts of lefties to champion it.  Participatory democrats will like it for what the Europeans call subsidiarity, keeping power as close to the local unit as possible.  Communitarian types (not I, said the little brown bear) will like it for permitting (benign?) local variation.  Liberals indebted to Dewey and other pragmatists, like me, will be keen on learning what we can about "facts" and "values" alike by seeing lots of experiments.

As I say, I want supporters of 3 out of the closet.  Don't let them wrap themselves in the cloak of concern for popular decision-making and states' rights.  Their support for a constitutional amendment means they don't believe a word of it.  So neither should you.

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» Morning Links 5/03 from Pseudo-Polymath
A Link roundup for today. [Read More]

Tracked on May 3, 2005 8:33:39 AM

» federalism and gay marriage from An Ergodic Walk
Don Herzog over at Left2Right has a nice essay on the supposed reasons to oppose gay marriage and their mutual incompatibility. He says there are three basic arguments: 1. Family law belongs to state governments. But it's outrageous for state... [Read More]

Tracked on May 3, 2005 3:27:55 PM

» What Would Change Your Mind? from PBS Watch
Left2Right has an interesting essay on alleged contradictions in the reasoning of those who oppose same sex marriage. The essay does not appear to consider the combination of ideas mentioned here and in the compromise proposal. [Read More]

Tracked on May 4, 2005 11:13:17 PM

» federalism and gay marriage from An Ergodic Walk
Don Herzog over at Left2Right has a nice post on the supposed reasons to oppose gay marriage and their mutual incompatibility. He says there are three basic arguments: 1. Family law belongs to state governments. But it's outrageous for state... [Read More]

Tracked on Nov 16, 2005 12:53:04 PM

Comments

Posted by: peter

To say that the President's arguements aren't consistent is not in the least bit a convincing criticism. Instead,look at how much effect each argument has on its own.

1. Has resonace because we inherently trust government that is closer to us to better represent our views, and our federalist system has more or less served as well for 200+ years.

The courts comment is an entirely different vein and should be separate. Irrespective of the merits of a government recognition of the same-sex partnerships, every liberals nervous system should have jumped at the decree of any branch of government into the sphere of private relationships. The impression is that the Left can be led by the nose by any minority that purports to be on their side and shouts loud enough.

2. Full faith and credit is a legal solution to a political and social issue. EVERYONE's pain meter should be jumping here. Who could want another protracted Roe v. Wade, another long-term and never ending rallying cry for the Right?

3. A simplistic theocratic argument seeking to encompass many complex settings, and yet this is the political sphere, isn't it?
Yet it opens the way for a more complex definition of marriage as defined by social conservatives. I would think liberals should have some constirnation in a tighter definition of marriage. Where they have worked for more freedom within the context of social relationships, this political dynamic is allowing social conservatives to hedge and better define marriage, such as the contract marriage concept, very realistically limiting that sphere of independence.

Posted by: peter | May 3, 2005 7:20:02 AM


Posted by: Steve132

Opponents of same-sex marriage are not the only people guilty of inconsistency. Many SSM advocates suddenly discovered the value of federalism only when the FMA began to look like a plausible proposition.

In addition, it is less than fair to criticize SSM opponents for advocating the FMA without mentioning the main reasons why they do so. Support for the FMA is primarily driven by the fear that at some stage the Supreme Court will mandate SSM, either by finding a "right" to SSM in the 14th amendment or by insisting that the full faith and credit clause requires all states to recognize SSM if one state authorizes such marriages. SSM opponents are not generally afraid of allowing the people and their elected representatives to decide. The results of the 17 or so state referenda held on this issue to date give them little reason to be afraid.

A secondary reason for supporting the FMA is the conviction that marriage cannot be defined in fundamentally different ways in different states. This can lead to all sorts of disputes and hence increased pressure on the Court to step in and resolve matters by mandating some common (probably the most expansive) definition of marriage. For this reason Utah was denied statehood until the territory agreed to adopt a state constitution prohibiting polygamy.

Posted by: Steve132 | May 3, 2005 9:36:39 AM


Posted by: Tom Perkins

Don, while I'd personally prefer for the proponent of gay marriage to:

1) See the injustice of using the death threat every law/tax imposes to force people who think homosexuality is evil to pay money towards the provision of benefits for gay couples.

2) The a better thing would be to get gov't out of the marriage business altogether, a) have gov't recognize any civil union insofar as it is a contact, b) let anyone be married in the eyes of religious community as that commuunity sees fit.

I can't figure out why you think the President's several objections to gay marriage need to "cohere" to suit you when for his purposes only one of them needs to work. Man's got few issues to work on, and there is a law of diminishing returns.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 9:39:34 AM


Posted by: Tom Perkins

"2)The a better"

should read

2) Think that the better

TDP, ml,msl&pfpp

Posted by: Tom Perkins | May 3, 2005 9:41:53 AM


Posted by: Terrier

Amen, Brother Don! As I've said before: some people think that their personal feelings of revulsion at seeing two men walk the street holding hands (as long as it is not a sycophant flattering a tyrant) should become public policy in a country founded on the princple of liberty for all. I do not care how these people feel. The few times I've had to go into a Christian church in the last 20 or so years for a wedding or a funeral has absolutely turned my stomache but I would never dream of legislating them out of existence and I truly believe that many Christian churches are "destroying the fabric that holds our nation together." Rather than worry about my neighbor consumating his love for his pets with a formal ceremony I am more concerned that he will grow so greedy and self-centered that he will either stop participating in the community or actively work to limit his support and thus cause the local library and the pool to shut down. This is particularly worrisome to me because with summer approaching the library and the pool are more important to the children of the community than any church will ever be. Of course, I still marvel that my father told me that the greatest moment of Harry Truman was when he issued an executive order integrating the Armed Forces. I wonder what kind of society we would have today if he had waited for 'consensus.' But we all know the truth about the Radical Republics - they admit it themselves, they do it not because of 1, 2, or 3 (hell, some of them are gay,) they do it: "Because they get votes bashing gays."

Posted by: Terrier | May 3, 2005 9:41:58 AM


Posted by: Tom Perkins

"some people"

Well over half the people in the country, Terrier, do not feel the govt's of any jurisdiction in this country should recognize gay marriage. And the unspoken--but if you think it was not there, you're dumb--phrase missing from your "liberty for all" silliness was "liberty for all not committing criminal acts." Which sort of act homosexual acts universally were back when "liberty for all" was first mentioned in this context.

The recognition of gay marriage means that many people's tax money will go to support something they loathe. If you think it is unjust or unwarranted that there be real, negative political consequences for the advocates and beneficiaries of SSM, then you are wrong.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 9:53:32 AM


Posted by: Don Herzog

peter writes,

every liberal's nervous system should have jumped at the decree of any branch of government into the sphere of private relationships.

I don't get it. Or is peter denouncing the law for recognizing heterosexual marriages? Why is same-sex marriage any more an intrusion into the private sphere than same-sex marriage?

Tom Perkins writes,

The recognition of gay marriage means that many people's tax money will go to support something they loathe.

Once again, the appeal to the conscientious taxpayer. Once again, I remind you that you have an evil twin: the millions of Americans whose tax money is going to support a war in Iraq that they loathe. Rather more money, too. What follows?

Posted by: Don Herzog | May 3, 2005 10:31:04 AM


Posted by: catfish

I don't understand the problem with "people's tax money going to something they loath." This happens all the time. People who don't like the Iraq war must pay taxes anyway. People who loath racial or religious people have to pay for their children to be educated. People who loath the institution of marriage are forced to fund benefits for spouses. The childless have to contend with child tax credits, to say nothing of the EIC.

Of course, it seems very unlikely that this particular amendment will pass. The longer that it is delayed, the less likely it becomes. Perhaps opponents of gay marriage should seek a DOMA type amendment instead.

Posted by: catfish | May 3, 2005 10:37:03 AM


Posted by: mitch

For what it's worth, I am not afflicted by legal training. Having said that, I would support SSM under the Full Faith and Credit clause provided that it also be applied to Concealed Carry for firearms. Those opposed to SSM have typically supported CCW and from a political skirmish POV, it would be an interesting battle to tie the two together.

Posted by: mitch | May 3, 2005 10:37:49 AM


Posted by: Josh Jasper

The recognition of gay marriage means that many people's tax money will go to support something they loathe. If you think it is unjust or unwarranted that there be real, negative political consequences for the advocates and beneficiaries of SSM, then you are wrong.

Well, Tom, if I loathe you, why should my tax money go to support your marriage? But it does. So, *if* we're going to have a standard, same sex couples ought to be included. And *if* abolishing government interaction in marriage was a vialble position, I'd support it, but it is not, so pretending that same sex couples ought to give up and just agitate for getting government out of the marriage buisness is disengenuous.

As for half the country, well, a good portion of them are so stupid that the've all but admited that it's nothing more than the name 'marriage' that upsets them. If it were called 'civil union' and given the exact same benefits, they'd react differently, and an even greater number are OK with only limited civil unoins, but can't properly articulate which rights they're OK with getting granted to same sex couples, which ones have to be kept to marriage, and why.

As for your mention of same sex acts being illegal way back when, yeah, they were. And raping one's slave and selling the infant was legal in some areas. That should tell you something about the morality of the founders. I'd hope you hold yourself to a higher standard.

Posted by: Josh Jasper | May 3, 2005 10:38:40 AM


Posted by: john t

Having just emerged from my states rights closet,leaving John C Calhoun temporarily alone,I'd like to learn just how "supportfor a constitutional amend. means they don't believe a word of it",states rights that is. Further,"any self respecting federalist should see the cheat,-----states would weigh in but lose autonomy". A] invoting for an amendment they are exercising autonomy, B] more importantly states have routinely lost autonomy thru the amendment process and not just in a judicial manner. The 16th,17th,and 19th amends come to mind. Maybe the fear is that so many states having laws defining marriage as hetrosexual an amendment would hardly be difficult to achieve. As to full faith and credit,it would be interesting to see the court overturn the laws and amendments of at least 35 states reversing an argument used in Roper V Simmons. Not that that would be an impediment,just hand the case to Kennedy. In passing the reporter [ or reporters ] questioning McClellan is an obnoxious fool,obnoxious and a fool.

Posted by: john t | May 3, 2005 10:51:19 AM


Posted by: Mona

Don writes: You might think it weird to let a Carolina court second-guess Nevada's own judgments about who holds residence there. It is weird, it did mean that Carolina's bigamy conviction was upheld, and it does remind us that full faith and credit has bent or broken to accommodate different state laws.

I don't think it "weird" at all. In Williams II, the High Court had to decide whether Nevada's lax approach to residency vitiated NC's right to jurisdiction over people actually domiciled there. If State A says you only have to spend one night in a hotel there, to be considered a resident subject to its laws, and all other states are compelled to respect the legal consequences of that, the jurisdiction of all other states is gutted. The implications of such a position are wide, and far beyond matters of marriage (as the Court discusses), which would not be true of merely recognizing SSM. The High Court observed in Williams I:

In short, the decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact. To permit the necessary finding of domicil by one State to foreclose all States in the protection of their social institutions would be intolerable.

But I find nothing in either case that would preclude the Full Faith and Credit clause from properly requiring that when two same-sex people who are by any reasonable measure actually domiciled in State A, and who marry there, they should have their marriage recognized in State B should they move there. There is a good argument that the FF&C clause would compel recognition of SSM in states which choose to disallow it; any other position is impracticable in a federation such as the United States. (Yes, there are public policy grounds against so applying the FF&C clause, but I think those arguments are weak when balanced against the intolerable legal quagmire not applying it would engender.)

I disagree with Bush's position on SSM, but I do not find that his arguments are incoherent. I endorse Don's point #1, and believe point #2 should be true. Point #3 I oppose, but if opponents of SSM are concerned that various state and maybe the federal courts are going to pull SSM out of a penumbra somewhere and force it on them, then their response with #3 is rational and consistent with their overall position.

Connecticut has legislated recognition of SSM. That is the proper way to do it, and in my strong opinion, any gay couple truly domiciled there, and who marry, and then move to, say, MI, should have their marriage recognized in MI per the FF&C clause. Opponents of SSM who would seek to foreclose that result by federal constitutional amendment are being inconsistent, since no judicial activism is involved.


Posted by: Mona | May 3, 2005 10:57:57 AM


Posted by: David

Tom, you know, Gay men and women pay taxes, too; and, to the extent tax revenue is used for the benefit of married couples, benefits are distributed to heterosexual couples but not homosexual couples, even though the two may be identical in all the relevant ways. I'm sure gay couples loathe this distribution with the same passion that some loathe same-sex love.

Also, I'm sure there were plenty of people who loathed interracial relationships. Was it wrong for the Court to force the state (in Loving v. Virginia) to permit interracial marriage if it was going to recognize same-racial marriage? If the Court did nothing improper there, what is the difference in the context of gay marriage? Should there be some kind of limitation on what we we allow the animus and disgust of voters to achieve politically? Aren't there certain criteria relating to equality that laws must satisfy to be valid? Or can majorities do anything they please?

Posted by: David | May 3, 2005 11:00:09 AM


Posted by: D.A. Ridgely

Mr. Herzog writes:

Once again, the appeal to the conscientious taxpayer. Once again, I remind you that you have an evil twin: the millions of Americans whose tax money is going to support a war in Iraq that they loathe. Rather more money, too. What follows?

Slash taxes?

Posted by: D.A. Ridgely | May 3, 2005 11:05:46 AM


Posted by: CTW

"... a better thing would be to get gov't out of the marriage business altogether"

but how far are you (or more important, GM opponents) willing to go? first, how about expanding this to getting gov out of the whole "lifestyle" business, including tax subsidies: no joint returns (and no dependent deductions, credits, etc), no home mortgage or interest deductions, etc, etc.

altho a supporter of gay civil rights (viscerally - "some of my best friends ...") my initial reaction to the concept of GM was negative based on concerns that it would lead to an undesirable expansion of what I feel is a questionable system of economic benefits attached to marriage/lifestyle. tho naively hoping that a rational debate that would include such broader considerations might ensue, the observation that objections to gay marriage were almost exclusively based on prejudice soon led me to abandon that position.

so while the concept of quieting opposition to gay marriage by getting gov completely out of the marriage (and more broadly, lifestyle) business works for me, my bet is on that being a minority position.

Posted by: CTW | May 3, 2005 11:10:42 AM


Posted by: D.A. Ridgely

David writes: [C]an majorities do anything they please?

Of course they can. A sufficiently large majority, for example, could reinstate slavery, disenfranchise women and make homosexual acts a capital crime. A sufficiently large majority can repeal the Constitution, imprison and confiscate the property of whatever minority it targets and declare Pi = 3. That’s the great thing about democratic majoritarianism, isn’t it?

Posted by: D.A. Ridgely | May 3, 2005 11:15:41 AM


Posted by: miab

David writes: "Or can majorities do anything they please?"

D.A.R. then plays with the word "can" to reiterate his opposition to democracy.

But I actually don't know what you mean by "can." By "can" do you mean "have the raw power to", or "have the constitutional authority under current constitutional jurisprudence to" or "have the ability to amend the constitution to" (which is how DAR chose to interpret this), or "should", or "have the moral right to"?

Posted by: miab | May 3, 2005 11:26:09 AM


Posted by: Mona

Don writes: Once again, I remind you that you have an evil twin: the millions of Americans whose tax money is going to support a war in Iraq that they loathe. Rather more money, too. What follows?

There is simply no alternative but to compel everyone to pay for the common defense. We also need to control contagious diseases, and there is no alternative but to compel Christian Scientists to fund CDC measures to battle common biological enemies. But coercion is an evil, and should not be applied except when truly necessary. When not applied to a common enemy or necessary good (e.g., interstate highways), there is little justification for it. Coercion ought to be used sparingly.

None of which is to say that I am persuaded that recognition of SSM should be trumped by taxpayers who don't wish to support it. If they wish, they can lobby against all financial benefits awarded by the state to married couples. But if we are to retain such state-conferred benefits, there is no reason they should not equally apply to all who are legally married in any jurisdiction. After all, as it stands gay taxpayers are compelled to subsidize an institution foreclosed to them, and that certainly balances any concerns straights might have about reciprocal subsidization.

As to the idea that the FF&C clause should compel State A (which prohibits the carrying of concealed firearms) to allow carrying of concealed weapons when a citizen of State B (which allows such carrying) crosses into A, no. These are issues that pertain entirely to the state of affairs within the borders of each jurisdiction, and do not implicate other legal rights or relationships. A SSM couple in a state that permits their marriage, would be harmed if they moved to another state which did not, and suddenly found that, say, if one of them becomes ill the other could not be consulted about proper medical care and give consent for emergency treatment. No such issues and complications are implicated in right-to-carry laws. The FF&C clause is meant to avoid intolerable legal complications and to promote comity in the federal union; it is not intended to vitiate the right of states to legislate within their borders.

Posted by: Mona | May 3, 2005 11:29:15 AM


Posted by: ya hozna

Along with closing any institution that advocates a belief in an absurd, omniscient Being, banning all marriages--str8, gay, or otherwise--is a better start. Cohabitation contracts could be allowed to those qualified people deemed worthy of relationships and breeding by state mental health experts.

Posted by: ya hozna | May 3, 2005 11:45:30 AM


Posted by: Tom Perkins

Don Herzog wrote: "Once again, the appeal to the conscientious taxpayer. Once again, I remind you that you have an evil twin: the millions of Americans whose tax money is going to support a war in Iraq that they loathe. Rather more money, too. What follows?"

Actually, THE appeal is to the voters/taxpayers in a strategic majority of electoral college vote earning districts--I think George is continuing to do well on that score. YOUR appeal is to a "conscientious" taxpayer. Also, the defense of the nation is an explicitly authorized activity of the national government, and it is authorized to be conducted by means of majority rule--a similar majoritarian test of the "full faith and credit" clause on the issue of SSM leaves the supporters of SSM, well, without support. The passage of a national amendment against SSM is likely--if it to be done, I prefer it exempt questions of marriage from the "full faith and credit clause" as opposed to being more prescriptive, but the passage of so limited an amendment is unlikely--it's not what the people want.

I submit your appeal to the "conscientious" taxpayer or voter is best left to the very margins, the heart of the issue is only force, and by an overwhelming degree the opponents of SSM have it. The place for proponents of SSM to spend their energies on this issue is damage control.

My taxes go, in part, to the support of such odious organizations as the DEA and the ATF, and lets not talk about the damn SSA and the rest of FDR's benighted get. I pay them because for now it is prudent to do it (as long as we're flirting with whataboutery). The opponents of the Iraq war will continue to pay their taxes because it is prudent for them to do it. Until and unless they* (and the left generally) are prepared for a second revolution to return the governments of the jurisdictions in the United States to one which by and large reflects the classically liberal principles of the first american revolution (the only revolution which worked^TM), then I am uninterested in helping them ease their consciences.

*Of course, if the proportion of persons taking freedom and the constitution literally were to increase to a sufficient level, this second revolution would proceed without ANY protests the left might raise being taken into consideration, at the end of the day.

Yours, TDP. ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 11:53:18 AM


Posted by: Tad Brennan

I think it's worth reiterating the way that 3) vitiates 1), because as the later McClellan quote shows, the WH wants to obscure the issue here.

Any real advocate of states' rights cannot be satisfied by saying that the amendment process "gives states their say". After all, the amendment process could be use to allow Callifornia to subsume Montana in defiance of the wishes of the people and legislature of Montana.

All that is needed is for two-thirds of the states to pass an amendment changing Article IV sec. 3 (the one that requires the approval of the legislatures of those states concerned in any state-fissions or state-fusions). Amend it to say that the state legislature of any more populous state may dissolve the legislature of the less populous state and assume its representatives to Congress and any other powers vested in the less populous state.

Then once California has gobbled up Montana, it can go on a state-eating spree throughout the West.

Or amend the same section to say that the populations, representatives, and powers of any state may be reassigned to the District of Columbia, at the direction of the Supreme Court.

Does this look like a preservation of states' rights?

"Sure!" says McClellan, "because the constitutional amendment process gives all the states a way to have their say!"

I don't say that this is the worst distortion that McClellan has been guilty of, but it is one that advocates of states' rights ought to be alarmed at.

Posted by: Tad Brennan | May 3, 2005 11:59:27 AM


Posted by: bakho

Gay marriage supporters believe that what happens between 2 consenting adults is no one else's business and the state should make provisions for non traditional "marriages". The religious right believes that if the US endorses gay marriage, that God will vent his wrath on the US and all its people. So from the religious right POV, it is not about a private matter between 2 individuals but about protecting society as a whole from the wrath of God.

I would prefer to see a "seperation of church and state" on the marriage issue. Churches do Marriage. If you can find a church to do your marriage, then you can be married.

States do Legal Contracts. They should not be called "marriage", but "personal partnerships", "Family Contracts", "Nuptial Contracts" or some other euphemism to appease the anti-marriage crowd. We already have pre-nuptial contracts. We have medical privacy release (You now have to sign a document for your children to be notified that you have been hospitalized.) and a host of legal documents that operate outside the boilerplate state marriage laws. This could be an opportunity for the states to broaden the marriage law options. Couples could choose among plans A, B or C or file their own pre-nup version. Basically, it would be a contract including separate and joint financial obligations and resources, privacy and information sharing, power of legal and medical attorney and child custody and other issues. It would not be a "License to have sex", the view of many on the religious right. That "licsense" can reside elsewhere.

Marriages can then be placed with religious organizations. Since "marriage" is a Religious fight anyway, let's move the battle to the churches where it rightfully belongs. The churches can fight it out.

Posted by: bakho | May 3, 2005 12:02:57 PM


Posted by: CTW

"I disagree with Bush's position on SSM ... opponents of SSM are ... consistent [in] their overall position."

the problem I have with this general theme is that it mixes presidential posture (which, admittedly naively, I would prefer to be an attempt at balancing the divergent interests of the whole citizenry) with political strategy. yes, proponents of any view are perfectly justified in strategizing, maneuvering, puffing (altho preferably not out-and-out lying), etc. but isn't one role of political leadership to guide by example? and if so, what kind of example does it set to say (publicly - in private is another matter) "I strongly believe A ... and [aside: just in case that doesn't fly] I also strongly believe not A"? this is worse than "incoherent" - it's blatant lying. you may prefer strategy A but believe it entails risks that drive you to strategy B, but you either believe principle A or you don't.

Posted by: CTW | May 3, 2005 12:08:53 PM


Posted by: john t

State mental health experts? The guys who contradict themselves in court every day of the week,excluding Saturday and Sunday! Poor souls being forced to fund a war in Iraq? After a Congressional approval for all necessry force and ample provision in the constitution and a couple of pops of Ritalin they may be able to cope. Need it be said that the founding body of American law allows for war but not for two guys from the Village getting married.

Posted by: john t | May 3, 2005 12:13:07 PM


Posted by: Tad Brennan

"ya hozna/stick"--

"Cohabitation contracts could be allowed to those qualified people deemed worthy of relationships and breeding by state mental health experts."

So now we get Stick's familiar eugenics hobbyhorse.

You know, I am not sure I have ever seen another writer--on blogs, newspapers, or bathroom walls--work with such persistence and diligence to undermine his own credibility.

Posted by: Tad Brennan | May 3, 2005 12:30:24 PM


Posted by: Tom Perkins

Josh Jasper, in writing, "Well, Tom, if I loathe you, why should my tax money go to support your marriage?"

Evidently doesn't recall that I do in fact oppose anyone's tax money going to support my marriage--but then that is in large measure the compromise descending from the simultaneous rise of the left and the growth of the federal government entirely outside the proper bounds of the constitution.

"so pretending that same sex couples ought to give up and just agitate for getting government out of the marriage buisness is disengenuous."

No, it is the idealistic and most honest approach they could take. It may fail, although the "civil union" strategy, I think, is a winning one. C'est la guerre.

"a good portion of them are so stupid that the've all but admited that it's nothing more than the name 'marriage' that upsets them"

Way to make friends and influence people. They don't agree with you or value what they value, they must be dumb. I can see that point of view, I largely hold it in regard to the left; "leftists are dumb" has a wonderfully intuitive and truthful ring to it.

"As for your mention of same sex acts being illegal way back when, yeah, they were. And raping one's slave and selling the infant was legal in some areas. That should tell you something about the morality of the founders. I'd hope you hold yourself to a higher standard."

It (and the relevant debates about slavery and it's relationship o the constitution)tells me that they took property rights seriously and that they had not explored to their common satisfaction the impossibility of morally holding people as property. Prudence led them to put off the question, and I think they were right to do it. The left reraises the possiblity of people being property by presuming an inherently unlimited "right" of government to tax, authorization for the tax in the constitution notwitstanding, and the specious arguments of Anderson to justify taxation in its current form here do put me in mind of Southern arguments to the effect that Christianity and slavery were perfectly compatible.

Mona wrote: "If State A says you only have to spend one night in a hotel there, to be considered a resident subject to its laws, and all other states are compelled to respect the legal consequences of that, the jurisdiction of all other states is gutted." A point so obvious and compelling I cannot imagine a reasonable argument to the contrary.

CTW wrote: "but how far are you (or more important, GM opponents) willing to go? first, how about expanding this to getting gov out of the whole "lifestyle" business, including tax subsidies: no joint returns (and no dependent deductions, credits, etc), no home mortgage or interest deductions, etc, etc."

Oh yeah!!! Now you're talking my language! Flat tax! If only a handful of idiot leftist threaten suicide over it, go right ahead. If they threaten war, go ahead.

miab writes: "But I actually don't know what you mean by "can." By "can" do you mean "have the raw power to", or "have the constitutional authority under current constitutional jurisprudence to" or "have the ability to amend the constitution to" (which is how DAR chose to interpret this), or "should", or "have the moral right to"?"

And the question is largely rhetorical, "have the raw power to" is the historically correct answer, and what should be bet on, generally.

Ya Hozna wrote, nothing I care to reply to. What he wrote really isn't worth any more of my time.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 12:34:41 PM


Posted by: Terrier

Hail Commissar Tom! "liberty for all not committing criminal acts." Thanks for clarifying your allegiance to "Article 59. Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations." I guess we just don't have "certain unalienable Rights" in your vision of the Soviet State! Of course, make sure that I don't get to decide what your obligations are or what constitutes 'anti-social' behavior or you may face a cold and bleak landscape.

But as I said, I don't care if you are filled with hate and fear. Get counseling (pay for with your own money!) Don't expect me to care either about who you think should be free. My father told me once (long before any talk of amendments) that he didn't want citizens to burn the flag that he served under for 35 years but he served so that they could burn it if they wanted. He served to protect freedom and not a piece of cloth - what is important is the principles the country stands for - not the symbols that represent it.

Posted by: Terrier | May 3, 2005 12:43:59 PM


Posted by: Bret

Wow, this is extraordinarily surreal. Here in this comment thread is a group of people more or less civilly and seriously discussing the coherence and consistency of politicians arguments about a topic that is so emotionally charged that there can't possibly be a coherent and rational debate by said politicians. If one passionately believes that homosexuality is an abomination against God, one is likely to use any means, including lies, hipocracy, lies about hipocracy, lobbying congress, constitutional amendments, judicial activism, and unfortunately possibly violence to achieve the end of preventing SSM (and other government acceptance and support of homosexuality). On the other side, if you're gay and have a strongly passionate need to be married to the one you love and/or have State supported marriage available in your community, then you're also likely to use any means to achieve your ends. God and love go beyond rational discourse.

There's inherently no possibility for common ground here, but heh, I guess it's Left2Right's job to try anyway. Good luck!

Posted by: Bret | May 3, 2005 12:50:53 PM


Posted by: Tom Perkins

Terrier presumes much in his last post. I presume, for example, that he does not support liberty for murderers to murder, thieves to steal, and rapists to rape--but he is a leftist, perhaps I presume too much. I seem to recall the left protesting, for example, "truth in sentencing."

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 12:53:20 PM


Posted by: RonZ

I'll avoid the whole sunstantive issue of SSM to comment on Prof. Herzog's first point, that the argumentation being put forward by the Administration is flawed.

For the record, I actually agree with some people with whom I disagree on most everything else that the state has no business being in the marriage business. Marriage is about being accepted by a community as a unit. It doesn't need to be my community. Someone else's marriage simply doesn't have any effect on the marriage I share with my wife. Doesn't matter to you, either, so the polity should be out of the business. It simply has no stake, other than a visceral reaction of "Ewwww." I'm not sure how that visceral reaction got raised to a moral argument, but I admit that I have the same reaction when I see a LOT of marriages. That doesn't make it the business of society.

This doesn't mitigate against child care deductions, as whoever is supporting the child gets the deduction, or against mortgage rate deductions, since whoever pays for the house gets the deduction. It simply eliminates the presumption that two people are legally one. Make it contractual. We could have a boilerplate agreement giving the other person or persons durable power of attorney and such. Then, if you can find a Rabbi, Priest, Minister, Satanist, Mullah or Wiccan leader who will also declare you married, you invite your community to that ceremony and call yourselves married. Or bonded. Or tied together in a death grip of Satanist hell for the purpose of bringing the anti-Christ closer. Whatever you want to call it.

Just talk to me if you want to buy a house together so we can figure out how to split the marriage deduction, and when you want your children educated by the state so we can figure out how to do it. It's messy and will require some good contracts be written, but I just don't see why my wife and I should have a state sanction to our relationship. It's nobody else's business.

That said, Don argues that the Bush message is incoherent, and that this invalidates the whole thing. But that's simply not true. It is an acceptable mode of political argument to say, in effect, "You should agree with me for reason A. But, if that is not persuasive to you, let's talk about reason B. And if you're still not convinced, there's reason C. But all of these argue, not as a whole, but individually, that, in the end, *you should agree with me!*"

President Bush is not (or at least, ought not be) building an argument. He is giving three different reasons to vote with him to three different constituencies. In the end, are those constituencies likely to disagree about later policy questions? Of course. Happens all the time. But on this argument, each of those groups should, he believes, come to the same conclusion. Don misconstrues that for being a logical argument. I contend that he's seeing argumentation where it doesn't exist.

Look, given my own political beliefs, it doesn't take much to convince me that Bush's arguments make no sense. But this isn't an argument. Politicans sometimes make arguments, but this isn't one of them. Don is aiming his prodigious intelligence at a potemkin village target.

Posted by: RonZ | May 3, 2005 12:56:01 PM


Posted by: Tom Perkins

RonZ boils it down effectively, although I phrase it this way, as opposed to the "ptemkin village" construction.

In aiming squarely for the weak spot between the free-standing arguments, Don hits nothing of any worth to his opponents.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 1:00:31 PM


Posted by: Bret

Don Herzog wrote: "Once again, the appeal to the conscientious taxpayer. Once again, I remind you that you have an evil twin: the millions of Americans whose tax money is going to support a war in Iraq that they loathe. Rather more money, too. What follows?"

I have a solution to this quandry. Have an additional tax form where you can identify which categories your tax dollars can (or can't) be used for (it wouldn't change the total amount of taxes you pay). Then have the IRS computers tabulate the categories and ensure that each category (and group of categories) have enough people who don't exclude it so that it is adequately funded. Use the deficit spending to pay for any categories that don't have enough revenue.

That way we can all pay our taxes and be sure that we don't pay for anything that we find loathsome, but everything gets funded! Everybody wins!!! Hooray!!!!

Posted by: Bret | May 3, 2005 1:01:18 PM


Posted by: Tom Perkins

And about state's rights--I'm sorry, this bugs me, I'd like to shift the usage of the term "right". States have no rights whatsoever, states don't really exist. People have rights. People agree to tolerate the activities and, frankly, the existence of people employed at public expense because it is prudent to do so, and the biggest part of whether it is prudent to do so is whether those people are doing what it is agreed commonly enough that they should be doing. Public servants come in three or four broad categories, and WRT federalism, the relevant ones are national/federal or state. If you wanted federalism to be real, repeal the 17th amendment. In large measure, unless you want to talk about that, don't bring up federalism. Since the 17th, it's all whistling past the graveyard on that one.

For the record, federalism is a tool, a means to an end. It is nonsensical to say that the passage of an amendment to the federal consitution violates federalism any more than you can say using a hammer violates the principles of a saw.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 1:09:20 PM


Posted by: D.A. Ridgely

Hey, where'd the little monkey go?

Posted by: D.A. Ridgely | May 3, 2005 1:11:00 PM


Posted by: Tom Perkins

Bret wrote about an interesting idea, to which I add.

And if 3/4 quarters of the population approve of an expenditure, go ahead and mingle funds for that purpose. Combine the thoughts of John C. Calhoun and the founders and a concurrent supermajority rules the day.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 1:12:13 PM


Posted by: Tad Brennan

Tom--
"States have no rights whatsoever, states don't really exist."

Hmmm--what do you make of this part?

Art. X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Posted by: Tad Brennan | May 3, 2005 1:23:12 PM


Posted by: miab

RonZ writes: "That said, Don argues that the Bush message is incoherent, and that this invalidates the whole thing. But that's simply not true. It is an acceptable mode of political argument to say, in effect, "You should agree with me for reason A. But, if that is not persuasive to you, let's talk about reason B. And if you're still not convinced, there's reason C. But all of these argue, not as a whole, but individually, that, in the end, *you should agree with me!*""

But that's not what Bush is doing. Reasons 1 and 2 don't actually support his position on gay marriage. A constitutional amendment motivated by those would be nothing more than a tweak to the full faith and credit clause, together with an amendment clarifying that permitting SSM is not *mandated* by the constitution. There would be no federal response to the issue within each state of whether a court could or should find certain rights in the state constitution -- each state would address that in its own way.

This would avoid the possibility of federal courts finding this right and mandating it for all the states, as well as the possibility that one state could enact SSM and through the FF&C clause force the other states to recognize gay marriages.

But the only reason to advocate a federal amendment *prohibiting* SSM, and taking the right to permit SSM out of states' hands is: "Same-sex marriage is wrong, period. Marriage must be between one man and one woman." And this is what Bush is advocating. So points 1 & 2 are nothing more than a smokescreen. His amendment doesn't even address those points -- and is directly contrary to point 1.

Bush's problem is that the real justification for the Anti-SSM Amendment, when expressed clearly and honestly, sounds embarrassingly discriminatory, driven by purely anti-gay feeling. For some elements of the Christian right, this is no problem at all -- they are quite clear in where they stand on homosexuality and homosexuals. But Bush needs a broader appeal, and can't afford to be seen as motivated by bigotry. So he hides his real reasons behind states' rights platitudes that aren't reasons at all, because if taken seriously they would support something entirely different from what he is supporting.

Posted by: miab | May 3, 2005 1:25:26 PM


Posted by: Tom Perkins

Tad, it means the employees of the legal fiction authorized by the people in the constitution cannot usurp the powers (NOT RIGHTS) separately given by the people to the employees of the legal fictions called States.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 1:27:32 PM


Posted by: Will

The sad fact is that many take the position of the government as gospel truth, the de facto standard of what is right and acceptable. I can't number the times when I'm debating current intellectual property law with someone and they summarize their objection to downloading mp3s with "its illegal" (the subtext being that illegality implies immorality). Certainly, the perception of abortion being morally acceptable has greatly accelerated since its legalization by the SC -- there exists a strong authoritarian bent to most people, and they find it difficult to grok that what the state deems legal may still be wrong and what the state declares illegal may be right.
In a perfect world the state wouldn't have a dog in the fight, and all would recognize that laws are the result of political comprimise and not the proper source for an individual's sense of good/evil behavior. Also, the state wouldn't be in the business of "educating" young people and we wouldn't have to worry what the "official" position of the state was on matters of personal conduct. Oh to live in such a place!
As America is right now, this whole debate is about influence and perception: culture war. Don thinks the other side is the only one using any and every tool available to win it? Wake up and smell the napalm, my friend.

Posted by: Will | May 3, 2005 1:31:16 PM


Posted by: miab

Tom Perkins: "For the record, federalism is a tool, a means to an end. It is nonsensical to say that the passage of an amendment to the federal consitution violates federalism any more than you can say using a hammer violates the principles of a saw."

Federalism is two things: (1)it is a political philosophy advocating a certain view of what *ought* to be the role of the federal government and the state governments; and (2) It is an interpretation of what the constitution actually does say about the role of the federal government and the state governments.

An amendment to the constitution can clearly violate part (1) of federalism. Part 2 can't exactly be violated by an amendment, but certainly it could be fair to say that an amendment is contrary to the rules of federalism present in the pre-that-amendment constitution.

Almost always, a person's view on (1) drives his view on (2). It is a rare person who says "I wish the constitution gave the federal government the authority to run public schools, because that would be a terrific idea, but unfortunately it has no such power."

Tom Perkins also writes: ". . . powers (NOT RIGHTS) . . . "

Please explain what you see as the distinction -- or rather, as the importance of the distinction.

Posted by: miab | May 3, 2005 1:40:52 PM


Posted by: AlanC9

RonZ (and Tom): So it doesn't matter that Bush's arguments aren't coherent because they're just talking points, and don't reflect his own thoughts in any way.

That works as long as you really don't care about a politician's philosophy or ideas. He's just a grab bag of policy proposals. Works for me, but I don't think most people like to vote on that basis.

Posted by: AlanC9 | May 3, 2005 1:41:37 PM


Posted by: D.A. Ridgely

Speaking of state supported education and gays, I wonder if anyone might like to opine on Rumsfeld v. FAIR.

Posted by: D.A. Ridgely | May 3, 2005 1:42:57 PM


Posted by: Achillea

Frankly, in a country where 'Elimidate,' 'Who Wants to Marry a Millionaire,' and 'The Bachelor' are popular shows, the phrase "sanctity of marriage" causes me to utter most unladylike snorts of derision. What sanctity is he talking about? Much as I would like to consider marriage some kind of ennobled state of being (despite, or perhaps due to being single myself), I've seen no evidence that that's the case.
And what business does the state have in sanctifying anything?

Also ... while I would find the ratification of the FMA, where the ERA failed, to be a rather damning idictment of the land of the free, amendments are not the end of the world. If they were, we'd still be a dry country.

Posted by: Achillea | May 3, 2005 1:44:12 PM


Posted by: Bret

Achillea, I didn't find marriage in and of itself to be anything all that special. Indeed, I can't imagine why anyone would want to be married if they weren't going to have kids.

But once a couple of kids were added to the mix - well, then maybe sanctity does describe the family unit for some (at least for me) - your mileage may vary, of course.

Posted by: Bret | May 3, 2005 1:52:08 PM


Posted by: Tad Brennan

Tom--

Oh, I don't mind your references to "legal fictions", as long as you don't mind giving me all of your legal fictions with pictures of presidents engraved on them. Yup, govt's at the state and federal level are legal fictions, just like money, and like money they come to pack a hell of a wallop.

No, what I'm still puzzled about is why you don't think a reservation of powers to the states grants them some rights, or near enough.

Say the federal govt. writes a law saying that no state may recognize SSM, and then the Idaho legislature, in a burst of perverse states'-rights defiance, passes a law recognizing gay marriages. (A good example of how perverseness is different from perversion).

As we try to figure out the next moves, how much does it matter whether we say that Idaho had the "power" to make that law, or that it had the "right" to make that law? I'm not seeing it.

Nonetheless, if you prefer, I can go back and rewrite my earlier post about how McClellan's despicable evasion about the amendment process completely betrays the principles of states'-*powers*.

Posted by: Tad Brennan | May 3, 2005 1:54:44 PM


Posted by: ya hozna

Yee haw! Itz Texass Tom Perkins.

Although one might argue that the state/mental health people might be involved in assessing people for breeding/cohab. status, another libertarian argument is preventing any legal recognition of any marriage--hetero or homo. No tax benefits, no perqs. That seems the default equitable policy.

I may be mistaken but the people crying about queer marriage (the word "gay" not only silly and colloquial but pejorative) are typically the biblethumpers. Perhaps there are some catholics or muslims or secularists opposed, but generally it's yr typical dixie redneck moron (there's lot of'em in Cal as well.) The sight of two leather boys getting hitched may be nauseating to some of us but why should anyone have the right to object to it? Neither real liberals or libertarians have any legitimate grounds for objecting. It's only the theists, who think they have some scriptural grounds for this--its part of their theocratic if not fascist agenda to put their strange Dixie Protestant beulah land into effect.

There are indications that Jefferson, under influence of Paine and the French republicans, considered for a time a much stronger Establishment clause which would have forbade any Church whatsoever. Had that been the case this discussion would not be occurring.

Posted by: ya hozna | May 3, 2005 1:56:02 PM


Posted by: Tom Perkins

AlanC9, I do care what he thinks about somethings. Some things I don't. As long I'm not prepared for literal civil war in this country (and so far I'm not, although I'm pretty sanguine about it), I don't want for a few pissant justices from deepest, darkest Outer Bluestatia to give a big push towards setting it off by ruling (via the probable Supreme Court interpretation of the "full faith and credit" clause), that if one state recognizes GM, they all must, and in a way perfectly co-equal to hetero marriage. You know what I would like to, a divorce from ecclesiastical marriage and cohabitation civil contract law. I'd also like to see the legal system have specialties the way M.D.'s do, and I'd like a toilet made out of solid gold.

Don is complaining that in some nebulous fashion that not all three of Bush's reasons to oppose GM are perfectly congruent with each other, and I am pointing out that they don't need to be congruent with each other, in fact it would be contrary his real goals, whatever they are for him to drop any of the three. It seems he prefers his President pennywise and pound foolish.

1) Is an excellent argument to make. Something so fundamental to society should be settled in a way agreed to or at least tolerated by a very large majority, and if it is to be merely tolerated--it should be big chunks of population tolerating other big chunks of population, not 50% or more of the people seething in anger at five or six lawyers in robes.

2) With large chunks of the judiciary seeming to be in favor of GM and large chunks of the populace opposing it, case law in this area is not enough to assure people of what the robed (Wiz.o.OZ reference) men behind the curtain will tell Hobbe's Leviathan to do. Hence the state level amendments.

3) See my hammer vs. saw analogy.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 1:59:37 PM


Posted by: Tad Brennan

Bret--

I'd go even further and say that even prior to adding kids into the mix, my marriage was an ennobling state, i.e. made me a better and less ignoble person than before. (Course, there was plenty of room for improvment.)

When it works, marriage really can make people better than they were--feel better, live better, act better. That's why I think it is about time that all citizens had access to the benefits of marriage with the person of their choice.

Posted by: Tad Brennan | May 3, 2005 2:00:24 PM


Posted by: Tom Perkins

Ya Hozna manages to say a probably true thing:

"Had that been the case this discussion would not be occurring."

Of course, that's because the country wouldn't have happened either...

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 2:03:16 PM


Posted by: Tom Perkins

Tad, get your fingers off those legal fictions, or you'll get stumps back. Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 3, 2005 2:06:34 PM


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