In Which I Introduce Andrew Sullivan to Brown v. Board of Education

Andrew Sullivan says:

My advice to the marriage movement: educate, speak, reach out. Stop the litigating. Resist the impulse to revel in victimhood. It may be justified and I certainly know how it feels, but it doesn’t change any minds. That’s what we have to re-focus on. And that’s the only reason we have had the success we have had. Patience, diligence, charity: these are what a civil rights movement needs to stand for.

To which I reply–Why should the marriage movement stop the litigation?  Litigation is exactly an appropriate tool for seeking justice and exactly a way to educate, speak, and reach out.

Here’s the thing I don’t get about Sullivan.  If he understands the psychic importance of marriage–that being able to stand in front of an officiant and your families and vow to become one family and to have those vows recognized as legally binding by the state, how can he pooh-pooh folks taking any legal recourse they can?

Maybe lawsuits don’t change the mind of the people being litigated against, but they sure can fix things.  Why should gay people sit around and wait for bigots to change their minds in order to have their rights recognized?  That makes no sense to me.  That seems like victimhood–“Oh, well, there isn’t really anything we can do, so we might as well just try to be a good example.  Oh, poor us.”

How is taking action somehow playing the victim?  That makes no sense to me.

Listen, when you have rights that are compromised by unjust laws, you have to come into conflict with those laws in order to show their unjustness.  Sometimes you come into conflict through litigation–i.e. Brown v. Board of Education–and sometimes you come into conflict through breaking those laws–like the sit-in movements–and sometimes, if you can, you push to see those laws applied to everyone.

I think asking the courts to rule on whether the people of the State of California all have to live by the same laws is a pretty ingenious way of pressing the issue.  Or are gay people the only ones who get to have the validity of their marriages decided by strangers?

Gay Californians tried being nice, they tried educating folks, they tried pressing their case in a civil manner.  What’s wrong with now trying to get the cruel and unjust law they have to live under spread out to everyone?

If Californians don’t like folks messing around in their marriages, well, perhaps they shouldn’t mess around in other Californians’ marriages.

Edited to add: Sullivan says “And we need patience and relentlessness in explaining our lives. And how human they are. It’s not fair; we should have it all already. But we don’t. And in a democracy, that means persuasion, not fiat.”

I can only imagine if Sullivan had been blogging in the lead-up to the Civil War.  “Dear Sirs.  Can’t you see how wrong slavery is?  No?  Okay then, we’ll talk about it some more later.”

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77 thoughts on “In Which I Introduce Andrew Sullivan to Brown v. Board of Education

  1. Well, he’s British. There is no British analogy to the power of a state or national supreme court in the US to determine constitutionality. And so there’s no British analogy for the profound impact such decisions have on the national consensus. I’d say that the part he doesn’t get isn’t the marriage part, but the court part.

  2. NM, you are wise. And I think you’re right, that there’s just some profound disconnect between how we use courts and how he thinks courts should be used.

  3. Litigation is exactly an appropriate tool for seeking justice.

    OK, so let me get this straight. As a communist, you are arguing against the will of the people?

    “Screw those rubes with the majority! We’ve found a judge with a life partner who’ll side with us!”

  4. you are arguing against the will of the people?

    The will of the people was to set up a court system so that if a citizen or citizens were being wronged, they would have somewhere to turn.

  5. Yeah, there’s that whole little “petition the Government for a redress of grievances” thing in some document or other, maybe an old cocktail napkin.

  6. For some reason, this reminded me of a documentary I saw called Divorce Iranian Style. It depicted the process of Iranian women trying to obtain a divorce under the terms that the law allowed them – which were, in a nutshell, that a woman could intiate divorce if there was something “wrong” with their husbands (sterility, mental illness) but otherwise they should just pretty up and behave and entice their husbands to treat them better. But the women in the film were not having it; they kept returning to the court day after day with their children and their embarrassed husbands, shouting accusations, challenging the judge’s sentences (which literally were “go home, freshen up, try to make your husband happy”) , and basically hammering at justice until it heard them.
    Messy, yeah, and inefficient, but a whole lot more effective than waiting for the culture to come around. After all, lawmaking influences cultural attitudes on discrimination as much as the other way around.

    P.S. Exador, “will of the people” is a bit disingenuous when you’re dealing with discrimination. “Hey, the will of the people is be to deny some rights to some citizens. Screw human rights! 50+% for [banning interracial marriage, or segregated education, or limiting reproductive control] can’t be wrong!”

  7. The will of the people in this country is that the courts be available to protect the minority against the (ill) will of the majority. It’s there in any civics textbook, Ex; you could look it up.

  8. Damn straight! These same bigots have kept me from marrying my daughter for years now. We are in love, we are committed to each other, and we want the world to know. You let me know how that court case goes, and the lawyer you used, and I’m right behind you.

  9. Taking it to the courts is what resulted in Proposition 8, and likely its passing as well. Americans don’t like having what they feel should be legislative issues decided in courts.

    So you’ve lost any further court cases before you’ve begun. You can’t amend a state constitution with a state court. The best you can hope for is the Supreme Court ruling that demands all states conform, and I doubt the Supreme Court will be willing to touch it.

    So barring that, you need to return to the legislative process, and thus, Andrew Sullivan is exactly correct. You have to persuade the people, not a judge, because a judge can’t do anything more for you.

  10. Bigots?

    There are respectable reasons people oppose same-sex marriage, and there are persuasive arguments against each.

    When I moved from the SF Bay Area a few years back, I ended up in my insurance man’s anti-immigrant, anti-gay-marriage email discussion group, all 60 y/o-plus evangelicals. I decided to give them a blast of my conservative argument for same-sex marriage.

    There were six replies saying basically, Wow, you’ve really given us something to think about and no contrary arguments posted.

    The sooner you quit seeking warfare against bigots and attempt persuasion, the sooner you’ll see that people are much fairer and more open-minded than you give them credit for. Who is being close-minded here?

  11. Vadept,
    Actually, the federal Constitution and most state constitutions are written specifically to give the courts power to protect minority groups, particularly insular minorities. Human rights are not the kind of thing that are subject to popular opinion, and our system of government is set up to prevent that as much as possible.

    The silver lining of the Prop 8 is we’ve public opinion shift from a 22% margin in 2000 to a 4% margin in 2008. To get that 4% margin, Yes on 8 had to resort to gross lies and even outright intimidation, or their proposition would have failed. People ARE being persuaded, but they’re being persuaded by gay people and their allies continuing to push the issue. People will not be persuaded by gay people and their allies sitting back and doing nothing.

    And if a judge truly can do nothing for an insular minority which is having it’s rights removed, then that represents a failure of our system of government.

    Charlie,
    If you think that an entire subsection of the population is inherently inferior to you because of of some essentially superficial difference, then, yes you are a bigot. Are there bigots who are bigots because of incomplete information? Yes. Are there bigots who are otherwise decent people? Possibly. But none of that changes the fact that if you want to remove human rights from people meaning you don’t feel they are really “human,” you are in fact a bigot.

  12. You can’t amend a state constitution with a state court.

    One other thing on this. You don’t understand the case being brought before the court. You can’t challenge an amendment to the Constitution in a state court, but you most certainly can challenge the legitimacy of a ballot measure. The California Constitution doesn’t allow for the it’s to be revised by mere popular vote alone, only subtle amendments. Prop 8 essentially invalidates the equal protection clause, which many believe is a MAJOR revision to the constitution. If that’s the case then the measure was not legally placed on the ballot in the first place and is therefore non-binding. The suit doesn’t address the constitutionality of the content of Prop 8, only the constitutionality of the process by which it was enacted.

  13. Re: Brown v. Board of Education–there was this funny little thing called the 14th Amendment that happened well before Brown v. Board. The South, arguing that not only had the Amendment been shoved down their throat (that whole Reconstruction thing) but that their society required blacks and whites to be separate, took matters to court and won (Plessy v. Ferguson).

    It was only after decades of quietly trying to persuade people as well as that little matter of fighting ably in a World War, desegregation of the military, the Cold War, and the Southerners absolutely crapping the bed on separate but equal that SCOTUS decided to “restore the rights of the minority.” Even then, Brown does not say what you think it says–but I’m not going to give a history class in the comment section.

    So, to wrap this around to the Prop 8 situation–there is no Amendment in the California state constitution that the California SC can point to and say, “Nope, unconstitutional.” Indeed, if you start having the courts say, “The voters can’t amend the Constitution…” or that actually CA is ran by whichever 5 justices decide to vote on an issue, you’re probably going to end up doing a whole lot more harm than good. Notice that all the shamrocks and shenanigans of amending state constitutions didn’t start until the Mass. Supreme Court decided to make its ruling? Do you happen to remember what effect all those ballot initiatives had on the 2004 election as far as getting out the conservative vote? Now you’re wanting to, after the second more definitive rejection of gay marriage, have the California Supreme Court once again tell voters to go screw themselves? That, “Oh, we don’t like how the vote turned out, so now we’re going to basically say you shouldn’t have voted anyway”? Not a good plan, methinks, especially with regards to what it’s going to do for future voter turnout, secondary effects, rule of law.

    Your mileage obviously varies on this issue. However, I would submit it was the quiet dignity of Rosa Park, Martin Luther King, etc., etc. that did far more to change our society than Thurgood Marshall’s court victory. Well, that and the black community was able to coalesce and impart real, measurable economic damage (see Montgomery Bus Boycott) when necessary. Oh, and the willingness of a Chief Executive to deploy _armed troops_ to make it stick. From the outside looking in, it looks like you have 2 of those 3 options–I suggest you use them instead of climbing Mount Suribachi again.

  14. Hmmmm.

    Frankly I’m a fiscal conservative and I personally couldn’t give a rat’s a– about gay marriage.

    IMO I figure why should one segment of the population miss out on crazy custody battles, lifelong alimony, insane ex-partners that never seem to get the idea that they need to get a new life and of course the stunning realization that Mr./Mrs. Wonderful is a vindictive SOB in a divorce proceeding.

    At least that is how I used to feel until gay marriage proponents went to the courts.

    Here’s the deal. Any change in -laws- is irrelevant without a corresponding change in the -people and culture-. Why? Because a change in law forced by a court decision will only anger the people even more.

    IMO you face the very real probability that doing this will end up having the state constitution, and possibly even the US Constitution, forcibly amended in an irreversible process.

    *shrug* up to you folks. After all your tactics certainly have been so successful up to now.

    Right?

  15. What place does any government have recognizing a religious union based on several thousand years of tradition? When it begins conferring tax and legal privileges based upon that specific instantiation of a civil union, it is no longer equitable.

    The GLBA community is fighting the wrong battle, dragging religion and libertarians into a fight they shouldn’t be involved in. Get the government out of the religious process and simply recognize both M-F, M-M and F-F unions as just that: a contractual partnership where property and related rights and obligations are shared as a single legal entity. Fix the state laws to unlink marriage and allow the religious to not be threatened by the GLBA misappropriation of the term. By promoting the message of “getting the government out of your marriage and our partnership”, you reduce the religious opposition significantly and bring on libertarian support, pushing your coalition over the majority level.

    Welcome to the libertarian fight against governments that represent the will of only part of the population, against the liberty of the rest of us. Please support our fight as we support yours.

  16. The difference here is that public opinion IS changing on this issue. And pushing it too hard, too fast, has resulted in a backlash that has cut against that shift in public opinion.

    If the gay lobby does take a beat, and calm down a bit, ten years from now they’ll be closer to gay marriage rights than if they keep pushing the issue.

    Now, rather than simply getting a law passed to legalize gay marriage, in many states they have to overcome a constitutional amendment–the direct result of pushing too far, too fast, through the courts.

  17. The most successful civil rights movement in history followed several paths, and the theme for the litigation thread was something like, “right client, right case, right court, right time.” With all the (legitimate) criticism that the HRC has come in for, that’s clearly been their model, too, even if they get it wrong, from time to time.

    The CA case was, at least in retrospect, clearly not all of those. Timing is everything — Brown v. Board of Education was not fought in Boston’s Southie, after all, but with a very narrow case and very, very sympathetic plaintiffs, who only a bigot could hate.

    In this case, it feels like supporters of SSM seemed to vie for who it was who would create the worst soundbite (winner, by a mile: Gavin Newsome) or poster children.

    That doesn’t mean that litigation is wrong. Just that it has to be timed right to work.

    Oh: and Aunt B? Slavery (and, while I’m more than a little sympathetic to those who want SSM available for themselves and their families and friends, as I’m one of those folks who wants SSM available for family and friends, I think the comparison of a lack of recognition of SSM and slavery is absurd) wasn’t stopped by litigation. You could ask Dred Scott, if you’re in doubt.

  18. If the gay lobby does take a beat, and calm down a bit, ten years from now they’ll be closer to gay marriage rights than if they keep pushing the issue.

    So what you’re saying is that if the battered wife would just shut up and take the punches for a few years, maybe her husband will realize what he’s doing is wrong?

  19. What place does any government have recognizing a religious union based on several thousand years of tradition? When it begins conferring tax and legal privileges based upon that specific instantiation of a civil union, it is no longer equitable.

    You have your history a little backwards. In the first place, the idea that “marriage” involves only one woman and one man isn’t several thousands of years old. Several thousands of years ago, depending on which culture you’re looking at (and, to make it easier, we can restrict that to western cultures only, as the antecedents of US culture today), marriage could (according to both religious and civil laws) include three or even more partners. Men could have one or more wives of equal legal status; they could have one or more wives and one or more concubines of a status legally equal to each other but inferior to that of the wife or wives; they could have no wives but one or more concubines. And note the word “have”; in many cultures, the woman, whatever her legal status, was the man’s property.

    In the second place, in western cultures, marriage started out as a civil legal agreement, not a religiously blessed relationship. Depending on the specific culture, it was an agreement between the parties to the marriage, between the husband and the man who had previously controlled the woman or women, or between the men who controlled both/all the parties, male or female. Religious authorities had to fight long and hard even for the right to bless marriages, and the transition to regarding a religious ceremony as the marriage, and marriage as an inherently religious relationship, isn’t even a millennium old in our cultural background.

    So this isn’t an argument that works particularly well for anyone who is actually aware of the history of marriage. You might want to read some books by Goody, Duby, or Brundage and then come back.

  20. Moreover, an important part of the Protestant schism was Calvin’s contention that marriage was rightly understood as a civil (not a religious) institution, which was why most Protestant churches did not develop adjudicative bodies for marital dissolution. This understanding of marriage as a civil institution endured in both the colonial and post-revolutionary period in the US. That is post-revolutionary marriages were solemnized by a minister only after couples produced a duly witnessed and paid for civil license. (Judges or other public figures could also solemnize marriages and there’s records in every courthouse that demonstrate that this was a popular option.) Ministers who tried to marry couples without civil licenses were fined and the hapless couple could be tried for fornication if the judge thought that there was an intention to evade governmental authority over marriages.

    So, no. You’re pretty much totally wrong, historically speaking.

    Besides being utterly historically inaccurate, “but we’ve always done it this way” is a piss-poor argument for continuing any practice.

  21. Dolphin,

    Your battered wife comment, in addition to being hyperbolic, misses the point the rest of us are arguing. By going to the courts, you are doing the equivalent of pulling out a gun, shooting the bastard, and then expecting society to just accept your side of the story without question. While apparently this works in TN, in some places that would lead to the battered wife going to jail.
    Quite frankly, if you can’t see the fact that giving the courts more power (i.e., allowing a handful of judges to overturn the will of millions) isn’t a shortcut to having the entire libertarian wing of this country turn against you, you’re lost. Yeah, it sucks. Trust me, as someone whose marriage great resembles the term miscegenation and whose grandparents can tell some wonderful stories of segregation, I understand why you may think that the courts are a panacea to the social ills. However, once again, how did that turn out for you in 2004? Do you think Arizona’s amendment didn’t suddenly grow a whole bunch of support in part because of what happened in CA (as well as the pro-side reframing the issue)?

    So, yeah, rather than making crazy analogies to battered women and the civil rights movement as you go to court _again_, why not figure out ways to try and make people see that this has real human impact? Just a thought, but a little patience might ensure that not only you but thousands if not millions of homsexuals after you never have to fight this fight ever again.

    Or, hey, keep shoving stuff down people’s throat via the legal system–then enjoy life in CT, MA, NJ, and maybe CA as your opponents shut the door in every other state in the union while they have the odds and examples of state supreme courts reversing the will of the people are fresh in others’ minds. Keep taking people’s kids to gay marriage ceremonies or trying to get things passed into school’s code of ethics–then acting surprised when parents pay you back in the voting booth. Let the mayor of San Francisco tell people things are going to happen whether they like it or not–then watch as they make sure the hill you have to climb to do so grows steeper and steeper.

    Fear and ignorance are powerful poisons, but humanization, public decorum, and quiet dignity are powerful antidotes. Consider that from Plessy v. Ferguson to Brown v. Board was 58 years, to the Civil Rights Act another 6–and then come back and b*tch again about having to wait 10.

  22. Dolphin:

    If you think that an entire subsection of the population is inherently inferior to you because of of some essentially superficial difference, then, yes you are a bigot.

    Nothing I said gives a basis for this inference. Reading this and your other comments, may I tactfully suggest you resist the urge to become a spokesperson for same-sex marriage, if you’d like to see it succeed that is.

  23. Although I voted against Prop 8, I do not believe marriage should be under the control of the government. It should be a private, typically religous, matter which is left up to the discretion of the various religions and their leaders. Some will approve of and perform gay marriages while others won’t. Those who disagree with gay marriage can refuse to acknowledge it, and those gays who have been married by their own lights can ignore those who refuse to acknowledge it. The government’s only role should be the enforcement of civil contracts (effectively “civil unions”) for any consenting adults who enter into such contracts.

    As a practical matter, I do not believe the California Supreme Court will throw out this election or find ways of overturning the decision. The measure itself is a simple sentence with no wiggle room to reinterpret, and it is clearly a constitutional amendment (the argument that it’s a constitutional revision appears pretty weak to me). At least one of the justices who ruled in favor of gay marriage (in a 4-3 decision) will switch and support the validity of this vote.

    If I’m wrong and the state Supreme Court does overturn it, there will be recalls initiated against those four justices. Many voters who were against Prop 8 would nevertheless be outraged that the Court was preventing the citizens from amending the constitution. The Court dares not be too blatant in substituting personal opinions for plausible legal interpretations. And the justices know that all too well; their jobs are on the line. They have the example of Rose Bird and two other justices who were recalled in 1986 over their categorical opposition to the death penalty (based purely on their personal philosophies).

    What is much more likely to happen is a counter-initiative, targeted for the 2010 or 2012 general election, which would repeal Prop 8. And it will probably pass, since that’s clearly how public opinion is moving. In 2000, an identical legislative measure, consisting of the exact same sentence about marriage, was approved by 61% of the voters. Prop 8 received only 52% of the vote. Moreover, it laid down a precise blueprint for a future reversal.

    The main argument by the Yes-on-8 side was that gay marriage would inevitably be taught in the schools if it remained legal. This was extremely effective, despite the No-on-8 attempts to pooh-pooh it. So now all a counter-measure needs to do is include language which strictly forbids the teaching or advocacy of gay marriage in public schools (at least without the explicit approval of parents). That will be sufficient to shift 2% of the vote.

    Passing an initiative measure to allow gay marriage will be far more effective in the long run than relying on court rulings. Once such a measure is approved, much of the opposition will be eviscerated. After all, the majority will have spoken, and many people who oppose the idea will nonetheless acknowledge its legitimacy. Whereas if gay marriage is imposed by the courts, we’ll have another situation like the abortion controversy, which will fester for decades and contain the continuing threat that a realignment of justices could overturn the past decision.

  24. I’ve long been one of those people that says ‘if you want people to agree with you, you should play nicely’ . Having read several practicioners of that tactic in this thread, I may have to rethink that.

    Hearing ‘will of the people’ thrown around is kinda funny too. Let’s dispense with the flowery words and call it what it is. Majority rule. Cause majority rule is always good for the minority isn’t it? That’s why we have a representitive democracy rather than a true republic.

    NM, just out of curiosity, could you give me some examples of western cultures with multiple partner marriages? The only one that comes to mind for me are the Latter Day Saints.

  25. James,
    Here’s the thing, going to court because the law has been violated in a way that hurts you is not remotely the same thing as “pulling out a gun, shooting the bastard, and then expecting society to just accept your side of the story without question.” The notion that one should go to court to address violations of the perpetrated against them isn’t even a radical one. That’s the predominant reason for the courts’ existence.

    All I keep hearing from people like yourself is that gay people should just shut up and take it and eventually things will change. But that’s not the way things work. Change requires an impetus. For the most part public opinion doesn’t change simply because time passes. You want to know how successful vocally fighting for gay rights has been, look at Prop 8! In 2000, a similar measure passed with 61% of the vote. In 2008, that’s been sliced down to 52%!!! That change didn’t happen because gay people sat back and did nothing. It happened because we kept the fight and keeping the message out in front of people. If people aren’t forced to confront their beliefs, then they will lazily fall back on whatever they’ve been conditioned to believe. It’s only by keeping the fight in the forefront that people begin to question and recognize the inconsistency, illogic, and inhumanity of those positions.

    Charlie,
    I don’t need you to make any inference at all. A bigot is defined by their behavior. If one opposes another’s human rights, then that one is a bigot.

    As for your opinion on my comments. Noted and promptly forgotten.

  26. Dolphin,

    In this case, yes, trying to overturn Prop 8 via the court system _is_ like using extrajudiciary measures. The court derives its authority from the CA constitution. If you say that it is unconstitutional to amend the constitution and, therefore, the will of five justices counts more than those of millions, than said justices are conducting a vigilante action with a thin veneer of authority.
    Put a different way, the predominant reason for the courts’ existence is to adjudicate the rule of law. If the courts now say, “Well, you know, the rule of law says that the people get to change things as they see fit, but we don’t agree with that…” then the justices will have undercut the very document that their authority is based upon.
    I’m glad that you feel a 14% cut is a victory–but I’d look at it as the SSM side just motivated the people of California to actually enshrine a definition of marriage in the constitution. Moreover, if the Supreme Court and the supporters of SSM had simply shown a little restraint and said, “Fine, let’s see what the people think before we start issuing licenses”, I strongly suspect that the measure would have failed spectacularly. However, since there was a rush to perform marriages followed by actions that basically amounted to taunting of the Prop 8 proponents…well, ye reap what you sow.

    What you are apparently failing to understand is I am _not_ saying that you should just be good little victims, lie back, and take whatever happens. If that’s what you keep hearing–well, that imposed disability may be what’s harming your cause also. What I _am_ saying is that looking for another 5-4 decision that will inevitably be followed by a recall and reversal that will be tacitly approved by many who would otherwise be your allies isn’t exactly prudent. Nor is not immediately and ruthlessly suppressing those in your movement who are calling for attacks against blacks, Mormons, or Catholics. (Because nothing will screw you over faster than some idiot attacking some Catholic family with a Yes to Prop 8 sticker on their van and subsequently forcing some car crash that kills the mother or children.)

    Instead, once more for the hearing impaired, I am saying that you need to actually look at the whole Civil Rights movement (not just the parts you like) and realize there were many things that set the ground work for Brown v. Board and allowed to make it stick. No one likes being told to wait…wait…wait, but only petulant children get the luxury of stomping their feet, screaming, and making life uncomfortable for everyone around them in order to get their way. In short, you have had a tactical defeat–but don’t let that lead to you deciding to try and seek the same kind of victory King Pyhrrus achieved.

  27. W, I’m glad you asked. The two legal systems with multiple partner marriage that come most forcefully to mind as antecedents to present-day US culture are those bound by Jewish and Roman Law.

    Jewish Law everywhere permitted multiple marriages by men (both multiple wives and concubinage) until the Second Commonwealth period (530–70 BCE); by about the third century BCE began to be less common, and by the end of that period was uncommon in practice (it occurred most commonly in the case of a first wife’s insanity or when levirate marriage was necessary) but still theoretically legal. It remained so until, in the early 11th century CE, when a court led by R. Gershom (d. 1040) declared it illegal (except in the two circumstances already mentioned) for the Jews of France and Germany. This is considered binding on all Ashkenazic Jews, and changes in divorce law and levirate marriage since that time have removed the necessity for the exceptions. Polygamy remained legal for all other Jews (and, so far as I know, still does in theory; certainly, some Yemenite Jews were polygamous until around 60 years ago), but since the 12th century CE, marriage contracts in most Jewish communities have included a clause that prohibits a man from taking a second wife (except in the circumstances mentioned).

    Roman Law permitted a man to have only one wife at a time (divorce was easy and could be initiated by either the man (or his father, if he was still legally a minor — men often remained legal minors until their father’s death) or by a legally adult male in the woman’s family. But multiple concubinage was common, and legal protections/obligations for concubines and their children were part of ordinary marriage law. These provisions remained in force even after the establishment of Christianity as the official religion of the Empire and were a source of frequent struggles between secular and religious authorities well into the 12th century CE. In some places (for instance, Castile and other parts of the Iberian Peninsula), legal concubinage lasted into the late 13th/early 14th century.

  28. W, Caesar reports that the Gauls, Britons, Picts, and Celts (that would be both Scotland and Ireland) were polygamous, as were the elite Germans and other “barbarian” nations in western and central Europe. The Norse practiced varieties of both polygamy and polygyny, depending on the place and era you’re talking about. Moving forward some centuries, the Merovingian kings of France (thinking particularly of Clotaire and Dagobert) had multiple wives. Saint Columba was kicked out of Gaul for critizing the practice of multiple wives, as Catholicism rather perversely insisted on serial monogamy.

    You really don’t have to go all that far back, though. Right now, an estimated 150,000 households in France are polygamous. Italy, which has a more activist Catholic church, has about 15,000 polygamous households. Chechen leaders have proposed officially sanctioning polygamy due to the horrific loss of male life during the Chechen war. The reason people are freaking about it is that this is not some past condition, but rather an issue of contemporary relevance.

  29. Oh, and bringing up a good point about concubinage and servitude, early modern western law in evolving nation-states like France and Germany rather broadly permitted (or at least did not punish, as it was understood as something that came with the other domestic services provided) male sexual access to indentured servants and minor women co-resident in the household. In this way, one could argue that legal realists turned a blind eye to multi-party cohabitation among those European elites who otherwise might have been alienated by the imposition of cumbersome Christian monogamy. Everybody has their workarounds.

  30. Wow, this has been a really good, interesting discussion. I just have some minor points: 1. If there is a question of interpreting the law–was Prop 8 properly brought forth before the citizens of California?–it is indeed the role of the courts to judge what is the correct interpretations. That’s not imposing your will on the people; that’s making sure that everyone follows the same rules. 2. We also do indeed have courts to protect the minority from the tyranny of the majority. 3. And, at the end of the day, it is not only about winning the case, but about keeping the issue in discussion. I mean, take abortion. For those of us on both sides, the status quo is unacceptable. Waiting around to see how it shakes out, hoping people come around to your point of view, is unacceptable when you feel urgency.

    See, as a matter of illustration, Nina Simone.

  31. If you say that it is unconstitutional to amend the constitution

    Except this isn’t what the lawsuit in question is charging. It’s not unconstitutional to amend the constitution, but there’s a process for doing so that is laid out in that constitution. Any revisions to major underlying concepts of the CA Constitution MUST be made through either a constitutional convention or as a legislative amendment. I don’t think anybody can deny that essentially voiding the equal protection clause of the constitution is anything less than revising an MAJOR underlying concept of the CA constitution. Were the Supreme Court to decide it were, would mean contradicting their own previous declarations on the matter.

    Being a bigot doesn’t give you the right to simply ignore the law when it’s inconvenient to you. If the bigots wanted to pass Prop 8, they needed to lobby their legislators to do so as a legislative amendment. If they preferred to pass it with a simple majority vote, they needed to FIRST amend the amendment process in their constitution.

    And for the record, if demanding equal rights makes me a petulant child, I’ll happily don that moniker. Seems by your definition all progress through out history has been made by petulant children.

  32. Daniel Wiener, it would be quite surprising to me (refreshingly so) if any counter-proposition did contain a prohibition of teaching about so-called “gay marriage” in schools. An awful lot of us suspect that indoctrinating the normalization of homosexuality in schools and in society at large (via force of law as applied to churches, etc, regarding “illegal discrimination” and “hate speech”) is really the whole point of the agenda, with so-called “gay marriage” being the convenient vehicle. Although most people have ample tolerance for homosexuals and their lifestyle, and even compassion and affection for gay individuals, they absolutely do not look with enthusiasm at the prospect of “coerced approval”. Now, maybe I’m wrong about the real agenda. But these are the kind of concerns that are going to have to be answered.

  33. Matteo,
    Why don’t you fight what you’re against? If your against gay marriage being taught it schools, why not fight that? I mean, it’s a bizarre cause to have. Straight marriage has never been taught in schools, why would gay marriage be. That particular fear just doesn’t even pass the common sense test.
    Against “hate speech” laws? Me too. We could actually fight along together against that one.
    But marriage equality doesn’t have anything at all to do with schools and doesn’t have anything at all to do with “hate speech.” Those “concerns” aren’t being “answered” because they are irrelevant to the topic at hand.
    Why not debate each issue on it’s own merits?

  34. Dolphin,

    Same sex marriage is simply not an underlying concept of the CA Constitution. Equal protection is, and the simple fact is that homosexuals are not banned by law from participating in the institution of one-man one-woman marriage. They do in fact, enjoy equal protection with respect to this institution. It really is that clearcut.

    Now, since it is *your* side that wants to make fundamental changes to long established meanings and practices, and to create an unprecedented new institution that must be recognized under penalty of law by the citizenry, even going so far as to usurp the name of a different institution, isn’t it *your* side that should be seeking *not an amendment*, but a *revision* to the CA Constitution?

  35. Brown v. Board was a critical decision, but I think you’re missing the overall picture. Brown was in 1954. We were still having desegregation battles in the 1970s and 1980s. Also, Brown was the only marginally successful attempt by the Courts to use their power to affect social change (I say marginally because of the timeframe). Think of the other instances where the Court weighed in on societal issues and was no where near as successful: Dred Scott led to the Civil War; Plessy v. Ferguson entrenched segregation for another 70 years; Roe v. Wade led to the conservative backlash over the last 30 years. On this issue, I’m with Sullivan – the backlash overwhelms the incremental success. Better to persuade the California voters that they were wrong. Then, when the rest of the country sees that SSM is no big deal, they may follow suit.

  36. “Human rights are not the kind of thing that are subject to popular opinion, and our system of government is set up to prevent that as much as possible.”

    The problem is that there is no consenus as to what consitutes human rights. Hell, I would like to have the “human right” to a million dollars and a fast car.

    The HBLT community are essentially arguing that setting up a social institution that doesn’t cater to their sexual preferences is equivalent to taking away the vote from blacks.

    The problem is that gays do get equal rights – gays don’t lose the right to vote, or any other right guaranteed all other members of society. Gays do have preferences that are not catered for by some social institutions (they want to marry members of the same sex, not members of the opposite sex). But society catering non-homogenously to a small minority preference group doesn’t mean society is denying that group their human rights.

    Let’s for example say that I am a collector of Bolivian stamps. I have a hard time to see it is valid to claim that my “human rights are being violated” because the city decided to build a football stadium and institute a “footballer of the year” award instead of a Bolivian Stamp Center and a BSCoTY award.

    And yes, that goes even if you care really deeply about your preferences, or if your preferences have a genetic component (newsflash: Most preferences have a genetic component).

    Finally, making end runs around the most important social institutions, such as the ballot box, is a violation of basic social norms and the rights of others far more flagrant than not getting your way with regards to the defintion of marriage.

  37. Aunt B.,

    I think question 1 is a valid question. However, the time to ask should Prop 8 have been brought before the CA people was well before the vote even occurred. In my opinion there is room for the answer to this to be an emphatic _no_ in that case. Afterwards, however, I think arguing should the horse have been let out of the barn is a bit problematic and has the air of unintended consequences. It’s all fun and games until someone then sues the state for wasting taxpayer dollars on an election that shouldn’t have happened in the first place.

    The role of the courts to protect the minority is a subset to the rule of law in my opinion. Put another way, if you don’t establish that the courts have authority in the first place then the judges, justices, etc. in black robes can hand down all the rulings they like but the people will not follow them. Indeed, I’d say that unintended consequences of an overturn or going to be rather steep.

    Dolphin,

    No, I’m sorry, demanding redress to the courts as a shortcut to doing the multi-year ground work to make things better is what causes you to be a petulant child, not the process of demanding change itself. Having made the difference to you as clear as I can, we are rapidly approaching the point where the “twenty minute rule” is starting to apply. You have no significant counterpoints to the differences between your struggle and that of various other minorities, nor do you appear willing to listen to gentle advice telling you that your method is turning off others.

    Fine then, keep trying your plan of attack and let me know when the Germans run out of machine gun ammo General Haig. I sincerely hope that calmer, more prudent folks on the California Supreme Court realize that this is some really bad ground to die on and decide to fight another day. Otherwise you better hope that someone at the Federal level is ready to step in and back a play, as there are at least 52% of the populace that will support a push for recall followed by an overturn. Then tell me where your precious demands will be?

    You remind me of radical Republicans during Reconstruction who wanted to impose their will on the South in order to help the freedmen. In the end, their methodology only served to harden Southern resolve and usher in the Jim Crow era. I am telling you that there’s an easier way to do things, and you are telling me that I am a bigot who doesn’t understand your struggle. Yes, you’re right, I don’t know _anything_ about ignorant people who do things out of fear.

    Let me put it to you even more bluntly: I am someone who is _sympathetic to your cause_ and I find your methodology bothersome. How many folks who were neutral or only narrowly unsympathetic are you going to turn off if you get the courts to overturn the will of the people again? Moreover, do you want to only be able to marry in a handful of states or the whole nation? Doesn’t it bother you that every time this issue ends up in the news with a court decision attached to it even more states put anti-gay amendments into their Constitution by ever increasing margins? Maybe it’s coincidence rather than causation, but I wouldn’t keep touching that hot stove to find out.

    Having come so far in the last few years (Lawrence v. Texas? The CT, MA, and NJ court decisions and state legislatures passing various same-sex union laws?) you seem to want everything _right now_ rather than saying, “I can hold off three years if it means no one behind me will ever fight this fight again.” Maybe the fact that other minorities in similar situations have taken this outlook explains their much greater success even while fighting the same tidal forces of religion, ignorance, bigotry (yes, some folks arguing against this are bigots people), and demagoguery may explain their greater success. However, if you continue to allow the other side to cast you as folks who just lawyer up when the people have spoken…well, get ready to get more and more beat downs, as the majority of the American public hates being told what to do by lawyers.

  38. I am google-eyed at the smugness of the “I have gay friends but I don’t approve of their lifestyle and allowing same-sex marriage provides governmental approval to their sins.”

    Did you tell your “gay friends” you voted against marriage rights for them? I bet not. And your “gay friends”? I bet they don’t consider *you* their friend and would despair of your use of them as a supporting argument.

    I’m gay. Always have been. Always will be. I’m in a long-term relationship. I don’t care about anyone’s approval, what I want is equal protection under the law. The “you have rights to marry a woman” argument is so Jr-high-school debate class.

    If I or my partner died, the survivor would have to pay taxes on my half of our joint investments. That’s just one example. Why is that right?

    The idea that enforcing your disapproval is going to result in fewer gay people is laughably stupid. It has no effect except to make your bigoted self feel better and make me feel worse. And you’re proud of this.

    What awful, awful people.

  39. Dolphin,

    According to you, a bigot is one who holds that gays are not human and therefore not deserving of human rights.

    I have never seen/heard anything close to such an argument and like any decent person would ignore it if I did. Is it all just drama and self-pity with you?

    By your argument, there are virtually no bigots. And in any case, the task is not changing the mind of bigots but persuading a majority of the reasonableness of voting in your favor.

    Personally, I agree that the matter is settled right in the Dec of Ind. What does “the pursuit of happiness” mean if we are not to be allowed to shape the major milestones of our own lives? Try arguing that rather than that everyone’s a bigot and see if you don’t make a bit more progress.

  40. Matteo & dock,
    The CA Supreme Court disagrees with your view of the equal protection clause. Frankly, their opinion matters more than yours. And Matteo, why’d you ignore all my questions to you?

    James,
    The question of whether or not the the measure should have even been on the ballot WAS brought to the courts prior to the vote. The courts response was (obviously a paraphrase), “We don’t want to get our hands dirty yet when the whole thing could be a moot point if the measure fails. Get back to us after the election.”

    Here’s the thing James, I do hear what you’re saying. And “changing hearts and minds” IS being done, constantly. Frankly, I’m not in court, nor do I have a lawsuit pending in my state. But I WILL NOT tell others that they do not have the right to go to court when someone violates the law in a way that harms them.

    Maybe that means that there will be setbacks. Maybe that means it will tick off some otherwise neutral people. But we can’t simply ignore the law because ignoring it keeps certain people content at the expense of others. If we do, what’s the point of having laws in the first place?

    As for these other minorities who have had “much greater success” in similar situations, who are they? I think gay people have done quite well in how much has been accomplished in how little time. There’s certainly a long way to go, but I think we’ve come alot further than you’re realizing.

  41. “The CA Supreme Court disagrees with your view of the equal protection clause. Frankly, their opinion matters more than yours.”

    Fair enough, if you feel you can’t defend your position in public debate, then that will have to stand for you and your cause.

  42. Once again I’ll argue that marriage shouldn’t be a legal matter. If we did away with the idea that marriage requires recognition by the government, most of the controversy would instantly disappear. Individuals (whether homosexual or heterosexual or polygamous or whatever) could get married according to the rites of their own churches (or via secular ceremonies if they weren’t religious) and it would be nobody else’s business that they considered themselves married. They could also sign civil contracts to deal with the variety of financial and other issues which are today conglomerated into a “one size fits all” government-approved marriage contract.

    And what about tax consequences, insurance problems, custody issues, etc.? Again, those can be handled without resorting to a government definition of marriage. Tax laws can be modified (and probably will be now that Democrats control both Congress and the White House), insurance policies can be modified (as has already been happening), and guardian and custody laws can be re-written, all without mentioning marriage.

    In short, government discrimination can be ended if we just get government out of the marriage business altogether. That won’t immediately end private prejudice or discrimination, but by getting rid of the controversial flash points of government policy it will speed the evolution of people’s attitudes.

  43. According to you, a bigot is one who holds that gays are not human and therefore not deserving of human rights.

    By definition, if one is not deserving of human rights, then they are not human. How can you dispute this? It’s the very meaning of the word “human rights.”

    Care to explain… why?

    “Black people have the same right to marry members of their own race as white people do, therefore we should illegalize mixed-race marriages.” Do you agree with that statement, dock?

  44. “But I WILL NOT tell others that they do not have the right to go to court when someone violates the law in a way that harms them.”

    This is of course a very special kind of law – a kind that involves the legislator not actually knowing that they had legislated. The kind of law that is spelled out “lawlessness”.

  45. “Black people have the same right to marry members of their own race as white people do, therefore we should illegalize mixed-race marriages.” Do you agree with that statement, dock?”

    The equation of sexual preference with race is tedious. As I spelled out earlier, if all preferences are to be equated with race, then virtually any policy will be “unlawful”. Race is not a preference. Sexual preference is… well, a preference. Now, that’s not so hard is it?

  46. “Once again I’ll argue that marriage shouldn’t be a legal matter. If we did away with the idea that marriage requires recognition by the government, most of the controversy would instantly disappear. ”

    Hehe – supposedly gay marriage is supposed to be non-threatening to the existing institution of marriage. At the same time, gay marriage advocates advocate… well, the abolition of marriage as a solution to the whole problem. It’s rich indeed!

  47. Dock, it’s beside the point because, as has been pointed out in this discussion, the “marriage” protected by the state is not restricted to the marriage of one man and one woman. The “marriage” protected by many religions is so restricted, but the separation of church and state requires that the state not adopt the definition set by any religion.

  48. Dolphin,

    “By definition, if one is not deserving of human rights, then they are not human.”

    If that is how you see your goal being blocked, then the battle, dear boy, is not in the real world but in your own mind. Show me anyone actually making anything like the argument you claim, and I will show you someone so marginal as not to be any impediment whatsoever to gay and lesbian marriage.

  49. Sexual preference is… well, a preference.

    Yes, but it isn’t a preference a person can choose or not choose. Language, folks, language.

  50. “…but the separation of church and state requires that the state not adopt the definition set by any religion.”

    Interesting. So, is a ban on murder potentially unconstitutional? After all, that “thou shalt not kill” business is in the old testament – smells like theocracy to me!

  51. o, is a ban on murder potentially unconstitutional? After all, that “thou shalt not kill” business is in the old testament – smells like theocracy to me!

    Ok, you’re officially being ignored by me now. Anybody who would suggest that the state has no legitimate interest in prohibiting murder outside of religious grounds is either far too stupid to have a meaningful discussion with, or (more likely) knows better but is just trolling to be a troll. And I don’t feed trolls.

  52. “Yes, but it isn’t a preference a person can choose or not choose. Language, folks, language.”

    That’s pretty much irrelevant. To which extent people can actually choose anything is a matter of much scientific debate. That, of course, doesn’t make all policymaking that caters differently to different preferences a violation of basic human rights.

    What is certain is that it is trivial to create a “ban on gay marriage” that doesn’t require mentioning gayness at all. (You just define it, well, as marriage) It’s a bit like the city not explicitly having to state “we hate hockey fans” when they decide to create a football lifetime achievent award instead of a hockey one. They just didn’t cater to hockey fans, that is all.

    It is at the same time obviously, very hard to create a ban on interracial marriage that doesn’t mention, well, race.

    The reason for the difference? Well, homosexuality is a matter of personal behavior – race obviously isn’t.

  53. Dolphin,

    -Blacks for one had a much greater success with pushing for their civil rights goals. It wasn’t the lawsuits that did it–it was the sense of shame that folks’ quiet dignity was able to impart on large portions of the population. Well, that and the Bull Connor types not understanding the medium of television.

    -Success? Same sex marriage is 0-for-30 as a ballot initiative, with the losses ranging from “narrow” to “woodshed doesn’t begin to describe this beating.” Indeed, one could argue that the handful of victorious cases have had a disastrous effect in that they have driven the 0-30 rout. Put another way, for every “victory” you’re looking at roughly five or six losses, and that doesn’t even count the larger loss of the gay marriage amendments pushing GOP turnout for the 2004 election.

    -Finally, even you are successful in getting the CA Supreme Court to commit political seppuku, I’m pretty sure _at this time_ you’re not going to have much success with SCOTUS. Given how precedent rather than independent thought seems to rule that august body, do you really want a 5-4 decision against SSM in the hopper? Because right now, yes, you will get a 5-4 against at least. Even worse, for the next four years you will have a POTUS who not only risks ticking off a large portion of his most solid constituency if he argues in support of overturning not only CA’s but, by extension, will be telling 30 other states’ voters to go to hell. How do you think that’s going to go? You think Obama is going to take a page from the Clinton playbook and go to the mat for gay rights only to end up with a vehemently hostile Congress for the next four years? Or do you think that he’s going to put his foot on your neck in order to increase his “moderate” bona fides?

    Patience is all I am advocating for you. Take it to court now, you risk losing big. Wait one year or three years (i.e., off the national election cycle) and victory is well within your grasp given the trends.

  54. “Ok, you’re officially being ignored by me now. Anybody who would suggest that the state has no legitimate interest in prohibiting murder outside of religious grounds”

    Where did I suggest that? At least ignore me on the basis of something I actually wrote, not based on a point you dreamed up yourself**.

    **PROTIP: You don’t have to be religious in order to not believe that gay marriage is mandated by the California constitution. I am an atheist, and I certainly think that both you and Supreme Court of California have got your jurisprudence in a bunch here.

  55. is a ban on murder potentially unconstitutional? After all, that “thou shalt not kill” business is in the old testament – smells like theocracy to me!

    Hmmm … bans on murder show up in legal codes with no religious basis even before Jewish scriptures weigh in on the question. No, I think we’re going to have to point out that, unlike marriage, murder has been understood pretty consistently across all cultures, with no reference to religion, and has been condemned in all of them; the fact that religious legal codes are among those condemning it simply shows that the presence or absence of religion isn’t relevant: all recorded human societies have found murder to be wrong.

  56. James,
    Gay people can’t rely on quiet dignity. If I don’t tell you I’m gay, how exactly are you to know?

    Plus, I’ll challenge your assertion that black people relied on quiet dignity. Unless my history books are wrong, black people won the victories they won by rocking the boat, often even facing arrests for their actions. Sitting quietly doesn’t accomplish anything except to continue the status quo.

    Same sex marriage is 0-for-30 as a ballot initiative

    First of all “gay rights” includes but is DEFINITELY not limited to marriiage equality. Further even limiting ourselves to the topic of marriage euqality, it’s legal in 2.5 states (not sure precisely how to count CA) and exists in a separate but equal middle-step in a fairly large handful of others.

    Patience is all I am advocating for you. Take it to court now, you risk losing big. Wait one year or three years (i.e., off the national election cycle) and victory is well within your grasp given the trends.

    Like I said, I can’t advise anyone to just sit back and take it when they are being violated. The trends are what they are because people decided that they wouldn’t just sit there anymore. The modern gay rights movement started with a riot. While I don’t advocate rioting, I do think that sitting at home watching tv doesn’t accomplish anything other than giving you a beer gut.

  57. So, you are saying that discrimination based upon sex should be treated the same was as discrimination based on race.

    Ever heard of the ERA? It failed. Ever hear of the 19th Amendment? It gave women the right to vote. If the 14th blocked discrimination based up on sex, the 19th wouldn’t have been needed, because women would ahve gotten the vote in 1868.

    You will note that their are single sex bathrooms, and locker rooms, and no one sane complains “separate is not equal!” That’s because there’s no Constitutional requirement for equal treatment based on sex.

    Men can marry women, and only women. Women can marry men, and only men. Doesn’t matter if you’re gay or straight, yo uall have the same rights. That’s equal treatment under the law.

    You feel free to keep on pushing this in the courts. but understand that there’s a large number of us who are indifferent to SSM, but utterly hostile to black robed thugs who rewrite the law according to their personal desires, and to the dishonest cheats who urge them on.

    Take a look at Arizona. In 2006 the voters declined (in a close vote) to put a prohibition against SSM in the State Constitution. In 2008, after the black robed thugs in CA and Connecticut decided to impose SSM on their States, the voters in Arizona passed the same ban quite handily.

  58. That, of course, doesn’t make all policymaking that caters differently to different preferences a violation of basic human rights.
    Are we seriously arguing if this is a violation of human rights? Don’t focus on the trees, focus on the forest. The point is that Prop 8 is discriminatory because it dictates who you can marry. If straight people can enter into this governementally recognized relationship then gay people should as well.

    I’ve never seen an actual good reason that the government should not let same sex marriage happen. Why is the line in the sand drawn here?

    Dock, your debating skills seem to consist solely of pointing out the differences between apples and oranges, along with a whoppping helping of smugness.

    supposedly gay marriage is supposed to be non-threatening to the existing institution of marriage. At the same time, gay marriage advocates advocate… well, the abolition of marriage as a solution to the whole problem.
    Nobody in here advocated abolition of marriage. Just abolition of government recognition of marriage. The difference isn’t really that subtle.

  59. Dock said: “Hehe – supposedly gay marriage is supposed to be non-threatening to the existing institution of marriage. At the same time, gay marriage advocates advocate… well, the abolition of marriage as a solution to the whole problem. It’s rich indeed!”

    Although other people share my opinion that we should get government out of the marriage business (see, for example, the article “Privatize Marriage” in Slate at ), I doubt that it is shared by the leading opponents of Prop 8. I am neither a gay marriage advocate nor an anti-gay marriage advocate. I did vote against Prop 8, but only because I do not think a definition of marriage should be inserted into California’s constitution.

    So trying to find a contradiction by lumping me in with gay marriage advocates who argue that “gay marriage is supposed to be non-threatening to the existing institution of marriage” won’t work. I’m not one of them, and they quite possibly disagree with me as much as you do (albeit from a different perspective).

    That being said, I do believe that freeing marriage from government shackles would be beneficial to all and harmful to none. Those who believe in traditional marriages could continue to have their traditional marriages, with civil contracts being signed to handle the financial and other aspects which are currently intertwined with the religious and ceremonial aspects.

  60. “Hmmm … bans on murder show up in legal codes with no religious basis even before Jewish scriptures weigh in on the question. No, I think we’re going to have to point out that, unlike marriage, murder has been understood pretty consistently across all cultures, with no reference to religion, and has been condemned in all of them.”

    This is of course not true. Our present understanding of murder differs quite a bit from, say, Viking murder jurisprudence. Or German murder jurisprudence 65 years ago, for that matter.

    What exactly constitutes murder – and who you legitimately kill and for what reason, has shown remarkable variation. (Oh, and what societies exactly have institutionalized gay marriage? *crickets* Doesn’t that sort of undermine your “it’s a protestant plot” line of reasoning?)

    In any case, the whole attempt to argue that it is illegal to legislate something that has some partial* moral basis in religion is… radical. Why not just disenfranchise all non-atheists and be done with it? (Hey, it would make me more powerful!)

    *People don’t have to be religious to value the institution of marriage for promoting social and sexual stability between men and women, or to believe it just plain works better if you don’t tweak it to suit every marginal preference out there.

  61. “Are we seriously arguing if this is a violation of human rights? Don’t focus on the trees, focus on the forest. The point is that Prop 8 is discriminatory because it dictates who you can marry. If straight people can enter into this governementally recognized relationship then gay people should as well.”

    And they can.

    “Dock, your debating skills seem to consist solely of pointing out the differences between apples and oranges, along with a whoppping helping of smugness.”

    Hey, I’m not the one so smug about my position that I believe it should be beyond the power of petty considerations like democracy.

  62. “Dock, your debating skills seem to consist solely of pointing out the differences between apples and oranges.”

    Which is useful, considering that most people on this site are adamant that apples *are* oranges.

  63. (Oh, and what societies exactly have institutionalized gay marriage? *crickets* Doesn’t that sort of undermine your “it’s a protestant plot” line of reasoning?)

    When did I ever write anything that could possibly be construed as “‘it [opposition to same sex marriage, I assume you mean]‘s a [P]rotestant plot'”? Please. Also, you might want to take a good look at Boswell’s The Marriage of Likeness: Same-Sex Unions in Pre-Modern Europe. Dolphin is right; you’re too uninformed to argue with.

  64. Ah, so the legal definitions of things change over time, as ideas about and within a given society change, and those differences matter to the people harmed by oppressive laws? Imagine that.

  65. Or, if you’re into the classics, anything written in the last twenty years about same-sex unions in classical Greece or Rome.

    We’re done here.

  66. Dolphin,

    The matter at hand is gay marriage, not gay rights. You’re changing the parameters of the argument in order to try and change the bald fact of 0-for-30 doesn’t brief well.

    Quiet dignity does not equal lay back and be violated. Quiet dignity means doing sit ins. Quiet dignity means boycotts. Quiet dignity means sitting in the Birmingham jail, marching on Selma, or facing the fire hoses and dogs without returning violence or fitting into the stereotypes.

    SSM is at a crossroads on how they want to do things. I say again–in reality, the courts have no authority outside of the courtroom. If the Executive and Legislative branches decide to curtail the Judicial (or simply ignore it), it’s game over. Pushing the issues in the court without having first prepped the battlefield is doomed to failure _precisely_ because homosexuality is not so blazingly obvious that people inherently realize they do know people being discriminated against.

    Don’t think the pushback hasn’t begun? Tell me, why is ABC starting to cut back on the number of gay characters in its prime time lineup? Why do you see some manufacturers stepping back from pro-gay stances or advertising in known homosexual oriented magazines? (Ford comes to mind in recent history.) Because obviously the focus groups are telling them that resolve is starting to harden on this issue. Gee, maybe the reason that’s happening is people are watching courts tell folks they’re going to like it or lump it?

    Tactical patience is not the same as accepting subjugation. If you think that it is, I have to wonder if you’ve ever had to walk away to fight another day on anything in your life. _You_ feel it’s a basic human right, but up to 70% of some state’s populations don’t even want to think about seeing two men / women kiss at their local PTA meeting nor have to explain to their kids why Timmy has two fathers. (Full disclosure: I don’t like PDA period, but this is the biggest issue I always hear raised.) Now, you can either try to persuade these people and have lasting change or you can shove it down their throats and then have them pay you back when the numbers change.

    Once again _your call_, but if I were in your shoes I’d know where I’d stand. As I’ve alluded to above and others have outright stated, people who are otherwise not opposed to you have severe problems with things being imposed based on what a particular judge felt was right on a particular day. Indeed, it starts to become a case of “if judges can refuse the will of the people on this, they can do it on ___”–and neither you or I want to reach the bottom of that particular abyss.

  67. Dolphin–

    I didn’t ignore your questions to me. It happens that I wrote my previous post before having seen your questions. You asked why I wasn’t fighting such things as hate speech laws and having homosexuality championed in schools. My answer is simple. That’s precisely what I was doing by voting ‘Yes’ on Prop 8.

    Now, you might protest that *you* have no intention of pushing those things should so-called “gay marriage” become law. Even if I have no problem trusting *you* about this, I absolutely, positively, cannot trust the LGBT political movement as a whole. Yes on Prop 8 was a vote of self-defense on precisely these issues.

    As far as I’m concerned, you can have your relationships, your partnership rights, and all other things except the word “marriage”. It is really very simple. The word is already taken. As a voter I will fight all attempts to force me to affirm a meaning that, in my eyes, the word does not, and cannot have.

  68. “When did I ever write anything that could possibly be construed as “‘it [opposition to same sex marriage, I assume you mean]’s a [P]rotestant plot’”

    It was argued that it is illegal to define marriage as being between a man and a women, because that obviously establishes a specific religion. I assume it has to be protestantism (or at the very least christianity). (The “plot” part was in jest, obviously).

    Furthermore, the fact that gay marriage is far from ubiquitous outside of christian (or even monotheist countries) does clearly demonstrate that not doing the gay marriage thing is not necessarily a christian thing. I know about the greeks et. al. – but let’s face it, even the standard-issue history-as-advocacy type quoted above prefers to talk about the looser term “union”. Hence, not recognizing “gay marriage” does not equal the establishment of Christianity of any flavor.

  69. “Ah, so the legal definitions of things change over time, as ideas about and within a given society change, and those differences matter to the people harmed by oppressive laws? Imagine that.”

    Is this an argument of some sort? The point, again, was to show that you can’t declare something “unconstitutional” merely because Christians advocate it.

  70. “Dolphin is right; you’re too uninformed to argue with.”

    Except that you wrote two more posts arguing with me after that one. What is it with this thread and people threatening to pick up their toys?

  71. “Except that you wrote two more posts arguing with me after that one.”

    Oppsie. That was by nm, not Bridgett. Just ignore the above and go straight to the line about the toys.

  72. That’s precisely what I was doing by voting ‘Yes’ on Prop 8.

    Then you were uninformed on what you were voting on.

    I absolutely, positively, cannot trust the LGBT political movement as a whole

    Then we can’t go any further. Any legitimate discussion requires that participants listen to what the other one has to say. If you’ve already decided that myself and those I’m allied with on this issue are part of some vast conspiracy, then we can’t have a discussion; because you’re already having both sides of the conversation for us.

    James,
    I guess I’m having trouble seeing what you’re suggesting we do by “quiet dignity” that we aren’t already doing. Sit-ins? Turn on the news, there are various peaceful protests going on all over the place (not even limited to California). Boycotts? There have been plenty of boycotts of companies that supported Prop 8 and other anti-gay causes. There are numerous organizations and companies that I avoid giving my money to because of the anti-gay measures they support. Technically in the case of marriage the government is ultimately at fault since they are the ones not enforcing the equal protection clause of the constitution as written. It’s hard to boycott the government, but I’ve heard in the wake of Prop 8, Melissa Etheridge has said she will not be paying taxes as she’s not being treated as a citizen. Whether that was said to make a point or whether she actually plans to follow through, I don’t know, but if she follows through, that will fill in your “sitting in jail” requirement. If she doesn’t, I know at least one friend of mine who has been arrested during a peaceful civil disobedience demonstration in support of gay rights. Marching? We’ve done lots of marching. I, personally, have been in several marches. Thankfully, OUR marches weren’t attacked by police like the Selma marchers. Facing fire hoses and dogs without resorting to violence? I don’t know about facing fire hoses and dogs, but we face property vandalism, physical violence, character assassination, and more for speaking out, yet there is little violence returned from us.

    The interesting thing is you want to limit my discussion to same-sex marriage instead of gay rights in general, however you want to expand the comparison to cover all of the black civil rights movement, instead of the more narrow interracial marriage movement (which would be a more accurate comparison) which was solved (where else?) in court.

    I can’t speak to the pop culture “push back” you refer to because I don’t watch TV, but I am glad to hear that they are taking out the insulting token (generally very stereotypically) gay characters in the shows. From what I hear, the gay characters that are replacing them are much more true to life. We had a conversation here not too long ago in which I noted these gay characters are the gay equivalent of a minstrel show. I’d be curious what niche markets marketers are NOT cutting back on in this economy.

    PDA arguments are silly. Prohibition of marriage does not prohibit PDA nor does the establishment of marriage increase the likelihood of PDA. Same goes for Timmy’s two dads. Married or not, gay couples have long had kids, whether from adoption, surrogacy, artificial insemination (in the case of lesbians), and previous relationships. Now it’s fair to say that Timmy would be better off if his dads could get married, but the bigots will always put their own prejudices before the actual good of the children. ALWAYS.

    Here’s where we differ. I don’t believe the judges have refused the will of the people by upholding the constitution. The constitution as written calls for equal protection under the law. If the will of the people is to abolish equal protection and establish multiple tiers of citizenship, the mechanism is in place to do just that. That would tie the courts hands. It’s called checks and balances. Legislators (in this case legislation by ballot initiative) have a check on the courts. They are just choosing to use it (because they know what they are doing is plainly wrong and don’t want to be forced to acknowledge that), so instead they are demanding that the courts defer to them without question. You worry about what the courts will do if they are allowed to do the job proscribed to them by the constitution. I’m far more concerned about what the people will do if we allow our society to devolve into mob rule.

  73. Wow, I honestly didn’t realize there were still so many people out there who believe one can just wake up and decide to be gay.

    I mean, I know I can’t, but evidently a lot of the commenters here can. Do you suppose they’ve told their spouses?

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