Same-sex marriage in California: the trap closes?

Somehow a majority vote against SSM will have led directly to the near-permanent entrenchment of it

Don’t look now, but a twist has materialized in the legal epic of same-sex marriage in California. When U.S. District Court Judge Vaughn Walker struck down the statute implementing the anti-SSM Proposition 8, even sophisticated observers began imagining the familiar capillary process whereby a quarrel migrates upward through increasingly mighty appellate courts.

But wait! Remember what the style of cause was in this lawsuit? That’s right: Perry v. Schwarzenegger.

The plaintiffs were two gays and two lesbians seeking California marriage licenses. The defendants were state officials obeying the dictates of Prop 8, as unwilling legislative automata, from the Governator on down. Those officials have no intention of appealing Walker’s ruling. Indeed, they barely presented a defence of “themselves” in the first place. The advocates of Proposition 8, whose clumsy evidence Judge Walker treated like a speed-bag in his decision, weren’t parties to the suit and didn’t ask to be. They were mere intervenors. So how can they obtain standing to appeal?

This wrinkle didn’t come to the attention of the general-interest press (or to me) until yesterday, when Walker addressed it in his handling of a request for a stay of his decision. The rule is that federal appeal courts, under Article III of the Constitution, can only hear legitimate, non-hypothetical “cases” and “controversies”. This means that intervenors and other observers have to meet a high standard in order to take a decision to U.S. Circuit Court without the aid of one of the original parties—aid that will certainly not be forthcoming in this instance.

Traditionally, in order to gain standing, non-parties have to show that they have suffered a concrete, specific injury as a result of the decision being appealed. Justice Ruth Bader Ginsburg pointed out in 1997 that “An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III.” In no case that reached the U.S. Supreme Court has this happened.

The strangest quirk of all is this: the issue that will decide the feasibility of an appeal by private citizens advocating Prop 8 seems like the same one that came before Judge Walker in the first place. Namely, does the existence of same-sex marriage cause meaningful harm to anybody? Judge Walker, having found that it does not, is naturally skeptical of the intervenors’ ability to proceed. But what’s going to happen if the 9th Circuit turns those intervenors away? Is it quite fair for the judiciary as a class, having thwarted California’s voters, to say “Judge Walker’s ruling that gay marriage doesn’t hurt anybody is impervious to appeal on technical grounds, because gay marriage doesn’t hurt anybody”?

Me, I’m no bleeding-heart small-D democrat. But to the opponents of gay marriage, and perhaps even to unpersuaded moderates, this might seem like sharp dealing. It is one thing for the judiciary to block the will of the majority: hey, welcome to the U.S.A., tenderfoot. This, however, is a case where the judiciary may not only end up obstructing the volonté générale, but elbowing it good and hard in the vitals. Somehow, in California, a majority vote against same-sex marriage will have led directly to the near-permanent entrenchment of same-sex marriage.

This sort of counterintuitive outcome could surely lead to a backlash outside California. Who knows?—it might even create the impetus for an anti-SSM affort at constitutional amendment. The Democratic character of the Congress is a poor assurance of safety for the five (shortly to be six) states which have full, legal gay marriage. That institution still has never won a referendum in the U.S.; its win-loss record stands at 0-31. And the Defense of Marriage Act, which denies nationwide constitutional “full faith and credit” to same-sex marriages, was opposed by just 14 Senators and 67 Representatives not so long ago (1996).

Time and history are on the side of gay marriage. (This is especially true if it represents some sort of fatal Spenglerian decadence.) But it is unclear just how much of each will be needed.

Same-sex marriage in California: the trap closes?

  1. 1. Aren't you being rather harsh on the judiciary "as a class" for "thwarting" the will of the majority of Californians voting for Prop 8? After all, as you admit, it's the State of California–under the dual action of a republican governor and a democratic attorney general–that is refusing to appeal. These two are, in fact, the elected representatives of the people, and they are the ones legally charged with the decision to make an appeal (or not to appeal) Walker's ruling on the Proposition 8 suit.
    2. Your statement that "The advocates of Proposition 8 . . . weren't parties to the suit and didn't ask to be. They were mere intervenors." is a confusing gloss about what actually happened. To be admitted to the trial as intervenors, the advocates of Proposition 8 had to request, and then receive, special permission from the district court–i.e., they literally had to "ask to be" parties to the suit.
    3. Unless you're writing about Rousseau, please avoid terms like "the volonté générale." Maybe you consider a constitutional amendment adopted by a 52%-48% split of the electorate to represent such a thing, but frankly, I find such a claim dubious.

    • On point number two, I'm not sure that's correct. I don't think they asked to be made parties to the suit, I think they asked to be made intervenors. They argued "their side" of the case, sure, but Cosh seems to be explaining that they were never actually made parties to the suit. Intervenors make arguments in a case they are not directly involved in. Whether or not intervenors in a case like this then have standing to make an appeal of the ruling (having never actually been parties to the original suit) would seem to be an open question.

    • An amendment to the constitution adopted by initiative in a republic is an action by the sovereign people to prevent the state-level elected representatives from taking certain actions. Any legal process which allows representatives in a republic to undermine a limit upon themselves by refusing to defend it is illegitimate, as it is in explicit defiance of the sovereign authority of the state.

      This would not be a fatal defect in Canada; Canada is a monarchy constituted under British law, with sovereignty vested in the king-in-parliament. It is a fatal defect in a republic; any citizen of California must naturally have standing to defend the constitution of California in court, or the republican character of the government is fraudulent.

    • Quote: under the dual action of a republican governor and a democratic attorney general
      Answer: The 'governator' mistakingly endorsed a homosexual child rapist and therefore he should be PRECLUDED from 'weighing in' on ANY propositions made by ANYONE. Imho.

  2. Same sex marriage opponents overreached in 2004. They probably could have scraped together support for a Marriage Federalism Amendment — I might even have backed it.

    But not a national ban. Couldn't even get 50 votes for it then; certainly not now.

    • Gay marriage opponents should have pushed to get the state out of marriage altogether (existing marriages and the rights and privileges held therein could still exist as legal contracts between individual). Such a position would have been legally sustainable and difficult for gay marriage advocates to overturn.

      • I don't follow – are you saying that anti-SSM types should have pushed for:

        1) Marriage to disappear altogether except as sanctioned by a church, or

        2) The state to limit itself to issuing contracts equivalent to what we currently call marriage?

        Or a third possibility I haven't thought of?

        • Number 2. Replace "marriage" (in the legal sense) of all types with civil unions, and extend civil unions to gay couples. If the status quo was that everybody had civil unions (and, for legal purposes, there was no such thing as "marriage"), it would eliminate the scope for court challenges. It would also place the debate over what marriage is in the private sphere where it belongs – as a moral debate between individuals, not as a legal-constitutional debate that gay marriage opponents are likely to lose.

          • Largely that's the way it should be anyway.

            The only reason marriage had the legal qualities that it did was because society was following canon law, not secular law from either our Roman or Anglo-Saxon forebearers.

        • I think he means #2. Like Alberta does through Civil Unions.

          However, that hasn't really worked in Alberta to quiet the issue, and I think part of the reason why is because the state still recognizes marriages as a separate entity. They have exactly the same rights and responsibilities as civil unions, but the term is still restricted.

          And either the term has meaning or it doesn't. If it doesn't have meaning, then it shouldn't matter who gets it. If it does have meaning, then we shouldn't discriminate who's able to get it based on sexual orientation any more than we should on race.

          • But "civil" unions DON'T have exactly the same rights and responsibilities as marriage in the U.S. Heck, in about 18 States, they've either passed laws or changed their Constitutions to ensure they never will have the same r&rs.

            Sadly, Mr. Cosh evaded the issue of whether or not it was Constitutional to vote on the rights of one minority group in the first place. Either ALL citizens are created equal (and should be treated that way) or they are not. So much for liberty and the pursuit of happiness. So much for justice for ALL.

      • Could have. I wouldn't have backed it, tho'. My parents have different religious backgrounds, and therefore a civil marriage.

        I would not have backed anything that changes that status. Civil marriage for gays is much simpler and less invasive.

  3. The only sure long-term consequence of this series of events will be all sides' seething resentment of one another.

    • I don't know. I think once gay couples win, they might be able to proclaim "bygones".

  4. "Is it quite fair for the judiciary as a class, having thwarted California's voters, to say “Judge Walker's ruling that gay marriage doesn't hurt anybody is impervious to appeal on technical grounds, because gay marriage doesn't hurt anybody”?"

    But the absence of tangible injury is the characteristic weakness of the anti-SSM forces. As much as it may cause howls of outrage, what is Walker supposed to do? He's a judge, not a kindergarten teacher, it's not his job to indulge the feelings of the people in front of him.

    • "Absence of tangible injury is the characteristic weakness of the anti-SSM forces"

      I'm amazed at the staying power of this canard. If I follow the "reasoning" correctly, it distills to "it doesn't harm Doug and Susan that Bill and John want to get married, so why not let them?". So why stop at marriage? I've always considered Colby to be the literary son I never had – why can't he and I compel the rest of you to redefine "fatherhood" to include our relationship – where's the tangible injury to you? Indeed, why limit any consanguine relationship to its traditional parameters, in the absence of proving "tangible injury" will result by removal of such limits.

      "it's not his job to indulge the feelings of the people in front of him."

      As was the case in Canada a decade ago when we were engage in the throes of our own SSM debate, it was (and is) open to California SS partners to enter into a "marriage" contract that created a legal relationship essentially identical to that of married hetero couples. The few and inconsequential "rights" SS partners didn't have that married couples did could have been extended to them without fundamentally altering a centuries old bedrock social institution. As far as I'm aware, there has never been a scintilla of hard evidence tendered by SSM advocates as to actual tangible "discrimination" (being denied a job/place to live/service in a restaurant) attributable to SS partners being excluded from the traditional definition of "marriage". So the case for SSM pretty much boils down to the "feelings" of a few SS partners that theirs is a "lesser" relationship and Judge Walker, like many before, did nothing BUT "indulge the feelings of the people in front of him" in coming to his (to quote the great David Warren) "prolix, amateur hour" decision.

      • Did/does California have civil unions equal to marriage and available to same sex couples? If not, then it was about more than just "feelings" and more than "inconsequential rights." Smart anti-SSM legislators should be getting in front of this, allowing civil unions that are equal-in-all-ways-to-marriage-except-name under the law if they don't want to lose on this in the end.

        • Those civil unions were *only* available to same-sex couples. Judge Walker talks about it in his ruling.

      • "why can't he and I compel the rest of you to redefine "fatherhood" to include our relationship?"

        I think that's called "adoption".

        • It is, and while there's no tangible injury to you or I should "Great Walls of Fire" wish to adopt Mr. Cosh, presumably it could be argued that that WOULD cause tangible harm to Mr. Cosh's actual father.

          • Not to mention Mr. Cosh himself! Sounds like Father Walls is the type to maintain a tight curfew.

        • No it isn't, you cannot adopt an adult.

      • I think it's not quite correct to say that it'sTHE legal argument, as the poster seems to be posting, although it's a strong policy consideration.

        Legally, there's a right to equality under the law, which is the operative factor. The fact it doesn't harm anyone is part of the reason there's no reason to prevent exercising the right to equality. While the lack of harm is definitely important, the right to equality is the operative pre-requisite. You are somewhat correct in the broad sense of "if no harm is the only reason, why isn't x, x, and x allowed?". it's just that "no harm" is only part of it.

      • "If I follow the "reasoning" correctly, it distills to "it doesn't harm Doug and Susan that Bill and John want to get married, so why not let them?""

        Or, more to the point, how do you justify preventing their marriage? You haven't described any harm that will befall hetero marriages, so Walker's judgment is unchallenged.

        "As far as I'm aware, there has never been a scintilla of hard evidence tendered by SSM advocates as to actual tangible "discrimination"…"

        Go look. There's ample evidence of very real harm caused by the refusal to allow SSM.

        This case is about tangible harm stemming from discrimination versus hurt feelings caused by the elimination of this discrimination.

        • "Go look. There's ample evidence of very real harm caused by the refusal to allow SSM. "

          Look where exactly? How about a link instead – shouldn't be too hard, given how ample the evidence. BTW,
          hurt feelings" don't count as "real harm".

          • Tax codes would be a good place to start. Shared deductions, income splitting for seniors, transferred diability credits, all requiring a marriage certificate to partake of.

            I don't give a damn about "hurt feelings" either, but tax laws represent real, tangible harm.

          • Here's a link: http://google.com

            "BTW, hurt feelings" don't count as "real harm"."

            Sorry if my sentence wasn't clear: my point is that gay people are suffering real harm as a result of this discrimination (see the link I provided). If we eliminate this discrimination, married straight people won't suffer any harm more tangible than hurt feelings.

            That was Walker's point as well, and it made his decision pretty damn straightforward.

          • Insurance agencies, including auto insurance, will generally provide better rates for couples who are married as opposed to co-habitating.
            Mortgage and loan applications are also far easier for married couples than for unmarried.

            Marriage implies a level of commitment that the legal niceties created, such as Civil Unions in Alberta, do not do as of yet. Perhaps by the next generation that will change, but right now marriage is still marriage, and it is the only thing that is equivalent to it.

          • Sure, but if the institution of marriage doesn't have the same social effects that it once did, a lot of the benefits to getting married in the private sector will largely vanish. The divorce rate has already done this already, and gay marriages are even more unstable than modern hetero marriages.

          • Got any evidence to that last statement?

          • Allow me to add to the lsit: estate rights, rights of same sex partners to have a say over their partners health when the partner cannot speak for themselves.

          • The discriminations described above, as well as in the linked article, are all capable of remediation via private contract, statutory amendment and/or judicial fiat. Using our home and native land as an example, by the time Harper submitted the marriage reference question to our SC, the only marriage right SS couples didn't have was the right to divorce. Whatever discrimination might still slip through the cracks, deconstructing marriage as a means to address it is the equivalent of killing a gnat with a nuclear bomb.

          • But it would take years and ungodly amounts of work to systematically undo every special consideration, form, process, questionnaire, tax law, actuarial accommodation and advantage for married people.

            A simple, low-effort fix is to simply allow people to marry whomever they choose. Voila, instant equality.

            Update: and some of those special considerations make sense: if my spouse is dying, it makes perfect sense that I should make end-of-life decisions. Insurance companies (presumably) have actuarial evidence to support their favourable rates for married people. Criminal law probably should (in some cases) treat spouses differently than other people. What you're proposing is to eliminate all these practical implications of the institution of marriage. I think that would cause far more harm to society than enabling SSM.

          • So Mr. Evidence, what evidence can you put forward to support your dramatic prose suggesting that allowing same sex couples to wed spells the deconstruction of marriage? We've had same sex marriage in Canada for 5 years now and in some provinces for up to 8 years. What has been the monumental impact on society? on marriage? on heterosexuals? on anybody or anything?

            The examples listed here of the harm brought upon same sex couples by their exclusion from marriage are only part of the equation. More important still is the psychological harm of being excluded from an important social institution because society hates gays so much that some people–like you–will do ANYTHING…rewrite other laws and what have you…to avoid having to share marriage rights with gays.

            The psychological damage of "separate but equal" regimes was demonstrated in the 1960s during the Brown v. the Board of Education case that desegregated US schools. It didn't matter whether black schools were as good as or better than white schools. Black children were still damaged by the knowledge that they were so hated that they were not welcome in white schools.

            Thanks to this case, the judiciary, at least, understands that there is no such thing as "separate but equal."

      • While there is no injury to those outside the relationship, those denied the right to marry DID suffer tangible harm, as they were not granted access to programs and legal / financial arrangements that were granted as a matter of course to "traditional" spouses. SSM advocates were able to demonstrate clear, tangible, financial damage; anti-SSM folks cannot make the same claim.

        • While I think social conservatives are wrong on this one, there may be cases where our emphasis on tangible harm results in bad policies. The conservative concern with gay marriage is pretty clear: they believe that the strength of America depends on the strength of one institution – the nuclear family. When norms that run counter to the nuclear family are enshrined into law, they may weaken that institution. Legal definitions can indeed form basic reference points for people. Moreover, one can hypothetically think of potential harms stemming from the weakening of the nuclear family over time (I think extended families are a superior model myself).

          • I think everyone agrees that extended families are a superior model, which is why I doubt you'd have any complaints from us socons about extending legal rights and benefits that recognize the role of the extended family.

      • Of course you have to redefine "fatherhood" and "motherhood" in terms of same-sex marriage.

        Being a father is a gender-specific role. Either you have to eliminate the father's rights over his own child, or you have to eliminate the mother's rights. Blood is not going to be an indissoluble bond anymore. The liberals tried to bring legislation to do this very thing.

        The state is largely going to determine who the parent is from now on.

        • Huh.. and here I thought we were getting away from the idea of rights being based on your gender, and yet you seem to want to bring it back.

      • I thought the right to marry was established when the mixed marriage ban was struck down.

  5. I have a question: once the US recognizes same sex marriage (which I think they will do, sooner or later, with a few religious, cantankerous and decidedly unfabulous hold outs), what's next on the equality agenda?

    Racial equality? check. Women's equality? check. Same-sex equality? check.

    Who is left, then? Or, what real equality issues are left with the above groups? Any theories?

    • The Glen Becks and Sean Hannitys and Tea Parties of the US would suggest white men are next.

      But I think the next colossol fight is shaping up to be over immigration and the rights of non-citizens inside the US.

      • That's a good bet, I think. Particularly topical in light of the MV Sun Sea and the debate around Canada being a 'soft target'.

    • Decriminalization of polygamous marriage – which I strongly support. If the right circumstances arise, fleshing out the support and property rights at the end of polygamous relationships.

      • I'm also all for decriminalization of polygamy, as I see no logical basis for it, on precisely the same grounds I see no logical basis for prohibiting same sex marriage. I'm not sure what 'discrete and insular' minority is currently being discriminated against, as unlike homosexuality, one isn't born a polygamist. Maybe discrimination on the basis of religion and culture, but I don't find that terribly compelling.

        • I also suspect religious reasons would be the only way to bring a Charter challenge. As stated recently, it'[s doubtful the right to polygamous marriage could be sustained by the Charter, but I would think eliminating criminal penalties would be quite likely.

          • it'[s doubtful the right to polygamous marriage could be sustained by the Charter

            Would you care to elaborate – not that I disagree, I'm just curious as to your basis for this.

          • In Re: Same Sex marriage the religious groups trying to PERFORM gay marriages and saying it was an affrong to their freedom of religion to not have them recognized were denied. And the cases which examine
            the exact nature of marriage to determine if the right to equality is being violated focus on the exclusivity of a gay partnership.

            In short, gay marriage was probably the worst thing that could happen to those hoping for polygomous marriage.

          • In short, gay marriage was probably the worst thing that could happen to those hoping for polygomous marriage.

            Gay marriage puts a lie to the notion that there is any 'traditional definition' of marriage that the state should uphold. Is there some reason why the number two is more fundamental to 'marriage' than the gender of the participants?

          • The cases that considered the matter found it pretty integral.

            The "why not us too?" argument tends to be pretty weak, legally speaking, unless it can be backed up with something more.

          • The cases that considered the matter found it pretty integral.

            And the SCOTUS majority that found laws against sodomy unconstitutional professed over and over that their ruling would not affect the definition of marriage. But, as Scalia rightly pointed out, finding a right to the latter flowed logically from the former.

          • is that supposed to be a counterargument?

          • Yes, let me be more clear. Courts often claim that the expansiveness of their rulings are limited (don't worry, citizenry!) by certain exogenous factors, only to, in future rulings, ignore those factors (because they make no sense in the first place) and rely on the actual ratio in expanding the reach of the original ruling.

          • I tend not to be very well informed regarding US law, but there's a world of legal difference here in Canada between sending someone to jail for an activity and conferring legal benefits on that activity. Maybe you could say people became gradually more aware of the need for equaltiy over time, from decriminalization to acceptance, but that's a social argument not a legal one.

            I know you tend to think law is random and capricious, but a far more accurate depiction would be a body which develops over time in certain directions. Absolute reversals can happen but they are the exception rather than the rule. In Canada, the indications are that the law is growing towards a rejecting of an absolute right to poly-marriage. Pointing out "yeah but sometimes some things are different" isn't very persuasive.

          • I know you tend to think law is random and capricious

            Well actually, I think my argument may have been premised on the opposite assumption – that courts will follow the logical core of past rulings, and not allow factors that aren't central to that core obscure the principles they're trying to promote or obstruct the development of the law in line with those principles. Saying that 'monogamy' is an absolutely core feature of marriage strikes me as about as accurate as saying that 'opposite-gender' is, even if society is presently more willing to accept the latter deviation from 'traditional' marriage.

            In Canada, the indications are that the law is growing towards a rejecting of an absolute right to poly-marriage .Pointing out "yeah but sometimes some things are different" isn't very persuasive.

            Nor is gainsaying very persuasive. I'm disputing that the 'indications' lead to the conclusion you've drawn, but I'm open to be proven wrong.

          • They were set out pretty clearly, though.

          • Freedom of association? I mean, as a constitutional argument, it isn't any weaker than the justification of gender equality to recognize same-sex marriage. If the constitution is a living document and can be interpreted however you wish, then certainly it isn't beyond expectation that you couldn't find something to challenge the ban on polygamy, and for a judiciary to approve the interpretation.

            I agree btw, that the state doesn't really have any business restricting polygamous marriages if the harm principle is the only thing that matters. After all, you could always go after the things arising from polygamy that are harmful, such as domestic abuse, forcible confinement, abandoning fiduciary responsibilities towards male children, etc. etc.

          • I would posit that freedom of association is far, far weaker a legal argument then the concept of analogous grounds. Like, orders of magnitude weaker.

            I would bet large sums of money that were it to be brought before a court a freedom of association argument would be found to be laughably wanting. In fact, if MacLeans would be willing to hold the money, are there any takers? I'd like to start using my time here to make some $ from credulous socons.

          • Well sure, but I doubt anyone thought that analogous grounds would pave the way for gay marriage in 1985.

            By 2035, who knows?

          • Svend Robinson and Jean Chretien acknowledged the possibility before the concept of analagous grounds even existed.

            Again, does anybody have an actual LEGAL argument in favour of poly-marriage that would stand up to the indirect case law against it? The "yeah but sometimes things change" business is tiresome.

          • See, I could have sworn that I read that Jean Chretien didn't expect this outcome, but he approved of the notion that the constitution was a living document.

            Can't find it though, so I'll readily concede that I might not know what I'm talking about.

          • Here's your legal argument: We have freedom of religion in this country, which is defined broadly. One has the right to engage in a practice that they sincerely believe is "function of his or her spiritual faith". Polygamy undoubtedly would qualify as a religious practice protected by s. 2(a) of the Charter, and criminalizing polygamy violates that Charter protection. Similarly, the failure of the government to define marriage to accomodate these sincerely believed in religious practices constitutes adverse effects discrimination on the basis of their religion – although the definition is neutral on its face, it confers a disadvantage on those individuals whose sincerely believe polygamy is a function of their religion, violating s.15.

            The government can limit the application of ss. 2(a) and 15(1) where such limitations are reasonably justified in a free and democratic society. The burden shifts to you.

          • But as Mike pointed out, that didn't work for gay marriage advocates.

            It would be an argument for decriminalizing gay marriage, but not for the state to recognize it.

          • er, polygamous marriage.

          • Did you by chance read the second half of the first paragraph?

          • Yes, but certain churches in Toronto also made that same argument, that their recognition of same-sex marriages was an essential part of their religious practice.

          • That their recognition of same-sex marriages was an essential part of their religious practice? Or that forcing them to solemnize same sex marriages would be contrary to their religious practice?

            I think one of us here is very confused, and I hope it's you.

          • It isn't me.

            The Metropolitan Community Church in Toronto challenged in court the right to extend the rights of marriage to same-sex couples in 2001.

          • I was really hoping it was you.

            But yes, fair enough. I would say, however, that there's a difference between not giving legal effect to a religious practice, and saying that an individual who partakes in a religious practice should be equally recognized. It's hair splitting, but I think there's a difference. Also, the Court tends to shift with popular opinion, so the case may have simply been 'too far' for the Courts – it may still be, but not necessarily so.

          • It could be possible that distinction might make Re same sex marriage inapplicable, but I think its more likely the other way. Maybe someday it will all get decided.

          • No, but it's a much harder legal case. In the case of same sex marriage, gay couples were able to argue that they were being discriminated against based on their sexual orientation. The Egan case in 1995 had already established that sexual orientation rights were protected by the Charter and that same sex relationships were also protected because same sex relationships are as essential a characteristic of homosexuality as say pregnancy is of being female. Thus, it wasn't hard to argue that the denial of same sex marriage was a denial of equality rights. Those advocating legally recognized polygamous marriages (as opposed to simply an end to criminal prosecution of polygamy, which is easy to argue for) would need to first establish that they are either a member of a marginalized community that is protected by the Charter of rights or that they are a member of a persecuted class of people that SHOULD be interpreted as being protected by the Charter. Then they would need to argue that their need to marry multiple partners is an essential characteristic of their protected class of people. Finally, they would need to get around all the possible government options for defending 2-person marriage as the sort of reasonable limit on rights and freedoms permitted by the Charter. The government could argue, quite reasonably, that it does not have the financial means to extend the benefits of marriage to multiple partners, nor does it have the administrative resources to manage such marriages. It would be a pretty tough legal battle. As I recall, I think it was the Law Commission of Canada that once did an extensive report on legal recognition for non-traditional families. It didn't consider polygamy specifically, but many of its proposed provisions for blended families could by used by polygamous or polyamourous families to protect their relationships without imposing an added financial burden on the government.

        • One basis for a polygamy ban is power-dynamic. Polygamy is almost always about one man and many (usually young) women. And it is almost always based around some sort of weird power dynamic – cult leaders tend to be polygamous, etc.

          • Power dynamics aren't illegal, or many 'traditional' marriages would be null and void.

          • Not true. Polygamy, as practiced by certain churches, is intensely oppressive to women. Polygamy (polyamory) is also practiced throughout our society by progressive people who wish to escape the shackles of traditional heterosexual marriage. If you haven't noticed, you obviously haven't been getting out enough. :-)

          • Not just Mormon offshoots are polygamous. There are lots of muslim, etc. polygamous marriages quietly in place in Canada. The National Post ran a series on it in 2003 or 2004. Some of them were healthy.

        • " I see no logical basis for prohibiting same sex marriage."

          I have absolutely no problem with it from a moral standpoint, but I'm not sure we'd able to cope with the numerous rights and obligations of legal status inheritance, responsibility to children, etc., that are created by a marriage.

          I'm not saying the issues are insurmountable – heck, there's probably some smart cookie who's spelled out how it can work. But I'm not sure how we could easily take a legal relationship based on two parties and expand that into multiples. In that particular sense, it's not quite the same logical gimme as same-sex marriage is.

          • I see your point, although one usually one doesn't assess the justice of a given extention of rights based on the administrative burden involved or complexity of the arrangements. But yes, not the slam dunk same-sex marriage is, from a practical/administrative standpoint.

          • Again this is completely separate from my moral assessment, but I expect one could more successfully argue that a polygamous marriage is a completely different sort of institution, and as such there's no discrimination in not recognizing it. That's not to stop legislators from creating a new definition of marriage, or simply a new category of recognized legal relationship. But I think it's usually easier to convince the courts that certain individuals are being unfairly denied something that already exists (monogamous marriage unions) than to convince them to order the creation of new institutions.

            (Just to be clear to anyone reading this, I'm not against polygamous marriage. Having one spouse has already taught me a world of things about my poor taste in clothing, insensitivity, propensity to buy useless items, inability to "really listen", and aesthetic shortcomings that mean I cannot be trusted with selecting even the appropriate napkins for a dinner setting – much less things like paint colour or broadloom. I can only imagine the insights and self-improvement I'd realize with additional wives.)

          • Right, but it all depends on how you define what 'exists' currently. If you define it as 'monogomous marriage unions', then the argument is more difficult, but if you define what exists presently as 'marriage unions between individuals who are in love with one another, want to spend their lives together, share burdens and successes, etc.' than it becomes easier.

            That was key to gay marriage – marriage was defined as 'between two people', not 'between two people of the opposite sex '- unless you can provide an argument as to why the specific number of individuals involved is somehow more essential to the term 'marriage' than opposite sexedness (?) is.

          • "unless you can provide an argument as to why the specific number of individuals involved is somehow more essential…"

            Inheritance issues, powers-of-attorney situations, rights and responsibilities with regard to children, rules and practices around divorce, have all been not just legally defined but practically implemented throughout society on the basis of a two person marriage. It might be arguable that some of these cannot be easily expanded to collective marriages without creating a qualitatively different institution.

          • Again, I consider all of those to be derivative of marriage as an institution, not foundational to it, and many of those issues are premised on the assumption that a given marriage will fail. I think they're administrative issues, not unimportant ones mind you, but the Courts tend to take a rather dim view of pratical reasons for limiting the exercise of rights (were a law limiting marriage to two people found to limit the rights of polygamists, of course), particularly reasons that aren't the necessary consequence of those rights.

          • You realize we're not too far away from deciding that marriage ought to be done away with as a legal institution? :)

          • This is where I actually sit. Marriage, as a legal institution, is simply a matter of administrative convenience. One can reasonably ask, "Why does the state get the final word in who I choose to share my life/support with — who I can have visit me in the hospital, who my estate naturally flows to, etc." Anything that marriage provides, legally, can either be adequately provided by contract or affadavit, and if it can't (such as certain marriage specific tax deductions) it becomes reasonable to ask why does such a thing exist?

          • You think the oil lobby is powerful? Good luck taking on the bridal industry.

          • You can still have marriage. It just becomes a matter of concern between private citizens again.

          • I've often said that government should get out of the marriage business because a domestic contract would be more flexible in providing legal obligations (and protections) for families, including ones that are non-sexual.

            Why shouldn't there be equivalent rights to spousal rights if a mother and daughter are raising the kid because the Dad buggered off?

          • Legally speaking, marriage has always been a property contract, nothing more. That's why the state is involved.

            All the rest of it is just church window-dressing around a legal fact.

          • But why does the state need to be involved at all? I can have contracts with other people without the state needing to provide their seal of approval. Why are these ones different?

          • Cohabitation is more efficient than living alone, and the state may have an interest in encouraging people to form institutions that are well-suited to child-rearing (namely, families).

          • If they truly thought that, they would allow income splitting so that single income families are more viable.

          • The courts take a dim view of administrative matters up to the point where government spending is involved. At that point, they're quite a bit more deferential to government. In the case of something like polygamous marriage, there would have to be a damn good reason to justify the massive increase in government pay-outs for things like spousal pensions and EI payments for spousal relocation. I don't see a case anywhere near strong enough in favour of polygamous marriage that would be enough to overcome the government's potential section 1 defences.

          • See my response above.

          • AJR – thanks, good read. The point is, that's a s.1 argument – it's not an argument that there's no discrimination prima facie, which is what I was arguing, just that the discrimination is justified. It's not an argument that 'two' is more inherent in the term marriage than 'opposite-sex', but rather that the distinction is necessary for public policy reasons. And the author may be right – it's complex. But I've addressed at least some of the concerns above, in responding to MTB.

          • But then did you read some of the posts? I think personally it is a terrible practice but then the other side has a story too.

          • I've learned to like hardwood floors, and off-purple colour patterns. Who knew?

          • Apparently, perfectly serviceable duvet covers ought to be periodically changed out for a new colour scheme, lest one live as a savage.

          • "from a practical/administrative standpoint", It's nowhere near. One could not specify what forms the relationships could take, and so property rights, inheritance rights, coverage under insurance policies, etc would be impossible to manage and the court and legislative costs would put a severe burden on the majority in order to meet the demands of a small minority. Arguably, such a tangle would practically DEMAND the use of the notwithstanding clause, if some judge were to find that not allowing polygamous marriages to be a Charter breach, just to avoid the financial and legal impact of such a decision. Unlike SSM, recognizing polygamous marriages does not extend same rights to others; it creates a whole new paradigm.

          • That would be certainly be an argument against. The difficulty in rearranging property and other attendant rights could be indicative that the two institutions are so different that equailty isn't being denied by not allowing poly-unions.

            But I doubt it's a slam dunk on that point by itself, and you're certainly right the "problem" could be practically avoided by careful drafting.

        • It's my gut feeling that there are some harms involved in polygamy which aren't present in SSM.

          For instance if there are way more single men then women – a natural consequence of polygamy- I believe crime rates will trend higher.

          • My polygamy includes polyandry.

          • Are you saying that you think that the single man/woman ratio wouldn't change much?

            As a matter of biological imparative, I would think that more men then women, would be interested in multiple spouses. Also men control more wealth, with which to support these spouses. In my mind that means a surplus of single men, which I don't think will be healthy for society. The whole idea leaves me uneasy.

          • Meh, it's not as if guys keeping mistresses doesn't skew the balance, as things stand.

            On a more serious note, in any society that's had polygamy (and yes, polygyny is the overwhelming majority in those cases), it's never really been all that common, and generally something only the very rich could afford to do. I don't see it having deep demographic consequences.

          • The mistesses can work double duty. ;)

            Seriously thou, you may be right about it not being common. I'm just saying there is a much stronger case to be made against polygamy, then SSM. It has the potential to do actual harm, where SSM does not.

            It's an idea that I'd have to give a lot more scrutiny to, before accepting it as a given right.

    • Perhaps a battle to uphold equality… freedoms surrounding religion are facing emotionally-charged challenges across the nation.

      • Maybe, but if my assessment of the zeitgeist is any indication, I think religion has kinda lost that one.

    • Atheists.

      • Do elaborate, Emily. This ought to be rich.

        • Secular society, humanists, atheism….call it what you will.

          Freedom FROM religion.

          So we can move forward.

          • Right, I know what atheists are. I meant, how are people currently not free from religion?

          • You must be a religious person. You accept all the religion in your everyday life without even noticing it.

            Much of our 'culture' revolves around relgion…from foreign policy, to these 'belief' tussles the US is always going through.

            In the US, in spite of the constitution, in many places atheists can't run for office. Offhand I don't know of any Canadian politicians who are openly atheist either.

            Oz is in shock that their PM is not only female but atheist…and she likely won't be around for long.

            It's only recently that atheists have begun to come out of the closet.

          • Atheists can run for office, but they can't force people to vote for them, if that's what your notion of equality requires.

            Frankly, I feel dumb for asking.

          • No, in some places in the US they can't run for office. It's in state constitutions.

            Not to mention that most people who run for office are simply assumed to be religious, and if they say they aren't they are then subjected to attacks on that point alone.

          • North Carolina's State Constitution, Article 6 Section 8
            "Disqualifications of office. The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God."

            Texas' State Constitution, Article 1 Section 4
            "No religious test shall ever be required as a qualification to any office, or public trust, in this State; nor shall any one be excluded from holding office on account of his religious sentiments, provided he acknowledge the existence of a Supreme Being."

            (Of course, I'm pretty sure these sections are ignored in practice, and atheists are free to run for office in these states).

          • As long as the candidate is assumed to be religious they are safe. No one has really challenged those 'rules' as yet

          • Don't pray,
            don't tell.

          • Obeying both of your commands already… oops, just blew the second one, I guess…

          • The wording of the Texan one allows you to acknowledge yourself as a Supreme Being, that of course being the reason why you feel people should vote for you.

          • Oh, is that the only reason non-religious types would run for office?

            Eye roll

          • For once I'm with you Emily

          • No, in some places in the US they can't run for office. It's in state constitutions.

            Those clauses were rendered unconstitutional, and you probably know this, and are being dishonest. And again, equality doesn't subject one immune from political attacks or the conscience of voters.

            And I officially give up.

          • They haven't even been challenged yet.

            The whole point is that the conscience of SOME voters doesn't determine how the whole society should live.

            Separation of church and state. We need it in both Canada and the US.

          • Julia Gillard = Kim Campbell?

          • Yeah, probably be a 'summer job' for her too, just to give lip service to the idea they've had a female PM.

          • How about paying some taxes?

          • The irony of course Emily, is that people who think like you actually being in charge of making laws (and enforcing them) is the best way for the religious groups to gain power and influence that I can think of.

          • No, it's the best argument to continue with the process of moving to a secular society, and getting rid of religion in govt.

            Reason and rationalism are always better than faith and force.

          • See, already I'm feeling slightly more Catholic just from reading that.

          • LOL riiiiiight.

        • Everybody hold on to something.

          • LOL no, I don't intend to get into any war about it on here. He asked what the next step was and I told him.

    • They seem to have a bit of a problem with immigrants…

    • I agree with others who've said non-citizens/immigration etc. But on the gender front, there are bound court challenges regarding transexual issues. I can't think of a concrete one at the moment, but suspect that's a few years down the road.

    • As for equality-type issues: I'll plunk down ten bucks on Incestuous Unions/Marriages between Consenting Adults, if you're starting a pool. Stick another ten on Age equality, while you're at it (not necessarily for marriage – though I predict that will be part of it, too.)

  6. “You can always count on Americans to do the right thing – after they've tried everything else.”

    Winston Churchill

  7. Geez…..tell them to look North.

    Gay marriage may be anethema to the God-group, but c'mon……

    if you're a dude and don't want to marry another dude….then don't do it.

    If you're a chick and don't want to marry another chick….then don't do it.

    Otherwise, mind your own business.

    • But… but… won't somebody think of the children?!?

      :)

      • That was actually how the anti-SSM campaigned.

        However, witnesses at the trial showed there was no difference in outcomes for children raised by same-sex or opposite-sex parents.

    • I'm sincerely delighted to have the opportunity to agree with you today. (Must be Friday the 13th!)

    • What is the common good provided by same-sex unions that makes it worthwhile for the state to formally recognize them?

      If people want to have sex, that's their business and no one else's. But if people want the state to formally approve of their sexual relationships, that's everyone's business.

      • Since when is marriage all about sex?

        • There are enough grumbles out there that the question maybe should read: Since when is marriage EVER about sex?

        • All about sex? As in only about sex? Since never. I think it's pretty clear, however, that the concept of marriage has something to do with sex.

          • How sad you think so.

            Personally, *I* think marriage has to do with commitment — something which is far bigger than, and may (or may not.. depending on the committed) have to do with sex.

          • If you've never consummated a marriage, it is null and void, so I think it definitely has something to do with sex.

            If the conception of marriage doesn't include sex, it becomes a ceremony where you agree to be "Best Friends Forever".

          • So you're going to tell seniors who get married and choose not to have sex that their marriage is null and void? Wow.. didn't realize you were such a… oh never mind, I expect you've been called worse anyway.

      • Sorry I think I misunderstood upon the first reading.

        Judge Walker found in his ruling that: "[s]ame-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions. Like opposite-sex couples, same-sex couples have happy, satisfying relationships and form deep emotional bonds and strong commitments to their partners. Standardized measures of relationship satisfaction, relationship adjustment and love to do not differ depending on whether a couple is same-sex or opposite-sex" (p. 77, para. 48).

        So I would ask, why wouldn't the state formally recognize them?

        But also it's quite clear from the testimony that marriage is greater than the sum of its parts, socio-culturally and economically.

        And he makes it clear from the very beginning that: "[m]arriage in the United States has always been a civil matter." and not a religious one.

        • So the common good that the state is trying to encourage is "relationship satisfaction"?

          Since when is it the state's business to uphold that?

          • If the state is to be involved in the marriage game, it is presumably because married couples are an institution conducive to effective child-rearing. That said, even the alternate justification of state involvement in marriage does not necessarily preclude gay marriage. Gay couples can be just as effective as parents as straight couples.

          • Judge Walker says otherwise:

            "Marriage is the state recognition and approval of a couple's choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents"

            He didn't mention child-rearing at all as part of the definition for civil marriage.

            I'm assuming that Gaunilon believes that the common good deriving from heterosexual marriages is child-rearing. But if a SSM can create an environment in which a child can be brought up just as successfully, and many studies have shown this to be true, then there's no reason to deny marriage to homosexuals.

          • "and to join in an economic partnership and support one another and any DEPENDENTS"

            This doesn't sound like it is primarily about child-rearing to you (I guess taking care of old people is also part of it)?

          • Sorry what i meant is – procreation is absent from the definition of marriage.

          • So you're right.

          • 'I'm assuming that Gaunilon believes that the common good deriving from heterosexual marriages is procreation' – is what I meant.

            Ugh, it's getting late.

          • I don't think the case procreation as justification for marriage is all that strong because:
            A. there are ways gay couples can produce kids
            B. if the government wanted to encourage procreation, a child tax credit or other pro-natalist policies would be more effective

            My preferences are:
            Gov't out of marriage altogether > gay + straight marriage > just straight marriage

          • If the goal was procreation, marriage would be irrelevant. People will have sex and procreate regardless of marriage (or at least that was the case before widespread artificial contraception, and marriage long predates artificial contraception).

            The goal- and the reason the state should be involved – is to get fathers to stick around and help the mothers raise their children. It's a matter of protecting women and children from predatory and irresponsible men.

            Reducing it to a matter of whim and convenience with no-fault divorce pretty much ruined it in terms of that goal. Then making it merely a seal of approval for one's sexual relationship ruined whatever shreds were left. Now the only question is how ridiculous it will become before it gets dropped altogether.

          • Then it sounds like no-fault divorce (and child custody laws that systematically favour women) are the problem, not gay marriage*. Presumably both straight AND gay families/couples would benefit from better rules of dissolution. And it does not seem to me that Justice Walker's decision excludes child-rearing as being intrinsic to marriage.

            *Unless your argument is that children raised by a father and mother are better off. In that case you would have an argument that uniquely favours straight marriage (although one I am not empirically convinced of).

          • PS: it looks like New York just switched to a no-fault model, so you will have a good case study there.

          • I have 3 heterosexual married sisters. One of them had no children in either of her 2 marriages. Yet she is still considered married.

            Stop confusing the institution of marriage with the completely separate institution of parenthood.

            Reproduction is not now nor has ever been a requirement of marriage.

          • Since they extended it to heterosexuals.

            Duh.

  8. Colby has a point. If a single judge makes a ruling that thwarts the will of the result of a referendum, there must be a way to appeal. Why hold the referendum in the first place?

    The fact is, if what Cosh says is true, the original case should not have been against state officials in the first place. If it truly was "state officials obeying the dictates of Prop 8, as unwilling legislative automata, from the Governator on down", then the defendents should have been the people of California as a whole, represented by state officials. In reality, the entire electorate has standing in the case if the law was enacted by a referendum.

    • Indeed, why hold a referendum with a question that could violate the constitution? It wasn't "one judge" who overturned the will of the people, it was the judicary that pointed out the will of the people violates the constitution of their country. Just because the majority of people who voted didn't understand that, doesn't make it less true. The choice it seems will not be whether gay people should have the right to marrige. It is whether the American people want to change their constitution to take away a right that it probably enshrined in the constitution, but hasn't been demanded until recently.

    • This 'will of the people' was and is demonstrably UN-Constitutional. The Constitution's very job is to protect minorities from the tyrrany of the majority. There should not have been a vote on other people's rights in the first place – a fact Colby simply ignores.

    • Cosh ignores/evades the fact that voting on the rights of a minority was UN-Constitutional in the first place. This 'will of the people' is nothing more than the tyranny of the majority – which is what the Constitution is there to protect minorities from.

  9. Such a target rich environment, but so little time…

    "The advocates of Proposition 8, whose clumsy evidence Judge Walker treated like a speed-bag in his decision, weren't parties to the suit and didn't ask to be."

    At least they presented evidence. Judge Walker preferred to follow in the footsteps of his judicial brethern up here and essentially take "judicial note" that gays are akin to Jim Crow – era blacks, etc. when deciding the legal constraint on being able to "divorce" (that being the only aspect of "marriage" SSM partners didn't have prior to Prop*) warranted thwarting the democratically expressed wishes of a majority of California voters.

    "Racial equality? check. Women's equality? check. Same-sex equality? check.

    Who is left, then? Or, what real equality issues are left with the above groups? Any theories?"

    Well, polygamy's pretty much dead in the water, but there's still incest and pedophilia and bestiality and necrophilia and gosh knows what else! I eagerly look forward to the substantive and cogent explanations as to how ludicrous is the suggestion "rulings" like that of Judge Walker will be utilized to advance these causes.

    "But… but… won't somebody think of the children?!? :)"

    In the brave new world our judicial pharisees have thrust us into, which unquestionably is a factor in the plummeting birth rate in western democracies, I suspect thoughts of children is all we'll soon have.

    • My gawd, are you folks still peddling that line? LOL

    • Well, polygamy's pretty much dead in the water, but there's still incest and pedophilia and bestiality and necrophilia and gosh knows what else! I eagerly look forward to the substantive and cogent explanations as to how ludicrous is the suggestion "rulings" like that of Judge Walker will be utilized to advance these causes.

      Yea, Scalia peddled this line in Lawrence, and I think it makes no sense whatsoever. The problem with prohibitions on gay marriage (or sodomy, as in Lawrence) are that they are only based on prevailing conceptions of morality – there is no other justificaiton. Where as there are demonstrable reasons, other than what certain people find 'icky', to prohibit the other actions you cite.

      • Bountiful BC is still alive and well, while the legal case against polygamy is dead.

    • At least they presented evidence.

      You really didn't follow the case much, did you? The biggest complaint about the anti-SSM side is the absolute PAUCITY of evidence they presented. They barely called any witnesses at all.

      Now, from my point of view, what "evidence" they could have presented could have been pretty easily dismissed, but honestly, it seemed at times as if they weren't even TRYING.

      • Not to mention they actually tried to prevent one of their own evidentiary witnesses from testifying. That's how weak their case was.

      • "The biggest complaint about the anti-SSM side is the absolute PAUCITY of evidence they presented. They barely called any witnesses at all."

        I will admit to knowing not much about the subtleties of California constitutional law, but I'd be surprised if the defendants (i.e. the party arguing in court that the proposition was valid) were required to produce ANY evidence at all – the onus to prove the case rested with the plaintiffs and it is not at all uncommon for (esp.) government defendants to conclude the plaintiffs have failed to meet the onus and it's not necessary to counter their case by presenting their own evidence.

        Furthermore, it's not surprising the anti-SSM side presented an "absolute paucity" of evidence – that would be a natural consequence of having to prove a negative, i.e. that no substantive discrimination is attributable to maintaining the traditional concept of marriage as an exclusive heterosexual institution. It's also my understandng the plaintiff "evidence" Judge Walker found so compelling was essentially in the form of plaintiff "expert opinion", which, especially in the context of "rights" litigation, I don't find to be particularly compelling. Put another way, if (as clearly occurred here), the way to win a SSM case is to bombard the court with "expert opinion" about the role traditional marriage has or has not played in the evolution of western democratic society, there is unlikely to be a similar "paucity" of evidence the next go round.

        • Since you're enamored of the word PAUCITY, perhaps you'd present the evidence supporting your argument that homosexuality and polygamy exist on an axis with bestiality, necrophilia, and child abuse, and lead in their direction.

          • Referencing the noted sexual proclivities was a response to the query "where will the rights fetishists turn next?". If you read carefully, you'll realize I wasn't equating homosexuality with those proclivities – rather, I was inviting one or more of the legion of SSM supporters excitedly tapping out their comments to offer up a cogent argument as to why it is an impossibility that the same reasoning the likes of Judge Walker find so compelling could ever be employed by persons seeking to advance the legal cause of polygamy, etc.

          • How about "Because there are negative social externalities, ones specifiable with absurd ease and enormous confidence, attaching to things such as necrophilia and even polygamy; whereas there is no good evidence of any such effect from same-sex marriage"? You could have provided this answer for yourself if you had read the decision in Perry.

          • You shouldn't talk to your pretend father like that. Go to your pretend room!

          • C'mon, Colb – the mother of all "negative social externalities" – SS partners are incapable of the sort of unaided procreation that, until "marriage" was judically stripped of anything to do with having and raising children – wasn't even a small speed bump in the race to SSM. It's increasingly looking like they won't amount to diddly squat in the quest toward legalizing "Big Love". What makes you think they'd amount to anything more for the next proclivity group staging up in the starting gates?

            Let's consider incest, for example. In this brave new world of a fully mapped human genome and easily and cheaply performed genetic testing, what "negative social externalities" remain to justify the retention of the ole' prohibition against marrying your sister? And with 15 year old Miley Cyrus cavorting about like a stripper while I wait to watch the weather on the 6 o'clock news and Bruce Jenner's 14 year old stepdaughter showing off her "assets" in the latest People magazine, what "negative social externality" should bar Larry King from picking # 8 from the cast of "Toddlers and Tiaras"?

            You're someone whose demonstrated a fondness for analyzing odds and percentages and the like: what sort of wager are you prepared to make that judicial expansion of the concept of "basic human right" that beyond those rights contemplated during the constitutional process that begat our Charter has now ended?

          • It's the old "If incest/necrophilia/bestiality were legal, I'd immediately run out and have sex with my sister, a corpse, and a dog" argument. Out of curiosity, which one do you think you'd target first?

          • Well, I did say I considered you the literary son I never had – should be easy filling in the blanks from there. Nice ad hominem by the way – glad to see the fancy stint with Macleans hasn't gentrified you completely.

            BTW, I find it curious you made your clever little "trap" case without referencing the following:
            http://www.nationalreview.com/bench-memos/243216/

          • There was nothing ad hominem in what I wrote. You literally asked what, other than mere force of law and technical questions of genetics, prevents one from marrying one's sister. I must tell you that this is not a question most of us find hard to answer, but you've been candid about considering it an unsolvable brainteaser, an airtight conundrum well worth keeping one awake nights. I do regret that we can't solicit your sister's opinion, or for that matter your dog's.

          • Colby, are you implying that people who engage in non-standard sex acts are perverts? I mean, there has been incest, bestiality, and polygamy since the beginning of time. It is also a part of the sexual practices in nature.

            Any potential for physical pain or emotional harm that is done engaging in these acts can be managed. People have pointed out that we don't restrict marriage from those who can't have children, so we shouldn't withhold it from homosexuals. We don't prevent people with Huntington's disease (or other serious genetic illnesses) from getting married and having children, so why do we deny marriage to incestuous couples? Bestiality is no worse form of animal abuse than eating them or dressing them up in outfits, so why do we make that illegal? Polygamy is also a matter for many consenting adults, so why should we get in the way of that? If there is abuse of any sort extending from a polygamous marriage, we can deal with the abuse rather than get all hung up on who is married to who. There are many factors that would lead to the oppression and abuse of a spouse or family, and we don't restrict the right to get married in those situations.

            Now, I wouldn't engage in these sexual practices myself, but I'm large minded enough to see that there is a need for legal consistency, and I am dispassionate enough to get past my "ick" factor. Just because something sticks in your craw, there is no reason to intrude on other people's rights to happiness.

          • That's an awful lot of words predicated on various completely unwarranted assumptions about my position on seven or eight distinct issues. But let me point out that as soon as you're talking about admitting and "managing" economically externalized harm from permitting certain forms of civil union, you are rocketing beyond the argument for same-sex marriage in Perry v. Schwarzenegger. Judge Walker's reasoning patently does NOT imply the liberalization of incest, polygamy, bestiality, or necrophilia.

          • I'll grant you that Walker's specific decision doesn't.

          • "Any potential for physical pain or emotional harm that is done engaging in these acts can be managed."

            You seem to ignore consent. Animals cannot give legal consent. I'm sure your dog must be greatly disappointed.

            Why do so many idjits on the 'right' wanna marry their dog anyway?

          • "You literally asked what, other than mere force of law and technical questions of genetics, prevents one from marrying one's sister."

            That must have been my evil twin. What I asked for was for a cogent argument as to why Justice Walker's decision and others before his will not lead to further redefinition of marriage. What is it about homosexual relationships that warrants the fundamental alteration of the fabric of society that doesn't apply to other relationships still left out of the increasingly "big tent" of marriage".

            "this is not a question most of us find hard to answer"

            Then answer it – I'll help. Is it the "ick" factor? If so, I'll remind you you're well old enough to recall how the same factor, no more than 15 or 20 years ago, made it the suggestion there'd some day be SSM even more outrageous. Is it because it goes against "human nature" to sexually desire one's sibling, such that there will never be the necessary "critical mass" of aspiring sib-spouses to bring about such fundamental change? If so, I'd invite you to check the stats on the number of SS couples that have actually tied the knot since its been made legal – "critical mass" doesn't seem to count for much when you're doing the important work of expanding "rights".

          • "SS partners are incapable of the sort of unaided procreation that, until "marriage" was judically stripped of anything to do with having and raising children"

            Yadda yadda. Procreation is not now and never has been a requirement of marriage.

            "Let's consider incest"

            Let's not. Marriage serves to establish kinship where none exist prior. Incest involves people who are already kin, so the incestuous have no need of marriage.

            DO BETTER!

        • I would encourage you to read the actual decision. It's fascinating reading.

  10. Who cares about the U.S. I don't care if they don't public health insurance and I don't care if oil leaks all over their beaches, and I don't care if same sex marriage isn't allowed. And if this offends you, I would point out that Americans couldn't care less about Canada. The only thing that matters to me is that they don't start any more stupid wars.

    • Well, that oil could reach our beaches. And what if all the gays move to Canada. Can we handle that level of fabulousness? I say we cannot!

      • I don't know, we're already pretty fabulous.

        I think we'd handle it fabulously.

    • Why would you read this article then?

      California is right in the title.

  11. Americans, relative to Canadians, tend to place a high value on democratic legitimacy, and a low value on judicial legitimacy. As a result decisions that were made in the courts continue to be debated domestically in the United States but not Canada. For instance, Roe v. Wade produced one of the most persistent cleavages in American politics. In contrast, only a small minority in Canada seek to overturn the Morgenthaler ruling. This cannot be explained by Canadians being more liberal than Americans, either. Most Canadians are unaware that Canada has no abortion laws, and I expect one could find strong support for some abortion law (eg. limiting abortions after the third trimester).

    While I think the legal reasoning here is sensible – constitutions exist in part to protect minorities from tyranny of the majority – I expect its political impact will be pernicious. It will allow gay marriage opponents to wear the mantle of "democracy", which has a lot more cache than "constitutional liberty". This will also accentuate existing cleavages in American politics around an issue where compromise is unlikely to occur. An earlier poster asked what the next great progressive crusade* is, to which I suggest that making sure gay marriage is accepted and sticks will be crusade enough.

    *My guess would be animal rights (a cause which I heartily oppose). I also suspect that at some point in my lifetime, eating meat will be about as socially acceptable as smoking is today.

    • If California doesn't like gay marriage it should change it's constitution or be quiet. The correct process for the government or public who doesn't like the way the court interprets a law is to alter that law, not to scream judicial activism.

      • If California doesn't like gay marriage it should change it's constitution or be quiet

        Huh? You do understand that this isn't an option, right? If I'm not mistaken, the court ruled that the California constitutional provision prohibiting gay marriage was unconstitutional. They did change their constitution, and the court said they couldn't.

        • I guess change the bill of rights or whatever constitutional force allows for equality of law, then.

        • I think he meant the federal constitution, which, like in Canada, has a specific formula for how that can occur. Single state 50% +1 referendum isn't it.

    • limiting abortions after the third trimester

      I strongly support limiting post-birth abortions. I'm traditional like that… :)

      • Not everybody is.

      • They're still a fetus in the third trimester:
        1st trimester (0-12 weeks)
        2nd trimester (13-28 weeks)
        3rd trimester (29 weeks – birth)

        • Right, I was just joking. You said after the third trimester, which ends at birth. So limiting abortions after the third trimester would be limiting abortions after birth. See where I was going with that?

        • Don't worry, not all of us are as observant as Olaf.

          Yes, I believe that 3rd trimester restrictions would gain wide support. Which Party will have the stones to play with that dynamite?

          None of them do, and it would be bad politics to try.

    • Eating meat will be the "new smoking" only if scientific hypotheses about the dangers of animal trans fat leading to mental illness, Alzheimer's disease, cancer, and the like, are borne out in the evidence. As it stands now, however, eating meat is far less energy efficient than eating straight from the ground. I believe you only capture 10% of 10% of the energy originally contained within vegetation consumed.

      It won't be because of "animal rights," anyway. I think most people understand the evolutionary significance of eating meat and don't really regard it as immoral, but they may turn their minds to the fact of its energetic inefficience, potential health risks, and abstain in that regard.

      • I disagree that objective health risks are what killed smoking (although it was important). What was critical about smoking was not just that it was unheallthy, but that classy people stopped smoking. Part of how smoking got popular in the first place was through appeals to class aspiration. When smoking became the habit of the working classes, it began to lose ground.

        This is why certain other behaviors are less likely to be proscribed. For instance, drinkers, on average, earn 10-12% more than abstainers. So while excessive drinking is unhealthy, it is not likely to be a target. Vegetarianism – despite no real health argument – will become increasingly popular because the kind of people that become vegetarians (educated professionals) are the sort of people many aspire to be associated with. From Victorian values, to prohibition to recycling, the upper middle class has long been at the vanguard of proscribing behavior.

        • I appreciate your comment, I'm just not sure how it addresses mine. Meat can never become a class issue as people of all classes indulge –now and then — regardless of what is en vogue. The science will help bolster the fashion of vegetarianism, not because of any issue of "class."

    • "Americans, relative to Canadians, tend to place a high value on democratic legitimacy"

      There's nothing "democratic" OR 'legitimate' in voting on other people's rights.

  12. "Somehow, in California, a majority vote against same-sex marriage will have led directly to the near-permanent entrenchment of same-sex marriage."

    What was the voter turnout like in CA on this one? Does anyone know?

    • 13,743,177 votes according to Wikipedia, 7,001,084 in favour of Prop 8, 6,401,482 opposed.

      Wikipedia says that's 79.42% turnout, which is impressive, but that's the percentage turnout of REGISTERED voters. The actual "Statement of Vote" from the Secretary of State does note that 79.4% number, but also that the percentage turnout of ELIGIBLE voters, was 59.22%.

      • Still… 59% for the US is pretty high.

        • 2008 was a pretty historic election.

          Wikipedia has NATIONAL turnout in 2008 at between 61.7% and 63% depending upon how one crunches the numbers. Either way, Obama vs. McCain produced the highest voter turnout since the 1960s. So, California was a tiny bit below the national average in turnout.

          Interesting note: In California, both the "Yes on Prop 8" and the "No on Prop 8" sides got more votes than John McCain, who received 5,011,781 votes.

          • There was a theory that the increased turnout of black and hispanic voters were instrumental to Prop 8's success. Was that proven or disproven with the analysis?

          • That I don't know, and it would probably be harder to find than the first two bits I tracked down really fast (i.e., not going to go looking myself at the moment :-)).

            I do believe that black and Hispanic voters would, statistically, tend towards the anti-SSM side of the argument, so superficially it makes sense that an abnormally high turnout of those voters might have some effect on the numbers, making support of Prop. 8 higher, but I don't know if anyone has analyzed whether this was actually a factor or not, and if so, if it actually was a factor that helped the pro-Pro. 8 crowd.

          • We can assess that question using the exit polls.

            % Yes Vote/% of electorate, by race
            White: 49%/63%
            Asian: 49%/6%
            Latino: 53%/18%
            Black: 70%/10%
            Other: 51%/3%

            So lets envision a scenario where turnout, by race, was equal to 2000 levels (2000 makes more sense than 2004 because 2004 also had high voter turnout at levels quite close to those in 2008).

            2000 turnout (from Voter News Service)
            White: 66.65%
            Black: 9.61%
            Latino: 15.75%
            Asian: 6.07%
            Other: 1.91%

            So applying 2000 level voter turnout, and the same voting patterns by race, you would get:
            Yes: 51.63%
            No: 48.37%

            Increased voter turnout by minorities did not result in the passage of prop 8.

          • Thanks, a nice concise answer.

            Of course, given that it was information gained by voluntary means, it's obviously useless.

            (Sorry I couldn't resist).

    • What I'd like to know is who removed my post…

  13. "This sort of counterintuitive outcome could surely lead to a backlash outside California. Who knows?—it might even create the impetus for an anti-SSM affort at constitutional amendment."

    Possibly but I firmly believe that the rights of the minority should not be left to whims of the majority via a referendum. Had we done that in the past, some hard-earned civil rights wouldn't have come to pass.

    That's what laws are for.

  14. I certainly think Mr. Cosh is on to something with this initiating an anti-SSM constitutional amendment. With apologies to Talleyrand & duc d'Enghien, the good & hard elbowing in the vitals could very well turn out to be worse than any crime – it could be a mistake.

    An election in 11 weeks? The epic deleveraging of the economy continuing? A seething electorate? I could easily see King Vaughn's proclamations being wrapped up like a newspaper & swatted against the noses of a sufficient number of state & federal legislators.

  15. What bothers me about the SSM debate is the way people so easily segue from negative rights (rights to be free from state coercion) into positive "rights" (claims demanding state action). The issue is not about gathering family and friends together to mark by ceremony a same sex relationship and then having the state's agents crash and shut the ceremony down. It is about demanding that the state's agents give their stamp of approval. It's about getting the state IN to life as opposed to OUT, in other words. Sociologically, it is not about a right to deviate, but the "right" to be mainstreamed. The latter should be a matter for democratic vote, if the courts are to leave any room for legislatures at all.

    • The logic of giving equal benefit of the law can be tricky, but (a) no one really denies that equality before the law is a legitimate guiding ideal, and (b) in the Perry case the issue was very strictly confined to the simple issue of whether same-sex couples can have marriage licenses; all parties agreed that no other actual entitlements were at stake. So couldn't you have written the above paragraph about Loving v. Virginia?

    • Explain why betterosexuals' relationships get "the state's … stamp of approval"?

  16. I agree that it will seem harsh for people who can't stomach gay-marriage that they will have no way to appeal the decision.
    However they will have to deal with it, justice isn't democratic. Justice isn't about majority rule, it's about justice, two very different things.
    If they want to fight it to the end, then they should try to understand law and the rule of law.
    But biggots will be biggots, you can never please them really. They'll fall back on things like "it's unnatural" and when that fails they'll try things like "the destruction of values" or "it's wrong for the children". And when they have nothing less they'll try to argue that because they are so many biggots they should have the right to impose their will on everyone esle.

    • Actually that should read "justice isn't about the rule of the majority, it's about the rule of law"

  17. And to think that only five years ago I was arguing with supporters of gay marriage that once we abandon traditional marriage, (a) legalization of polygamy and incest soon follow, and (b) marriage as a whole would then be abandoned. And was being told that I was bigoted and delusional. Slippery slope arguments never work, you know. They just lead to a complete breakdown of the dialogue.

    And to think that even before that, I was arguing with supporters of no-fault divorce that abandoning traditional marriage's lifelong commitment would lead to same-sex marriage and eventually the overthrow of marriage altogether. And was being told that I was just a reactionary religious nutjob with no compassion.

    Someone up above asked what the next Leftist crusade will be. Here's my prediction: it will become illegal to teach one's children that there is anything morally wrong with same-sex marriage or with gay sex. Then Christians will start peeling off, and the few who stick to their faith will lose their children or go to jail. After all, if opposition to gay marriage is bigotry, should children be allowed to be raised in it?

    And note: based on the California experience, it doesn't seem that the will of the public (even when it's clear at both the state and national level) will be sufficient to halt the "progress".

    • Don't forget back when you were arguing that giving civil rights to black people would eventually lead to them marrying white people!

      And don't forget back when you were arguing with supporters of giving the right to vote to women that once we abandon traditional democracy, giving the right to vote to Aboriginals (sorry, Indians) would soon follow.

      What will the next Leftist crusade be? Will there be so much "progress" that we won't even be able to beat our wives?

      • The left doesn't get to claim everything good, and disregard everything bad that their ideology has brought.

        Particularly in regards to aboriginals.

        • No, but neither does the right hold that pleasure.

          • Gentlemen, we must all realize that neither side holds any monopoly on sons of bitches.

            - C.D. Howe.

    • And now we get at the heart of the debate.
      Like almost everything life this is a struggle between forces: on one side we have the "traditional christian" values and on the other we have "modern" values. On one side we have religious faith based values and on the other a patch work of "globalized" values.

      The religious faith based values don't have their place in our western societies anymore, and this article is the greatest example of why: they simply can't stand up to a fact based, logical system. For better of for worse, humanity marches on.

      I don't think that being opposed to gay marriage makes you biggot automatically, I think the biggot is the one who can't accept change, even if he doesn't like it. The biggot is the one who can't grasp how the world changes all the time and that values, like everything else, aren't static.

      • Actually I'd like to clarify one point: when I say "can't stand up to fact-based, logical system" I don't mean that the traditional values are worse or lesser than the "modern" values.
        I just mean that in our societies evidence and facts are the defining factors when it comes to decision making. Values that are based on faith can't argue against a logic oriented system because they aren't compatible.

        I have no problem with faith based ideology, in fact I think there's a serious deficit in our societes when it comes to the value of traditions. However I won't agree with people trying to force their faith unto others, faith is personal. The institutionalisation of faith is what's wrong with religion, but then again, it's hard to fault people who agree that simply want to come together.

        • In summation:

          - Society is losing its traditional religious values, this is bad.
          - Institutionaization of religion is bad.
          - Tradition is maintainted by institutions.

          Oh, sorry… you were saying something about logic in there?

          • You really wear your user name well.

    • I guess you feel pretty stupid, eh?

    • Well, we've got a bunch of lunatics advocating decriminalization of polygamy above, so I guess anything's possible.

      • Yes, that's what I was referring to. Five years ago if you brought up legalization of polygamous or incestuous marriage, people scoffed.

        What intrigues me is this: when the issue was divorce, those opposed were heartless. When the issue was same-sex marriage, those opposed were bigots. How will they frame us on polygamy and incest? It's a hard angle from which to villainize their opponents, but I'm sure the Left will find one.

        • In the article too, is your answer for how the left will frame the debate. At least, how the left frames the debate in Germany.

          "Their supporters say they will fight until incest is no longer regarded as a criminal offence, arguing that the law is out of date. They say it harks back to the racial hygiene laws of the Third Reich and should be overturned in favour of freedom of choice and sexual determination."

          So in other words, if you are against legalizing incest, you are a Nazi.

          • Ah, well there is always that one to fall back upon, I suppose.

          • Yes, but the ultimate trump card is Josef Fritzl.

            Nobody wants to be on that guy's side.

          • At least with incest there are some cold, hard, scientific biological facts on our side. There are likely similar facts in these other debates (ssm, polygamy) but they are not so obvious, hence people can make the credible claim that there are no harmful consequences.

          • I'm also very glad that there are "cold, hard, scientific biological facts" that will help prevent the definition of marriage to include incestuous relationships.

            I'm curious though if you have any examples as to which facts would be similar in the debate against SSM.

          • Like I said, the consequences of SSM are not necessarily obvious. But it certainly means the notion of what constitutes a nuclear family has changed, and it has opened the door to unions of all sorts of varieties, such as polygamous and other. If you can redefine marriage, why stop at two men? Why not three men? It will also take a generation to discover how this affects children raised in such environments. To be honest though, I don't intend to debate SSM today. If this matter comes up in parliament or the courts again, maybe I will then.

          • Well I wont indulge you any further.

            However, I'm not sure what other way we can find out how it affects children without allowing it to happen. Thankfully, many studies to date have shown mostly positive signs, especially in the case of lesbian SSM.

            Walker was quite clear:

            "What's more, each of those benefits — facilitating order, creating a realm of intimacy, creating stable households, providing children with support structures, assigning caregivers, facilitating property ownership and incentivizing healthy behaviors — exists irrespective of the gender and sexual orientation of the married couple (pp 67-71)"

            I would say that beyond these particular "benefits" there definitely could be concerns about raising children in an environment where one gender is over-represented. Nonetheless, just like in any other family, it seems as though other family members and friends make up a large part of the child's life and essentially fill in the possible gaps that critics would be worried about.

          • I wish I could put that "well I wont indulge you any further" at the end of the comment…

        • I think they will call us authoritarian and discriminatory, just like they do when we criticize the practice of polygamy and incest in Arab and African societies. In fact, for polygamy, they will just rehash many of the same arguments they used for ssm.

  18. I would really like the slippery-slope people to please identify the many incidents of Canadians (other than those refugees in Bounty) clamouring for the right to marry more than one person, to marry their mother, to marry their sister, and to marry their pet.

    Doesn't happen.

    Did our divorce rate skyrocket? Nope.

    Did heterosexuals stop having kids or getting married? Nope (although this is an absurd argument, anyway.)

    As David Boies said, "Marriage is between a man and a woman" is nothing more than a bumper sticker. In a campaign, you can stand up and say whatever you want, without needing facts behind it. "SSM destroys marriage!" "SSM will lead to ruin!" You can lie on a podium. And you don't get cross-examined.

    The point is that a court room, not a ballot campaign, is the place where the likelihood of harm should be aired. It's calm, it's level, there are rules, and fact, not rhetoric, wins the day.

    • I think you are misrepresenting the social conservative argument. It is not a strong argument, so you shouldn't have to. The legalization of gay marriage helps enshrine a set of norms that promote an alternative way of thinking about what marriage is and what a family is (ie. something other than a nuclear family). I don't think gay marriage opponents believe that the effects of this would be instantaneous.

      Stats Canada appears to be down, but marriages per 1000 DID decline in the Netherlands after the 2001 legalization of gay marriage.

      Rate
      1998: 5.54
      1999: 5.66
      2000: 5.53
      2001: 4.97
      2002: 5.2
      2003: 4.86
      2004: 4.44
      2005: 4.36
      2006: 4.35
      2007: 4.34
      2008: 4.5
      2009: 4.41

      (http://epp.eurostat.ec.europa.eu/portal/page/portal/population/data/main_tables)

      Obviously it is a stretch to attribute this drop directly to the legalization of same-sex marriage without a causal mechanism. So how about changing attitudes towards family. Lets compare 1999 (pre-legalization) with 2006 on two questions that capture elements of people's attitudes towards family (ie. traditional vs. non-traditional).

      "Woman as a single parent"
      1999 Approve: 49.8%
      2006 Approve: 58.7%

      Homosexuality
      1999 always: 47.6%
      2006 always justifiable: 40.9%

      So I will grant that it does not appear that there was a massive change in attitudes in the Netherlands, following gay marriage. Interestingly tolerance for homosexuality actually declined. That said, having a longer time period would be helpful.

  19. It will be a shame if this doesn't go up to the SC. I think it would win, even with the current composition..

    • The Supreme Court will most likely try to avoid having to deal with this. And if they do, they will have no choice but to support the stricking down of prop 8 because it's unconstitutional, there's no way around it.

      • Actually, now that I think about it, the US Supreme Court isn't what it used to be, they might actually find a way to rationalize something unconstitutional.
        Hell they think that a corporation is entitled to the same rights as an individual. The judges on there are absolutely nuts!

  20. Why not let gays suffer with the rest of us? Marriage is not this great fairytale that people make it and if gay Americans want to suffer with the rest of us, then why not? I think the easiest way to be to buy a Dildo and forget about marriage. I am about to go through my 2nd divorce and I say lets ban all marriages to prevent anyone from suffering the same fate

  21. Having read every comment regarding this article, I must say that the level of civility shown here is in sharp contrast to what one would encounter on a similar American media website. I really enjoyed the respectful back and forth debate that occured here on such a hot button issue.

    • You call allegations of racism "respectful back and forth debate"?

    • You don't have to bash America. For uncivil insults in the comment section, just go to the Globe and Mail, or the CBC web site. Also, you can find plenty of American web sites with civility in the comments (the WSJ and NYT are two examples I can think of).

  22. "The problem for conservatives is that we do not have a framework for debate that accommodates their way of looking at the world." Maybe. More pressing for conservatives however is its inability to provide the populace with a clear distinct view of the role of government, failure essentially to provide concrete conservative policies. Yeah sure people state that conservatives are for "smaller government, less taxes, nuclear family" etc. However I know, you know, we all know that taxes have steadily increased throughout liberal democratic states since its inception (with some even arguing that they are higher now than those evil days under an absolute monarch: see Rothbard, Hoppe), government has not been "limited" to a set of conservative standards, moreover it has also, like taxes, steadily encroached on various freedom and here we are on a debate about same-sex marriage… etc.

    Socially, the public votes left. Economically, the public shifts around to center-left, to center, to center-right ideas through varying economic times. In terms of foreign policy, well, you don't see many of those around do you? Regardless, I find conservatism provides an important morale foundation for society, I for one find it prudent to "save" the definition of marriage and limit it to one man and one woman, I also believe that conservatives (if they read Rothbard or Mises) could provide a very strong economic argument. I shifted away from conservatism to neoconservatism and now I find myself denying the state all together, somewhat of an "anarcho-capitalist".

    • I have probably moved in the opposite direction. I was an anarcho-capitalist, but have grown less so over time. Three basic things challenged my anarcho-capitalism:
      1. Public goods: there are some goods that markets, by their very nature are unlikely to provide at efficient levels (where you cannot exclude others from benefiting, and where my consumption does not impact your consumption). If the gains are sufficient that they outweigh the costs of coercion, I might be willing to stomach government intervention.
      2. War and order: while arguably an extension of 1, those who beat their swords into plowshares usually end up plowing for the enemy. You need an army to defend liberty, which in turn means giving up some liberty. Nor is the best defence always defensive, particularly for a trading state with many interests abroad. Moreover, military spending alone is insufficient. Ensuring a supply of strategic resources (possibly through protectionism) is just one of many things that can be necessary for defence.
      3. Banking crises: at certain critical levels of stress you tend to get banking panics. Panics can even become self-sustaining, as they were during the Great Depression. Financial regulation, and some countercyclical policy (like the fed) may be necessary to avert the worst crises.

  23. Damn, TrueGrit beat me to the punch. I've read through the majority of the comments and am so happy to see an amazing level of civility that frankly wouldn't be found in other comment threads. It's refreshing to read up on people's various opinions and arguments without the stain of both bigoted view accusations and well… bigoted views.

    As a gay man who has been brought up by a half Roman-Catholic family and half Ukrainian Orthodox, I can sympathize with the ideals social-conservatives seek. For most of my young life, this ideal was one I cherished and hoped I would be able to one day fulfill. However, it was also one that constantly felt unattainable, mainly because I knew that if I were to be a husband to a wife with children of our own, it would be a family laced with dishonesty and major denial. An unhealthy union indeed. I'm extremely happy that I live in a society where I can be a part of a different ideal (SSM) that is no lesser than the one I was brought up to believe was the only option.

    It's excruciating to see homosexuals being beaten and put to jail in countries across the globe. To think that something so ingrained in my being, of which I had no choice, would be reason for persecution is shocking in every sense of the word. To those fighting for equality in California, I wish them the best! There's nothing more wonderful in the world than to know that as a individual/group you are accepted as an equal.

    For those of you arguing that Judges should not be rescinding decisions made by popular will, just take a look at this: http://www.fivethirtyeight.com/2010/08/opinion-on
    It's evident that popular will changes, and it is changing quickly. There's no use in postponing the inevitable.

    Once again, kudos fellow commentators!

  24. I agree that polygamy and incestuous marriage won't be the next crusdae, but I do think they are logical sequiturs since marriage ceased to be a state sanction of those sexual unions from which everyone benefits, and instead became state sanction of people's sexual fervor for each other regardless of the common good.

    I also agree that hate/equality laws will be used against the religious. As I said above, the logical move is to begin taking children from and jailing parents who teach Christianity, for Christianity is fundamentally at odds with the Left.

    I do think you're wrong about the need for conservatives to develop more sophisticated intellectual arguments (other than the universal need always to refine and improve both one's understanding and one's arguments) – rather the problem is that most citizens have never been confronted with them, since, as you point out, the media and the universities are dominated by leftists (it is inaccurate to call them "liberals"). I have often been in debates where it rapidly became clear that not only did the other party disagree (fair enough), but that the other party had never heard any the arguments I was making (and I very rarely make an original argument).

    • The CCCB will be forced to have, on their catechismal review pannel, secular members to oversee all publications to ensure that they conform with the CCRF(as similarly happened in Romania – Romanian Orthodox Church). They will be forced to break from Rome, and refound the Church in Canada as the Canadian Catholic Church, an entirely mutilated concoction of leftism and arbitrary opinion. All church property will be siezed to pay repairations to wronged rights holders, even when such rights had not yet been recognized (you see, all rights that we have already exist, even though not one soul may have yet gleaned the existance of a given right. And since all rights already exist, it is reasonable to expect compensation for rights that have historically been affronted, even when said affronted right, at time of the supposed affront, was not acknowledged to be a right that could be affronted. Ignorance is no defence under the law, even ignorance that is literally universal.)

      And least you think it improbable, might I remind you of Henry VIII.

      • Well, the CCCB broke from Rome when they issued and then failed to repudiate the Winnipeg Statement. I certainly won't miss them – they've done more harm than good to my country and to the Church here.

        None of which, of course, excuses the sort of tactics against them that you describe if and when it comes to that. I tend to think, though, that the Left would view the CCCB more as allies than as opponents, or at the very least as such inept opponents that they're best left alone to trip up the rest of us.

        • What you say is true. I suspect that there will be precious little resistance. Oh, but won't they come down hard on the bleaters of the flock, should their authority be challenged.

      • Well, hopefully we don't go down that path of reparations for laws that did not exist at the time. Sounds like the type of thing that liberals would love to do though. Extend the redistribution or wealth, not only amongst interest groups, but along timelines as well.

        • You sound like a fairly optimistic fellow in the face of opposition of clear intent, proven determination, and implacatable lust for revenge. Have you not noticed the wave of appologies for supposed ancient wrongs? My scenario is all the more plausable because it's template has already been used.

          • I'm optimistic because there is general legal standing in most democracies that ex post facto laws with criminal/penal consequences are forbidden.

            from wikipedia:
            Generally speaking, ex post facto penal laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most common law jurisdictions do not permit retroactive criminal legislation, though new precedent generally applies to events that occurred prior to the judicial decision. Ex post facto laws are expressly forbidden by the United States Constitution. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows Parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.

    • I meant that we should be making more sophisticated arguments than the average conservative politician (or supporter) makes. You are correct that there is a wealth of conservative intellectual thought that others are generally not exposed to. I think the problem is that a lot of people hold conservative ideas reflexively because that is what tends to happen with cherished, age-old values. In the short run, conservative politicians can get far more mileage out of simple assertions of the status quo. In the long run such arguments have no staying power, and they tend to polarize people. Upper middle class professionals, and those who have aspirations in that direction (I think there is a large swathe of liberal/left leaners who are primarily interested in appearing intelligent by association) align against the more reflexively conservative masses.

      • Yes, that description of the situation fits my own impression perfectly.

        • One approach might be to demonstrate empirically the problems resulting from an increasingly libertine society – with no appeals for legal change. The tendency of people opposing same-sex marriage is to focus on the preservation of traditional families as if they are a good in and of themselves. Obviously, since many others do not even share their definition of a family, that is not going to be too convincing.

          Instead, we can make a rational case that there are negative impacts flowing from the general decline of traditional institutions (religion, families, values, etc.):

          -the divorce rate has a negative impact on society (esp. the well-being of children)
          -a low birth rate causes long-term demographic problems (esp. with social security) and diminishes our intergenerational commitments
          -voluntary, and often local institutions can often provide public goods more effectively than bureaucratically planned ones
          -individuals are increasingly more alienated, disaffected and unhappy absent traditional guiding values
          -the decline of traditional institutions has reduced our social capital
          -Increasingly decadent values in the west are contributing to our relative decline vis-a-vis China/India

          • I see what you're saying, but I think you're striking at peripherals rather than the essence.

            Even if a set of principles leads to a better society, I wouldn't advocate those principles if they don't seem to be true. In other words, I'd rather have true principles with bad consequences than illusory principles with good consequences.

            So I tend to see the societal consequences as an interesting sidebar to the discussion, but ultimately the question of whether we should adopt conservative principles rests on whether they make rational sense or not compared to leftist principles.

          • There are a plurality of dimensions, surely. I can be fiscally conservative, moderately left socially, and nontheistic all at the same time.

    • I agree that polygamy and incestuous marriage won't be the next crusdae, but I do think they are logical sequiturs since marriage ceased to be a state sanction of those sexual unions from which everyone benefits, and instead became state sanction of people's sexual fervor for each other regardless of the common good.

      G, you might get a kick out of where I thought (2 years ago) this all might lead. I offer you my very first comment on these here Blog Central pages:
      http://www2.macleans.ca/2008/06/06/your-friday-mo

      • LOL!

        As an aside, in at least one country that is ahead of us on the "progressive" curve, someone has done exactly this. As I understand it Holland is also now recognizing polygamous "civil unions".

        It's like the whole world is going crazy except for you and me, MYL, and I sometimes wonder about you.

      • Funny!

    • but that the other party had never heard any the arguments I was making (and I very rarely make an original argument).

      I think that Atlas Shrugged should be required reading in school, not necessarily because I think many will agree, but because it makes arguments that many people will hear absolutely nowhere else.

    • Socons are adorable when they indulge their persecution complex, especially because it so readily allows them to engage their favourite meme (fetish?) of an enormous big brother state coming to punish (play-discipline?) them.

      I suppose we shouldn't let reason or reality interfere with their little games.

  25. Yes, I think you're right that animal rights and euthanasia are likely next on the agenda.

    I disagree about freedom from religion, mostly because there are so few atheists. I also think that atheists are often unfairly characterized as hostile to religion. Morally, atheists can share more in common with the very religious and conservative than with the typical liberal.

    Conservatives need to develop more sophisticated intellectual arguments, and find ways to debate on liberal terms

    I agree, but at the same time, when you have decided to use liberal terms to frame the debate, you have already conceded part of the argument. I'm not so sure this practice is successful.

  26. So apparently we do have some conservatives on this site.

    • thankfully

      • Agreed.

        • We few, we happy few.

          • I just joined because I was told there would be free refreshments.

          • I sided with the French during the 100 Years War. Never did like that Henry V, much. I don't think Mr. Shakespeare did either.

  27. I am Ron Branson, National J.A.I.L. Founder. The current history Re Prop 8 is that the People first passed Pop 22. The California Supreme Court overturned it. The People made it a constitutional amendment. The Federal Court overturned it.

    There is a war between the supreme law of this land and the judiciary – only one can survive. Either judicial immunity will destroy the People, or the People will prevail over judicial immunity – there can be no third alternative. The overriding problem in our country is the self-made doctrine created by judges, and for the judges, and that is the doctrine of "Judicial Immunity," which establishes "Judges can do no wrong!" In other words, judges cannot be held accountable to their Oaths of Office, the Constitution, or the laws of this land, as they are immune from lawsuit!

    This country cannot survive without subjecting of the Doctrine of "Judicial Immunity" to the findings of a People's Special Grand Jury created for that purpose. Well stated is the proverb, "No man is above the law!"

    Ron Branson
    National J.A.I.L. Commander-In-Chief
    www .jail4judges.org
    VictoryUSA @jail4judges.org

    • 'Commander-in-Chief'' – wow I'm impressed. Are you appointed or elected. Should I assume you've got Sarah Palin's endorsement?

    • As I said above… Judge Walker's decision is just a little bit ahead of the curve. So don't worry, in a few years a majority of "the People" will agree with him and we'll all be fine. Life goes on.

    • How sad that you wish to call judges to be "accountable" but not the electorate. Prop 8 was UN-Constitutional – it took away the rights of a minority.

  28. The JAIL4Judges was founded in 1995. I wrote the proposition that was filed with the California State Attorney General on Nov. 29, 1995. J.A.I.L. (Jusdicial Accountability Initiative Law) began to florish nationwide, beginning outside CA. with the State of Washington. As we took on state after state moving onward to all 50 states, we had no particular leadership. A motion was raised that we start identifying our existing leadership throughout the nation, starting with County Warden, and State JAILers-In-Chief (JICs). We still had no national leader, but nonetheless, I had gained the respect of all the leaders across the nation as the founder of the organization. It was agreed that every ship must have a single captain, and it became logical that I inherit this leadership position. (cont'd)

  29. What's more, being a born again Christian and a minister called of God, the Lord Himself told me that I was to lead this cause, and that He would cause the issue of JAIL4Judges to raddle this entire nation. I recommend visiting www. sd-jail4judges.org to view how J.A.I.L. did just this, with Chief Justices of their respective states tapping in to the ramifications of J.A.I.L. becoming amendments to the various state Constitutions. Enter JAIL4Judges into Google and see what turns up. Even U.S. Supreme Court Justice (Ret.) took me on in the media, in which I appeared in the Wall Street journal, CNN, and in the Los Angeles Times. Former Chief Justice of California wrote of me that I was out to destroy this wonderful judicial system we have here in California.

    Ron Branson
    www .jail4judges.org

    • Always nice to have a visit from an American cousin, many of whom we consider to be so special.

  30. Who voted in FAVOR of decriminalization of homosexuality ?
    Homosexuality was decriminalized WITHOUT a vote BY the people of Canada.
    A referendum in Canada should be held as to whether homosexuality should be AGAIN criminalized DUE TO the FACT no Canadians were given a CHOICE as to whether they believe homosexuals should be allowed to interact with their children such as in schools as teachers.
    Imho.

    • Harper has really energized his base.

    • Do you think that if you made gay bars/gay sex/gay literature illegal, that it would vanish? Are you that naive?

      • Quote: Disappear ? Cure ? Is that what you are saying ? There is no cure for schizophrenia or plague or influenza or etc , etc , etc. The **isolation** of people who CAN and DO do **damage** to people around them DUE TO their 'illness' is what is REQUIRED. If you have a mental patient running loose in the streets AND 'causing problems' THEN the society is required to PROTECT those who WILL come into contact WITH the sick people BY segregating these people either into jail or institutions. The high rate of mental illness and child abuse evidenced in homosexuals as opposed to heterosexuals DEMANDS those possessing this illness BE **segregated** and monitored as close as possible. Imho.

        • So in other words you think you can catch Gay. Nice one, hope you don't catch the gay!

  31. continued)So given the diversities that our species experiences, lets all cut a little slack, whether we be politicians, political analysts or just plain Joes like me and you. It doesn't matter whether we are conservative, libertarians, or religiously inclined, their life is their life and whatever they, the poor souls are going to do, they are going to it anyway compelled by another version of the same urges that drive us all to sexual activity.

    I recently found out that a highly regarded nephew was homosexual and that he is living with another young man. I admit I was shocked at first. But they are both living useful and creative lives. I don't think they really want children in their lives, whereas in another case I find that a niece has “married another woman and they are mutually raising their children and doing a good job of it.

    And whether it is part of the nature of species to self-limit or develop mitigating conditions such as disease, why don't we all just mind our own lives and, within the bounds of the community, let others work their way too. And let's stand up in the community and prevent those that would limit the freedom of these people for no reason other than their biassed world-view.

  32. this picture is actually done in poor taste….

  33. Ron Branson wrote:
    "What's more, being a born again Christian and a minister called of God, the Lord Himself told me that I was to lead this cause"

    The Lord himself told you?

    Sheesh…….I wish I had that kind of connectivity with my service. I can barely call my buddy in Peterborough if the weather is foul.

  34. The advocates of Proposition 8, whose clumsy evidence Judge Walker treated like a speed-bag in his decision, weren't parties to the suit and didn't ask to be. They were mere intervenors. So how can they obtain standing to appeal?

    That was one of the first things I thought of when I read the decision and the news that they wanted to appeal. I'm thinking there are two ways to go about it: 1. That they formally request of the defendants that they appeal the judgment. 2. That they present themselves as representatives of the Californian voters who would like to appeal the overturning of the results of their referendum.

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