Distracted by the DOMA Ruling

Sorry for getting a late start today, but I wanted to take a few minutes to at least skim the DOMA decision released by the Supreme Court today. While I agree with the result, I also agree with Scalia’s dissent that if the Plaintiff and Government agreed with the result of the lower court, thus ended the controversy, and the Court of Appeals and Supreme Court would then have no jurisdiction to hear an appeal.

I’m also fine with invalidating DOMA on the grounds that the federal government has no power to define marriage; something that has long been the realm of the states. Though, I wonder how this would work if a state chose to recognize polygamous marriages, and federal law simply wasn’t equipped to deal with marriages involving multiple parties. But this was not a federalism ruling, it was an equal-protection ruling, which seems to be a setup for a future case that challenges states that refuse to recognize or sanctify same-sex marriages on equal protection grounds. Again, while I would agree with the result, I’m not sure how one could distinguish why same-sex couples would have equal-protection to enjoy the benefits of marriage, but first cousins or even siblings would not. The states must have some power to define marriage (though agreeably within the confines of the constitutional guarantees barring discrimination on the basis of race which are already placed on the states through the 14th Amendment).

I support all 50 states recognizing same-sex marriage, but I’m concerned about process. I think the proper realm for that issue to be decided is by state legislatures and state courts, and not through the federal court system. I say that even though I believe conservative opposition to same-sex marriage is handing a whole generation of younger voters to the left. Process is important, and I’m generally very concerned about the left’s, and much of the general population’s disregard for it.

105 thoughts on “Distracted by the DOMA Ruling”

  1. Neither the Federal nor the state courts have the “right” to define marriage.

    Marriage was defined by God. Nothing any human can do invalidates that definition. You can call ‘it’ anything you want. But you can’t call it marriage and be right on any level.

    Let the persecution of believers who refuse to cooperate or participate begin. No, wait, it’s already begun with Christian florists and cake bakers.

    1. What about those of us who don’t believe in magical skyfathers? I’m pretty sure we need men to define marriage. Just like they defined so many gods.

    2. And I think churches are free, and ought to remain free, to marry couples based on their biblical definition of marriage. It’s separate thing from what types of unions the state ought to recognize.

    3. I disagree … and I don’t think that “God said it” is the basis for good law.

      I’ve long thought that the State should be out of the marriage business, and even the civil union business for that matter. If churches or bodies of believers wish to recognize marriages, then more power to them. I just don’t think it’s right or just for married and single people to be treated differently under the law. If spouses or significant others need legal protection for inheritance or end-of-life matters, then that can be on a contractual basis between two or more people. I just never understood why the government would need to license/sanction a relationship between two consenting adults. Why is the government in the business of awarding benefits to people on the basis of marriage?

    4. I don’t see where it’s anyone’s business to define “marriage” or what it is, including a deity. (Let the deity, if it exists, deal with bad mortal decisions in its own way and when the time comes.) The position of The State at most should be that of arbiter of last resort in disputes over civil contracts, and whatever people wish to contract with each other to do, can be put into a contract. We can buy “standard” rental leases at a stationers, and there is no reason we could do the same with marriage contracts. If churches want to draft their own contracts for their adherents, God Bless Them, no pun intended. No one is holding a gun to anyone’s head to sign any particular contract.

    5. Marriage was defined by God.

      Damn right it was. And She thinks your insistence on keeping Her queer children in an inferior legal position is a complete dick move.

      Let the persecution of believers who refuse to cooperate or participate begin. No, wait, it’s already begun with Christian florists and cake bakers.

      Christians?! What do they have to do with anything? I mean, Holy Chao, they’re so confused that they think God is a guy!

    6. The Committee on Jewish Law and Standards, which is the central authority on halakha (Jewish law and tradition) within Conservative Judaism, voted 13-0 to recognize same-sex marriage as valid (PDF Link).

      The traditional ceremony of kiddushin is said to be k’dat Moshe v’Yisrael, “according to the laws of Moses and Israel.” We acknowledged in our responsum that same-sex intimate relationships are comprehensively banned by classical rabbinic law cited the oft-repeated halakhic principle gadol k’vod habriot shedoheh lo ta’aseh sheba Torah “Great is the demand of human dignity in that it supersedes a negative principle of Torah.” On this basis, and on the strong scientific evidence we cited that current discriminatory attitudes toward gay men and lesbians do indeed undermine their dignity, evidenced by their much higher rates of suicide, we concluded that for observant gay and lesbian Jews who would otherwise be condemned to a life of celibacy or secrecy, their human dignity requires suspension of the rabbinic level prohibitions so that they may experience intimacy and create families recognized by the Jewish community. For this reason we wrote in favor of the creation of ceremonies of recognition of loving, exclusive, and committed same-sex partnerships. We acknowledge that these partnerships are distinct from those discussed in the Talmud as “according to the law of Moses and Israel,” but we celebrate them with the same sense of holiness and joy as that expressed in heterosexual marriages.

  2. What about ahteists and agnostics? Do they not get to play either?

    The problem is that the .gov is in the marriage buisness at all. Which from a long term romantic/companionship basis is fundamentally creepy. “Our love needs the blessing of the State!”

    And from your view of it being a sacriment of religion. it is even more profane and upsetting. It’s akin to the state saying “Why yes we can say who can and cannot be baptised. And those who can get certian tax breaks!”

    I’m certian that the State will gleefully presecute those that fail to match the official ideology (See IRS). But that does not mean that certain consenting adults should be denied the same contractural benifits as other consenting adults.

    1. What about ahteists and agnostics? Do they not get to play either?

      Not just atheists and agnostics. Let’s not forget all of us whom follow a religion that’s fully supportive of same-sex unions… Of the top of my head, there are the ~5 million American Conservative and Reform Jews.

  3. I’ve long held the opinion that when we’re talking “marriage”, we’re really addressing two separate items with one term: “marriage”, as a faith-based definition, and the “civil contract” thereof, as recognized by the State. With very few exceptions, they are completely separate issues, but they tend to get clumped together and equated in the public discourse.

    Personally, I think the government should stay out of defining what “marriage” means, and the churches shouldn’t get to define who can sign into a “civil contract” (although they CAN decide which ones they’ll recognize, from a faith-based point of view). The only real crossover comes with the official presiding over the marriage ceremony, who also serves the dual role as a witness to the contract signing.

    Does this open the possibility of polyamorous unions? Yes, and the contracts’ provisions about benefits, estate transfers, and “divorces” could get … interesting. But as long as all participants are consenting adults and the contract treats them all fairly and equally (enough to agree to and sign it, anyway), is that really a problem?

    Basically, if we’re going to treat the ability to “marry” whoever we choose as a “right”, we should be treating it the same way as gun rights: a person can choose not to exercise their rights, but they cannot infringe on another person’s rights.

    (And as far as first cousins and siblings marrying and producing inbred children, there are some sufficiently compelling health reasons for the State to strongly consider continuing to ban those unions.)

    1. Aye.

      But to be devil’s advocate would the State be able to ban said unions? Given that under the state’s perview said unions are purely estate and benifits and asset pooling?

      Procreation does not fit into it. Since marriage is not a prerequesite for procreation. Even when it comes to responsibility of resultant issue in the eyes of the law.

      There’s also the question of exclusivity. I suppose from a taxation standpoint one could argue that a person could only be in one civil union contract concurently. That would at least prevent people daisy chaining marriages (poly or otherwise).

      1. Jack, your last paragraph is the only remaining argument for prohibiting any form of marriage between two consenting, fully sovereign adults. _Financial_ benefits, whether taxation related or insurance related.

        Otherwise, there is no legal argument one can make that can logically stand between ANY consenting adults invoking a right to marry each other, including what are now prohibited as incestuous marriages and/or poly marriages.

        Likewise, this ends justification for _legally_ prohibiting any sexual conduct between two consenting adults (poly, incestuous, etc.) could only be _legally_ prohibited where there is an obvious governmental critical interest and no lesser way to achieve it. Prositution bans probably could stand, as well as sex discrimination laws and even non-discriminatory “quid pro quo” ethics rules based on the “less powerful” party offering sex in exchange for favorism (basically, the “sex offered uphill” bans are antibribery rules).

        Military sexual rules are not based on morality so much as they are based on “conduct determental to discipline and order” — banging your subordinates, or banging you co workers’s spouses has a documented effect on your unit’s abilityt to carry out its legal role, in a degree and quality not comperable to civilian employment. So military prohibitions against fratnerization or adultery involvng SOs of other servicemembers should stand review under this standard.

    2. Marriage has, at its essence, a procreative expectation (which may never be fulfilled in a particular union of man and woman, but which exists by nature anyway).

      Once that expectation has been excised from the legal definition (as SSM necessarily does), there is no longer any defense against future DOMA-based ‘equal protection’ claims for recognition of consanguine or polygamous unions. The only arguments against those involve potential harms toward offspring, but you have already eliminated the principle that offspring are to be expected in a recognized union. A hypothetical petitioner can claim that his intent not to procreate renders his consanguine union exactly equivalent to SSM.

    3. Points taken, but what if the State, or Congress for that matter, claimed a “compelling interest” in keeping marriage solely “between one man and one woman in holy matrimony for life”? If they can use that principle to stop incestual and plural marriage, why can they not use it to stop sodomite marriage? Indeed, Comgress did do that (to Utah territory) and the supreme Court, in Murphy v Ramsey, 114 US 15, 1885, sanctioned such authority by both Congress (over territories) and the States! The pertinent passage follows:

      “For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.”

      The supreme Court in 1885 declared the restriction of marriage to a man and a woman to be “wholesome and NECESSARY” to “take rank as one of the coordinate states of the union.” [emphasis mine]

      I believe the court has opened a can of worms, and only a hideous mess can result.

      Respectfully, Arnie

      1. Well, yes. There have been lots of bigoted laws passed. And even upheld by SCOTUS. That doesn’t mean we can’t fix that, later.

        I mean, heck, in 1857, the Supreme Court said that no person of African descent, whether emancipated or slave, could be a citizen of any state, because “It would give to persons of the negro race, …the right to enter every other State whenever they pleased, …to sojourn there as long as they pleased, to go where they pleased …the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.”

        So, yeah. The Court has said lots of really stupid shit.

        1. Point well taken, and to which could be added Hirabayashi v US , 1943, and Korematsu v US, 1944! Dred Scott, to be fair, was written before the 13th and 14th Amendments repealed the Constitutional legitimacy of the “peculiar institution” and the Fugitive Slave Clause of Article IV, Sec. 2, Para. 3, but the two Japanese-American internment opinions supporting FDR’s infamous EO-9066 was totally without Comstitutional warrant and though never repented of by the court, Congress passed a civil rights act in 1987, signed by the President that finally declared the Court’s opinions officially wrong and revoked.

          However, nation-states around the world have always recognized the importance of the family structure to the stability of society and the national weal, as the court expressed in Murphy. When we come together in a social contract to provide for our common defense and general welfare, we make certain sacrifices as individuals and as a society to ensure our survival and promote the common good. Now I don’t pretend to be the arbiter of what standards compose the best social contract, but my travels to many countries show that they, like our Founders, did, at one time st least, consider faithful monogamy to be essential to national survival and success.

          That may now be changing, and perhaps for the better as you say, but history records no precedent where anything but monogamy has produced nations conspicuously dedicated to liberty and virtue. Polygamy was always the perquisite of royalty and autocratic governors. Even the Bible records the many wives of Kings David and Solimon, and the trouble that brought to their houses, and to their nation.

          My apologies, perlhaqr, I don’t mean to preach, but there is a give and take to the social contract, and such is apparently necessary for our continued national life and prosperity. Whether that will ever include legalized polygamy, I don’t know, but I’d say after yesterday, your chances just got a LOT better!
          Sincerely, Arnie

          1. However, nation-states around the world have always recognized the importance of the family structure to the stability of society and the national weal, as the court expressed in Murphy.

            Accepting that as a given for the sake of argument, how does that weigh in favor of preventing the formation of more family structures?

            1. My apologies, perlhaqr, I should have specified. As the court expressly acknowledged in Murphy, that structure comprised “the union for life of one man and one woman in holy matrimony.” As to why that prohibits adding to or modifying that structure…I confess, I don’t know. Maybe the historical record; perhaps the word “holy” referring to Jesus’ definition of marriage in 19:4-5. I honestly can’t answer your question. I guess I have just assumed they held to the conventional description of historical marriage and did not consider the possibility of others. To be quite honest, I really don’t think the possibility of there being any other description of marriage ever occurred to them. I know that’s an argument from silence, and certainly not grounds on which to argue against the DOMA decision – but I just can’t conceive of them giving unconventional marriage any consideration as a positive factor toward national well-being. That’s pretty weak, I know, but it’s all I have. You might have me on that, sir.

              1. The American people have, throughout our history, always preferred to err on the side of freedom. Allowing homosexual marriage to exist without any distinction from heterosexual marriage doesn’t impact heterosexual marriages at all, doesn’t impact anyone who chooses to remain unmarried, and makes life a helluva lot easier for homosexuals who opt to marry.

                Pretty simple really, as freedom usually is.

              2. No, I understood what you meant, I’m just saying… if “family structures” are a useful tool from a social perspective for creating cohesive and orderly society, does it make more sense–given that we are all in love with one another and there are no foreseen alterations to that in the future–that myself, my wife, and our girlfriend should remain cleft by the law, or that we should cleave all unto one another? Likewise, Y. and her husbands. Is there more “social stability” in the children of Y., D., and L. having legally recognized relationships with all three of their parents, or less? (Because I assure you, legal standing aside, those children all have three parents. Either one of those men would die defending their children, no matter the specific paternity.)

                1. I can’t contradict your statements with logic, I don’t have the statistics to refute your points, and the officials I quote from the past don’t give reasons that address your arguments, excluding of course their religious sentiments such as Washington’s “interposition of Providence,” and Adams’ contention that our Constitution is only capable of governing “a moral and religious people.” So I concede the argument to you, sir! And you’ll be happy to know, I have inched deeper in to the libertarian camp!! :-)

                    1. You get toasters for proselytizing??? We only get to put a notch in our Bibles! ;-)

                  1. I have inched deeper in to the libertarian camp!! :-)

                    Heh. Well, given that what you seem to be primarily objecting to in our parallel conversation below is unlibertarian behaviour on the part of the government, ultimately it wasn’t much of a jump. It was just a matter of pointing out that’s what it was. (A libertarian government would not force you to transact with anyone you did not wish to, thus eliminating that objection. But everyone in my family pays property tax, supporting the local public school swhich we make no use of, being childless, and because they cannot be legally married in the purview of the state, depending on which kid gets sick, a different “dad” has to go pick them up at school. Inconvenient and unequal treatment, despite the fact that they pay taxes to the government. I have no call to make any private individual do business with me, but if the government is going to extract money from me at gunpoint [I mentioned being anti-tax, right? ;)] I will bloody well insist that they treat all citizens with equal [and preferably high] respect.)

                    1. Doh. I got lost in my parenthetical. “And regarding Y.’s family, because they cannot be legally married…”

  4. To be clear regarding “process” – the portion of DOMA ruled unconstitutional simply lifts the ban on the federal government recognizing gay marriages as performed by the states. Marriages from those states which do allow it will now be eligible for federal benefits.

    It is still up to the individual states to determine if or how they will recognize gay marriage.

  5. The core problem with the decision is that it is based on the notion that homosexuals are a group that is unable to protect itself through the political process — that they are members of a “suspect class.” One of the factors that defines a suspect class is that, “They are powerless[2] to protect themselves via the political process. (The group is a “discrete” and “insular” minority.[3])”

    There might have been some basis for such a claim in 1970, when homosexuality was still a criminal matter in most states and was regarded with considerable horror by nearly all Americans. Maybe even in 1980. But today?

    The only argument used in this decision that does not equally apply to polygamy or incest is one: homosexuality is on the “isn’t that nice?” list while those other behaviors are (at least for the moment) on the “disgusting” list for liberals and libertarians.

    1. Those for gay marriage but against poly marriage always have a bit of “God intended Adam and Steve! Not Adam Steve and Eve!”

      (Saying Marriage is just two consenting adults is not to far from saying Marriage is just two consenting adults of opposed gender).

      And incest opens up a whole can of ick.

      But to be devil’s advocate: what about two adult sisters? Why can’t they marry? No chance of procreation (the issue with incestual marriage) there.

      If your answer goes “Well that’s morally wrong!” Well kudos you can go with the “Adam and Steve” folks.

      Yes, such a union *is* disquieting. But the women in the example could still do it without the peice of paper. And then this goes into incest laws.

      What a delightful can of worms!

      1. Interesting thoughts, Jack. Made me think about a sibling pair of great aunts I had when I was a kid (they both passed away when I was a teenager). These sisters lived their entire lives together … grew up together, went to college together, and lived together their entire lives. Neither of them “married” so they were considered “spinsters.” They both passed away in their late 80’s.

        I have no idea why those two sisters could not have been considered “married” for all practical purposes. They lived together, owned property together, had each other in their wills, and had given power of attorney to each other for end-of-life and estate disbursement purposes. The only thing they lacked was a license from the state … and a ceremony from their church. I doubt that they were sexual with each other … but nonetheless what they did or did not do in the bedroom is none of my business, none of the church’s business, and none of the government’s business. That was their business.

        But anyway … I guess what I am saying is that their relationship was akin to a marriage, and that I don’t feel there was anything morally wrong or disquieting about it.

    2. Your last paragraph is the sum-up of the debate I had with a family member on this. I think this ruling opens up the possibility of polyamorous unions at some future point in time, but right now “society” at large just isn’t ready for that.

      Like it wasn’t ready for inter-racial unions in the 50s and 60s (and maybe 70s).

      And like it wasn’t ready for same-sex unions in the 70s and 80s.

      I’m not sure if unions between siblings or first cousins will ever make it off the “Ewww!” list, but I think polyamorous ones eventually will. The TLC network had a show – “Sister Wives” – featuring a family of one man, three wives, and about 16 kids between them. It was fairly well-received by viewers, though admittedly, it can be hard to tell how many were “Isn’t that nice?” and how many were “Don’t want to stare at the freaks but I can’t look away”.

      1. You’re absolutely right, it just sucks how government acts based on what “society is ready for”, instead of what the constitution says the powers of government are limited to.

    3. “The only argument used in this decision that does not equally apply to polygamy or incest is one: homosexuality is on the “isn’t that nice?” list while those other behaviors are (at least for the moment) on the “disgusting” list for liberals and libertarians.”

      You’re using an awfully wide brush.

      1. I’m a minarchist, and I’ve got no beef with polygamy… Consenting adults entering into a contract with each other do not suddenly lose all sense because there are three or more of them.

        And before anyone invokes the “G-d says it is icky” argument, please review the First Amendment… the Books of Genesis, Exodus, Samuel, and Timothy…

  6. At the heart of this issue is the most egregious of all the taxes: the estate tax. The government should not profit from death, especially since that money has already been earned and taxed. This opens the door for polygamous unions between consenting adults- which also creates a nice tax loophole where you “marry” you child’s legal guardian just so they can keep the whole estate to help raise your children should both parents pass.

    1. Considering that polygamous unions were developed by multiple human cultures independently at multiple points in human history for the express purpose of preserving familial resources this is not a “loophole,” it is one of the intended benefits of marriage.

  7. Sebastian, you and several other commenters hit on a good question: What happens now if people want to marry cousins or siblings or several different people at the same time? Archer addressed that parenthetically above with reference to the authority recognized by a compelling state interest to forbid such unions. He’s probably right, but the problem is, the last time the Congress and supreme Court employed that tactic to criminalize Utah’s plural marriages, it claimed that the government had a compelling interest in restricting marriage to one man and one woman for life! As I responded to Archer, so also I present here the pertinent passage from:

    Murphy v Ramsey, 114 US 15 (1885)

    “For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end, no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment.”

    By repealing this definition of marriage and the compelling interest that authorized its prescription in supreme jurisprudence, I think the court today just opened the door to all manner of perversion, to be sanctioned by the state and compulsorily supported by the tax-payer.

    Hope I’m wrong!

    Respectfully, Arnie

    1. What you call “perversion”, I call “family”. And we pay far, far more taxes than we consume.

      Please explain how it breaks your arm or picks your pocket for my friend Y. to legally marry her two (at the moment, of course, religious ceremony only) husbands, and provide legal familial stability for the children she’s had with them? They run a successful business and also pay far, far more taxes than they consume.

      1. I acknowledge your point, perlhaqr, and I admit it’s appealing, but if I may ask, where (and more importantly, how) do you draw the line? Incest, man-boy love, bestiality? When both you and I have to pay higher taxes for the revenue lost from a wealthy fellow who married twenty of his friends of both genders so they could avoid estate taxes (remember the billionaire who married his very young ward so she could get his fortune tax free?), or to cover social security payments to a monkey some guy “married” out of “sincere love,” or to cover preservation costs for a corpse on Medicaid which also happens to be the “bride” of some necromancer, when do I transition objectively from unconventional family to perversity? Are examples too outlandish? “What you call perversion, another calls family.” Absurd? Thirty years ago I would have shrugged off as absurd any concern that yesterday’s ruling would ever occur in my lifetime. I’m not out to make anyone unhappy. If someone wants to live in union with their dog, so be it – but don’t make me honor it as a marriage against my conscience by requiring me to treat it as I would, to quote the Court in Murphy v Ramsey, holy matrimony. I am grateful, perlhaqr, that your friend does not cost me higher taxes. That IS a positive, for sure. But if I were to throw an important party and gave out two free tickets for each guest and their significant other, and she was one of the invited guests, would she cry “Discrimination!”, demand a third free ticket, and possibly take me to court? It sounds your friend wouldn’t, and I am again grateful, but what about those who would, and now apparently legally could! Why must I be forced to recognize and put up with the costs and hassles of catering to everybody else’s unconventional preferences. It’s madness! I know, these sound like wild hypotheticals, but again, 30 years ago….
        Truly, I mean no offense. I wish there were an obvious solution where we could all live and let live. As long there is a social contract, however, I reckon there are going to have to be sacrifices and compromises. Thanks for your input, perlhaqr.
        Sincerely, Arnie

        1. Arnie,

          Are you really using the estate tax as a justification? Taxing estates upon the death of the estate-holder is unjust and (borderline) tyrannical.

          Further, “lost revenue” suggests that you agree with the Democrats (and many Republicans) that taxes are “owed”, or that your money belongs to the government and you should be happy they only take their “cut” instead of all…

          To answer the two free tickets to everyone invited to the party question you postulated, which part of “two free tickets” isn’t clear? If that’s the way the party’s planned, then no-one has a right to any more than two.

          1. Jetfxr69: you are right! I loathe the estate tax and the idea that tax avoidance (or tax cuts) are an “expense” to the government! I repent of those insinuating comments and thank you for correcting me on those errors!

            Regarding the “free tickets,” I agree with you, but my point there was litigators don’t! Granted, a prucate oarty was a pior example, but say a public restaurant out of the owner’s religious conviction gave all women customers free meals, but charged all men the posted price (a high price to make up for the free meals to women), they’d be sued to oblivion. If they reversed that and gave only men the freebies, they’d probably be shut down! Instead of letting free enterprise boycotts change the man ‘s prices, people scream fo government bullies to force the change. Our society is becoming a “hey, me, too!” society where everyone claims a right to enjoy the same privileges as everyon else. You can’t freely treat your favorites special with your private business if it’s open to the public. Whatever happened to “We reserve the right to refuse service to anyone!”? I used to see those in establishments ubiquitously. If they were offensively discriminating, then boycott the place! font bring in government goons. Look, if I’m crying wolf and none of this occurs, guys I’ll be the happiest man on this thread; but I won’t hold my breath.

        2. Incest, man-boy love, bestiality?

          I am so sick of this particular trio of strawmen being put onto the field for me to tilt at. Marriage is a particular sort of legally binding contract, like any other contract it requires that all parties be consenting.

          Forcible incest is, by definition, non-consensual; Pedophilia and hebephilla involves minors, who are incapable of consent; bestiality involves animals who are incapable of consent.

          Adults who wish to enter into a contractual relationship, of their own consent, should be free to do so… Doesn’t matter much to me if its a contract to sell coffee futures or to become married.

          1. Mr. Ish,

            I wasn’t talking about “forcible incest,” sir, but consensual, as Jack pointed out above.

            I hope you are right about the age-of-consent-block on man-boy garbage, but there is an organization called NAMBLA that’s betting you’re wrong.

            I’ll admit government recognition of bestial marriages is a long shot, but then, thirty years ago nearly everyone I knew thought yesterday was impossible. I reckon to have twent-five years of sensible life remaining. I fear that will be long enough to determine if you’re right, or if my paranoia is justified.

            Respectfully, Arnie

            1. I am aware you referred to incest in general, I was taking your point and applying it more broadly to the three most common “slippery slopes” I’ve seen raised in objection to same-sex marriage. I might have been a bit unclear on that point, the Kindle Fire does many things well… but acting as a good platform for nuanced rhetoric is not one of them.

              Allow my to respond to your rebuttals in reverse order. NAMBLA is, to be blunt, a bunch of wackjob pedophiles and hebephiles that has existed since 1978… and has been opposed by the rest of the LGBT rights community since day one. Basing the treatment of other LGBT groups on the behaviors of NAMBLA is akin to letting the actions of the Westboro Baptist Church or the Branch Davidians determine how you want to treat the local Seventh Day Adventist parish that wants to reschedule their little league game so it doesn’t fall on the sabbath. NAMBLA is the lunatic fringe.

              As to my differentiating between forcible incest and incest, I guess I should own up to my own views on this being different from most LGBT activists I know. But this is because I tend to filter everything through my own personal filters: the Non-Aggression Principle and minarchy. Simply put, the Non-Aggression Principle says that the use of force or the threat of force to compel others to act against their will is wrong. Minarchy, or “minimal state libertarianism” says that the government should be limited to as little actual power as is essential.

              So, although I personally find incest to be downright disgusting… I see no real reason to use the force of the state to punish consenting adults from voluntarily bumping uglies. “They ain’t hurtin’ nobody,” to put it colloquially.

              (And really, lets be honest, the incest taboo is extremely strong in our society. These relationships are rare in the extreme… and will occur if their is a legal ban on it or not. Why give Officer Friendly the power to sniff around everyone’s bedsheets?)

              1. You know, I actually agree with most everything you said, Mr. Ish, and will trust your judgment on NAMBLA.

                I, too, don’t want the government, especially not the federal govnt, sniffing around bedrooms, either! I am a total federal libertarian. But as government becomes more local, and people of similar values associate in community, the Founders thought it prudent to reserve to them a more sovereign voice on what their local community values should be, to a point. When I think about it, that’s how the colonies and early States were originally formed. Then later, Constitution just tweaked that a bit, until the 14th Amendment.

                But while I concur that religious moralists have no business pushing the givernment into people’s bedrooms, I also believe, as I think you do as well, that “unconventionals” have no right to use the government to compel me to support, facilitate, or endorse their values or actions in violation of my conscience. The examples of the florist, the wedding photographer, or the Church that wouldn’t rent out its hall for an unbiblical wedding – will their freedom of conscience be protected here in the US after this ruling, or the next one (yesterday’s victors promised to be back in court pushing new and greater demands)? I admit I’m a paranoid conspiracy nut, but the past forty years, especially the last five, have given substance to some of my fears.

                But like you, I don’t want to regulate anyone’s bedroom activities or partner choices. Live and let live.

                BTW, I found your faith’s theological statements fascinating. This isn’t the forum for it, but I’d love to get your opinion on some doctrines. I may peruse that website.

                Blessings, Mr. Ish! (Does that mean “man” in Hebrew?)

                – Arnie

                1. I may have misrepresented myself, I’m a former Catholic in the very beginning phases of the process of conversion to Judaism. I’m certainly no expert, I just have the ability to cut-n-paste! ^_^,

                  As as government becomes more local, and people of similar values associate in community… which was an assumption of the Framers, IMHO, as well as being an assumption of minarchy. In libertopia, marriages wouldn’t be defined by the State at all… but that’s not what we’ve got. Marriage is deeply inbedded into our laws, and I believe the only smart thing to do is to err on the side of liberty. Render the government and the law as neutral as possible.

                  Under textbook Federalism, each of the several states has the power to define marriage… not the fed.gov.

                  1. “Err on the side of liberty” is my default position as well. And I see where this might be an issue where error is inescapable, and so that principle might apply. I see your reasoning, and am really quite comfortable with it. Would you consider marriage one of those issues where political error is always inescapable? Other than in a predominantly religious society, which we might have been at one time, I don’t see how it couldn’t be. And since we are clearly no longer a predominantly religious society…. Hmmm…I may have to rethink some things. It appears my efforts should not be on political solutions, but on evangelism, to realize a virtuous society.

                    You are a good man, Mr. Ish!!!

                    Sincerely, Arnie

                    1. I have no problem with people who chose to evangelize their chosen way of life as being the best possible path and seek to bring as many people into the fold as they can… As long as they are polite about it.

                      I am inherently distrustful of anyone who feels the need to compel others to believe as they do… and reflexively hostile to anyone that tries to ensure compliance by force. I don’t care if the subject of belief is a deity, lack of deity, a school of economics, marriage laws, gun-rights, or favorite pizza toppings.

                      I believe it is wrong to use force (or the threat of force) to compel another person to act against their will. That’s the non-agression principle in a nutshell and I see no conflict between it and Christianity.

                      But the non-agression principle certainly allows for people to try to convince someone to act by changing their mind. It’s wrong to point a gun at someone and say “give me your sandwich,” its wrong to have the state have a cop point a gun at someone and say “give him your sandwich,” but there’s nothing wrong with saying “Please, give me your sandwich and I’ll give you this cookie.”

                    2. My sentiments, exactly, Mr. Ish, on all counts! The politest evangelism is the one that waits to be asked, and Scripture prescribes that method (1 Peter 3:15). If I’m truly living for Christ, people who want that life will come ask, and invite me to answer respectfully. Compulsion is forbidden.

                      Your words are wise, Mr. Ish!

                      – Arnie

        3. [W]here (and more importantly, how) do you draw the line? Incest, man-boy love, bestiality?

          Ability to give consent. Incest is icky, but that in itself isn’t a good reason to ban it if the actors are both consenting adults. The argument will be made that the potential for offspring with higher rates of birth defects makes it “our problem” because we have to pay to take care of the children, but I would counter that the problem there is being forced to pay to take care of anyone’s children at all. (Obviously, people should likewise be free to donate as much of their money as they like to the care of defective children.)

          Monkey, dog, corpse, etc: inability to consent or otherwise engage in contract. Which, it should be noted, is a deficiency that our (as in, that of myself and my wife) girlfriend does not have.

          As for the taxation question, I’m a bad person to ask about that. I’m a radical libertarian. So I’m opposed to taxation anyway. And I’m not much a fan of the concept of the “social contract”, either, given that A.) It doesn’t seem to be written down anywhere for me to see, and B.) I certainly never had the chance to examine it before signing it, and for that matter C.) Never signed it at all.

          So… I kinda like live and let live. And if you’re handing out invitations to a party and one of your guests gets sufficiently butthurt to sue you for more invites, well, I’d disinvite that person entirely.

          1. Well stated, sir! And with good humor, too! I am becoming a more and radical libertarian myself as time goes on, although I’m not quite where you are…yet! Jetfxr69 set me straight on the tax issue. I recant my liberal diatribe on that. I don’t know what got into me. Estate taxes are especially evil – I almost lost the home farm along with my dear widowed mother when she left me for Heaven last January 9th – only days after they agreed to reinstate the estate tax exemption during “fiscal cliff” negotiations.. Otherwise, everything my Dad worked for would have been sold to the highest bidder to pay off the federal thieves.

            Regarding the social compact, all I can say is the Founders, Madison particularly, claimed such a contract predates the Constitution (Jefferson mentioned it in the form of charters which the King George had violated) and that the Constitution refined it (“more perfect union”). As to our not having signed it, I agree – reminds me of Braveheart explaining why his revolt was not treason because he had never sworn allegiance to the King. Didn’t spare him execution, though, for “Nevertheless, he is your king.” I suspect it’s like being born into your family: you didn’t sign on to them or choose to agree to your dad’s rules, but, “Nevertheless, he is your dad.” When we are born citizens of the United States, we are de facto under their jurisdiction, subject to their law. When we are of majority age, we can renounce our citizenship and leave, but if we stay, we tacitly agree to be subject to their rules. Unless of course we rebel/revolt, but I don’t think any is advocating that here…yet. :-)

            I reckon I actually agree with your position much more than I disagree. As you said, live and let live. I just expect the unconventional families to afford me the same freedom (I.e., not sue to force me to to provide services to them as I would to conventional families) if doing so unavoidably violated my sincerely held beliefs.

            Again, I really enjoy your humor! And I appreciate your positions, even more now than before.

            – Arnie

            1. Well, as a radical libertarian, I have radical (many would claim “insane”) views on the subject of private property as well. So, in an ideal (from my POV regarding property) world, people would be perfectly free to refuse service to potential paying customers for any reason they saw fit. Including raw, unadulterated bigotry, or even outright hatred. (I’m not accusing you of such, just giving worst case examples.) So, yes, if a Black Muslim shopkeeper (or Neo-Nazi one) wanted to refuse to serve a Jewish customer, or a white one, or whatever, he’d be free to do so. His financial loss.

              And I know lots of people find that position really really offensive, but… why would you want to do business with someone who despises you? Or even simply holds views you find offensive?

              My wife and I were recently in NZ, and stayed at a B&B in Whangarei. It was a fairly nice place. A week or so later, we heard on the radio a news report about a B&B in Whangarei that had recently been found guilty in some human rights tribunal of discriminating against a lesbian couple. It was the very B&B we had stayed at.

              Now, obviously I disagree from a libertarian POV with their being punished for what they choose to do with and who they allow into their own house. But I also strongly object to the fact that they aren’t allowed to openly advertise their position. Though we must have seemed like precisely who they wanted staying with them, I can assure you, after having heard that report, we’d have preferred not to have patronised their business!

              As for “Nevertheless, he is your King”, well, I do recognize the ability of the government to outnumber and outgun me. But that’s not the same as recognizing the moral authority to impose their will on me simply because of it. “Might makes right” is a concept that’s about as dated as the events in Braveheart.

              As for your comments about my tone, thank you. I have a tendency to become … strident when discussing such matters, and I’ve been working on trying to control that better, and be a more pleasant person to be around and converse with. I am gladdened to hear that my efforts have apparently been to good effect.

              1. Indeed they have – I have enjoyed learning from you. Your arguments are eloquent, well-reasoned, fair and not hypocritical. And persuasive!

                And I agree with your private property stand!!! In fact, I feared I might be alone on that position, so when I read your above comment, it made my day!!!!! I believe exactly as you do, that if we don’t like what someone is doing with his own business, we can avoid his business and let the free market punish him, not the heavy hand of government. Rand Paul took a lot heat for this same position, but I cheered him on. I am 100% with you on this, perlhaqr!

                Actually, I also agree with you on Braveheart – love that movie, btw – I wish he had escaped and continued to fight English tyranny. But my point there was, there are some authorities we find ourselves born into – our fathers, mothers, local constabulary, State and federal government – while minors, we have no real choice in the matter. Once of age, we can tacitly choose to remain under that authority, renounce it and leave, or renounce it and revolt, as Wm. Wallace did, as Patrick Henry, et al., did, and as we may have to do. But I think we have to make the renouncement, or we tacitly agree to be subject to the social contract our fathers made for us. When the time comes to renounce, I’ll be right there with you!

                In the word of Braveheart: “FREEEEDOOOOOOOM!!!!!!


                1. *nod*

                  I know Rand’s position was not well taken by many, and it’s definitely not a popular position. Ultimately, what one is defending is the legalisation and defence of discrimination. But, as they say in First Amendment circles, “popular speech requires no defence”. It’s the Westboro Baptists of the world that require defence to keep the bulwarks of free speech manned, not (usually) Mr. Rogers.

                  As I said above, given that the government taxes people, it is imperative that they treat all of their citizens equally. Consider it the flip-side of the social contract, perhaps. But since Adolf’s Neo-Nazi Wursthaus has no such ability to forcibly extract money from me (at least, not without my having a lot more popular support for shooting right back at him), I likewise have no moral authority to force him to take my money and give me sausages. (Or make bouquets for me, or photograph my wedding. ;) )

                  I admit, I find the behaviour of the aforementioned photographer and florist offensive. Having declared that they will not service homosexual couples, I would certainly choose not to patronise their respective businesses.

                  But I find the behaviour of the couples who sued them to be actively evil. Those couples are, in the end, declaring that they would have the business owners killed for daring to refuse their business.

                  (Chain of reasoning: Florist is sued for not providing flowers, and assessed a fine. Florist refuses to pay said fine, because she considers the levying of that fine immoral, being based on a judgement that she be forced to do business with people she chooses not to. State revokes florist’s business license for non-payment of the fine. Florist refuses to cease business operations because she considers the revocation of same immoral, see above. Stats sends men with guns [the police] to her place of business, to force her to shut her doors for operating without a business license. Florist resists shuttering of her business because she considers the attempt immoral, see above. Police attempt to arrest her for defying their order to shutter her business. Florist vigorously resists arrest because she considers the arrest immoral, see above. Florist is shot resisting arrest. Ultimately, florist is shot because she refused to do business with the couple.)

                  Every law, every regulation, every tool the government has at its disposal ultimately comes down to that, the threat of violence and death. Which is pretty much why I’m a libertarian. (See what I meant about my getting a little intense, sometimes? ;) )

                  1. Yes! Yes! Yes!! I agree with you on every step of that! Wasn’t it Jefferson who said the marketplace of ideas will weed out bad ideology without the need for government compulsion? And that only bad ideas need the government to sustain them? Something like that.

  8. Would somebody be willing to address Steve Ramsey’s above concern about the Christian florist and cake-baker who both, for sake of conscience, refused to photograph and bake for sodomite wedding ceremonies and both have been fighting lawsuits in court ever since (true stories; you can google them, but if you want, I’ll provide a link)? Specifically, will this ruling now make them criminally liable as well as civilly in a court of law, akin to a restauranteur who declines service on the basis of race? Is persecution now a hate crime against everyone except the Christians? Must Christians forsake their biblical faith, not to mention their religious freedom, to accommodate society’s departure from its historical social standards absent a new Constitutional Amendment that would criminalize such non-accommodation? (History proves the14th was never intended for this particular purpose.)

    I don’t have a problem with people boycotting a florist in response to his religious convictions, for that is how Jefferson said the free market works to change or punish unpopular opinions. But to use the strong arm of government to bully Christians into violating their sincere faith? That can’t be right in anybody but the most ardent fascist’s book.

    In Canada right now, some preachers are being legally chastised by their government for reading Romans 1:24-28, or 1 Corinthians 6:9-10 from their pulpits. Colleges there and some HERE are banning legal Christian clubs if they don’t open up their leadership offices to active, unrepentant sodomites, who refuse to agree that Scripture condemns sodomy. The cases in America are still pending, but will today’s ruling destroy a Christian’s right of free association? Am I right to be concerned, or am I paranoid delusional. Go ahead, I can take it.

    Sincerely, Arnie

    1. Currently gays aren’t considered a protected class for the purposes of discrimination federally, though some states protect gays as a class. You’re right to be worried. If they become a protected class, then yes, if you offer a public accommodation, you’d be forbidden from discriminating. I am very concerned about gay rights interfering with First Amendment right to free exercise of faith, but I think the appropriate way to deal with that is to grant people their religious objections to homosexuality, and not consider that to be discrimination. I’m very skeptical of the idea that discrimination law can reach private behavior.

      1. You beat me to it. I’m concerned that the court is walking a razor-thin tightrope between gay rights and religious rights, and it’s a greased-and-polished 90 degree incline on both sides. When “fundamental” rights collide, I think the only right answer is to let the states hash out individually which take precedence, but it’d take a judge truly dedicated to the spirit and letter of the Constitution – and truly willing and able to set aside their personal beliefs – to make that finding.

        Justices like that are increasingly in short supply.

      2. Well stated, sir! I was reading this morning about Canada’s criminal prosecutions of conscientious objectors to publicly serving what they sincerely believed were perverse violations of their faith. I’m not sure with mood of today’s mood and momentum the 1st Amendment will prevent these from happening here (keep in mind these are criminal, not just civil penalties):

        [ Canada Penalizes Christianity:

        In 2001 in Toronto, Ontario, printer SCOTT BROCKIE was fined $5,000 for refusing to print homosexual-themed stationery for the Canadian Gay and Lesbian Archives. The human rights commissioner in this case was Heather MacNaughton.

        In 2002 in Saskatchewan the StarPhoenix newspaper of Saskatoon and HUGH OWENS were ordered to pay $1,500 to three homosexual activists for publishing an ad in the newspaper in 1997 quoting Bible verses regarding homosexuality. The advertisement displayed references to four Bible passages (Romans 1, Leviticus 18:22, Leviticus 20:13 and 1 Corinthians 6:9-10) on the left side. An equal sign (=) was situated in the middle, with a symbol on the right side comprised of two males holding hands with the universal sign of a red circle with a diagonal bar superimposed over the top. Owens bought the ad and the StarPhoenix merely printed it. The Human Rights Commission’s ruling was appealed to the courts. In February 2003 the Court of Queen’s Bench in Saskatchewan refused to overturn it, with Justice J. Barclay saying the advertisement was an incitement to hatred. But in April 2006 the ruling was overturned by the Saskatchewan Court of Appeals (“Court Reverses Ruling,” WorldNetDaily, April 14, 2006).

        In 2005 a British Columbia KNIGHTS OF COLUMBUS council was ordered to pay $2,000 to two lesbians, plus their legal costs, for refusing to allow its facility to be used for their “wedding.” The human rights commissioner in this case was Heather MacNaughton.

        In January 2006, Catholic city councilman JOHN DECICCO of Kamloops, British Columbia, was fined $1,000 and required to apologize for saying that homosexuality is “not normal or natural” (LifeSiteNews, Jan. 19, 2007). In his remarks, which were made in a city council meeting, DeCicco was expressing the official doctrine of his church. The fine goes to two homosexual activists who brought the complaint. DeCicco was also forced to issue a public statement that his comments were “inappropriate and hurtful to some.” DeCiccco told LifeSiteNews, “I’m not against lesbian and gay people, but I don’t agree that I should have to endorse it.”

        http://www.wayoflife.org/files/706fe196bc5dd6068bb1a96eefc8b4be-109.html ]

        1. Canada, you may have noticed, is a foreign nation with a very different set of statutory laws, case law, and constitutionally protected rights. Not exactly the most useful evidence…

          1. A few year’s ago I might have agreed with you, sir, but in light of this President’s EOs, Congress’ healthcare reform bill, and the supreme Court’s ruling in Sebelius (Obamacare) last year, “reasonable restrictions” in Heller, and yesterday’s verdicts – I’m not so sure our Constitution is any more a block on tyranny against the conscience here as a lack of a constitution is in Canada.

            Just a month or two ago, a Washington State florist was taken to court for refusing to do the floral arrangement for a “wedding” she could not in good religious conscience serve. I tried to find updates on it on google but apparently the case is still pending. Washington law upholds unbiblical unions as marriage, and prohibits discrimination against sodomy. If yesterday made this national, then Mr. Ish, we are ALREADY where Canada is!

            Again, I truly hope you are right and I am wrong! Nothing would make me happier (well, other than a lifting of the ban on machine guns and live-fire tanks!). :-)

            – Arnie

            1. The florist was taken into court in a civil suit, she’s not facing criminal charges. One of the first things they taught me in paralegal school* is that “anybody can sue anybody for any reason… dosen’t mean they’ll win… or that the won’t get laughed out of the courthouse.” But if you can slap together a Complaint and scrape up the filing fee, you can file suit over anything.

              There is some grounds to that suit, if you actually dig into it, compared to some of the other drek that has been filed (care to guess how many crackpots have filed suit to get the cable company to remove the space-men from their lawns?) but that doesn’t mean it will go anywhere.

              *It’s just like a lawyer’s law school, but they teach us how to brew coffee and take dictation, instead of the best way to secure financing on a BMW or get an early tee time.

              1. Sorry I’m so late to respond. I enjoy your sense of humor here!

                You’re right about the Washington case being a civil suit that the plaintiffs might lose, and that anyone can sue for anything. I suspect, although I honestly don’t know, that the legal status of same-sex marriage in Washington produces a legal climate that is conducive to and supportive of these lawsuits. A similar suit was filed against a wedding photographer by a sodomite couple a few years ago in New Mexico where civil unions are legal. She lost and it cost her dearly – don’t know how the appeal went. Here’s the story:

                Christian Photog Sued by Same-Sex Couple
                CBNNews.com — Thu, 2009-04-09 16:02

                A Christian photographer in New Mexico was found guilty last week of breaking state law for refusing to take pictures of a lesbian ceremony.
                Elaine Huguenin of Elane Photography was contacted in 2006 by a same-sex couple wanting pictures taken of their “commitment ceremony.”
                After Huguenin told them she only photographed traditional marriages, the couple filed a complaint for discrimination against their sexual orientation.
                The case was taken before the New Mexico Human Rights Commission, which heard the case in January.
                On Wednesday, the state commission ruled that Huguenin violated the state’s Human Rights Act. An order was issued for the photographer to pay close to $7,000 for the couple’s attorney’s fees.
                The Christian-based Alliance Defense Fund plans to appeal the ruling.
                “Christians in the marketplace should not be penalized for abiding by their beliefs anymore than anyone else should,” ADF Senior Counsel Jordan Lorence said. “The Constitution prohibits the state from forcing unwilling people to promote a message they disagree with and thereby violate their conscience.

                THIS is what frightens me! I can only hope this was reversed on appeal.

                I’ve never been sued, but I can’t imagine the hassle, the stress, and the financial drain just trying to defend oneself against frivolous lawsuits, let alone lose one like this! And if Congress and the courts ever make this a criminal matter, Heaven help us!

                Thanks, Mr. Ish!
                – Arnie

                1. First of all, unless they were actually from a town named Sodom, they weren’t a “sodomite couple.”

                  The case is Elane Photography v. Willock, and was appealed to and argued before the New Mexico Supreme Court. Cert was granted 8/16/12 and heard oral arguments in March of this year. To the best of my knowledge, they haven’t released an opinion yet.

                  Elane Photography v. Willock is a tricky one… On the one hand, SCotUS has repeatedly delcared photography is a form of First Amendment protected speech and you cannot compel someone to speak. The First Amendment also clearly protects religious freedom… On the other hand, public accommodation laws in NM recognize sexual orientation as a class. Personally, I find the Cato Institute’s brief compelling. (But I admit to being biased since I tend to agree with Cato on most stuff anyway.)

                  Frankly, I suspect that way back in `06 Elane Photography probably was a bit too rude in declining her services and Willock was a bit too rude in responding and the whole thing has snowballed out-of-control. I mean, really, I know the first half-dozen photographers my ex-wife and I contacted when we were planning our wedding just said “Nope. Can’t do it.” and we moved on. C’est la vie.

                  1. Thank you, sir, for the update on this! And thanks also for correcting my terminology! I shall endeavor in the future to be more accurate.
                    Wow! Over six years and still no court decision! I can’t imagine the legal expenses. And I thought the same thing about the origins of this case. Someone, possibly everyone, was rude, or perhaps had an axe to grind. If so, after six years of legal battle, I’ll bet both parties wish they had done things differently when this all started.
                    A lesson for us all.

                    Thanks again!!!!

                    – Arnie

                    1. Eh, six years to go from trial court all the way up to the court of last resort isn’t all that unusual… and I’d wager that the actual photographer and would-be-photographees have long since stopped caring about the original dispute (I mean, the wedding would be 5+ years old now!). At this point, the case is the plaything of Cato, the ACLU, and other interest groups. That’s just sort of the nature of the legal system when it comes to constitutional questions.

                      District of Columbia v. Heller, for an example most readers of this blog have heard of, first went into district court in `03 and was heard by the SCotUS in `08.

                    2. What’s the old saying? “Justice delayed is justice denied?” Except in Anerican jurispriludence! :-(

                      Thanks for the info, sir!

              2. There is some grounds to that suit, if you actually dig into it, compared to some of the other drek that has been filed[.]

                How do you figure?

                (I presume we’re discussing the ethical position, not the legal one. Legally, yeah, she’s fucked.)

                1. Very, very roughly speaking but under the law, public accommodations (including retail stores and service establishments, as well as educational institutions, recreation facilities, government buildings, etc.) must be handicap-accessible and must not discriminate on the basis of race, color, religion, or national origin. I don’t think many of us have a problem, on the whole, with making sure a man in a wheelchair can use the bathroom at McDonald’s or forbidding a bank to hang a sign that says “No Irish, No Blacks, No Dogs” on its door.

                  New Mexico state law adds sexual orientation to that list, which is again something I think we all can agree with in broad strokes. It’s wrong to discriminate, yeah?

                  But it is equally wrong to force another person to do something they don’t want to do… Elane Photography’s freedom of speech and freedom to run her business as she sees fit is in conflict with Willock’s right to non-discrimination. A line needs to be drawn somewhere that can balance the two.

                  1. Ah, ok. You’re talking the legal position. Yeah, that’s Title II of the 1964 CRA. (I’ve read the same Cato paper you have and agree more with Miron’s rebuttal.)

                    I don’t think many of us have a problem, on the whole, with making sure a man in a wheelchair can use the bathroom at McDonald’s or forbidding a bank to hang a sign that says “No Irish, No Blacks, No Dogs” on its door.

                    Well, I did declare myself a radical libertarian… ;)

                    I think making private property subject to public accomodation law was a catastrophic error, for precisely the reasons detailed above. A very major (and sadly, legitimate) objection to the legalisation of non-traditional marriage would simply not exist were it not for that particular point of law.

                    And, as ever, why would anyone want to patronise a business owned and operated by someone who despises you? I do not have any desire to contribute to the financial success of someone who thinks I’m sub-human. (Again, not referring to anyone in this comment page. Just in the general case out there in the real world.)

                    1. As I’ve said elsewhere in this increasingly jumbled thread, I’m a staunch minarachist so I’ll be perfectly happy to buy the plot next to yours in Libertopia. But until the libertarian utopia does come about, we’re stuck in the country we’re in…

                      I tend to apply a series of three filters to all laws on the books or being proposed, in ascending order of scrutiny and how hard I will fight to get them repealed: Constitutionality, the Nonaggression Principle, and the “Jews in the Attic Test.”

                      A law that isn’t unconstitutional, but otherwise passes the NAP and “Attic” tests tends to get put in that spot in my mental filing cabinet labelled “Meh. I can live with it…” I mean, I may not like seat belt laws, zoning ordinances, or the Twenty-second Amendment… but I can put up with `em. I’ll vote against them if given the chance, sign the occasional petition, and grumble on the internet, but am unlikely to waste much energy as an activist against them.

                      A law which isn’t unconstitutional but does violate the the Nonaggression Principle will make me angry enough to get off my sofa ad “do something.” Like write letters, make phone calls, and actively support its repeal. A law which is both unconstitutional AND breaks the NAP will get me really hot-n-bothered… like gun-control or anti-sodomy laws.

                      A law which fails the “Jews in the Attic” test? Well, those are probably the only thing that would provoke violent resistance from me. So far I haven’t been tested on this count.

                    2. Perlhaqr may have the edge on this one, Mr. Ish. To be sure, if I knew there would never be a threat of my being forced by government power to support or endorse a lifestyle or behavior that deeply violated my conscience, I would withdraw all resistance to legal acceptance of private behavior. As I wrote a long time ago on this same thread, I don’t want to deny others their happiness, I just don’t want them to deny me mine. Live and let live. But the florist/photography cases tend to make me think these folks want to force this stuff down my throat, and have the government fine me if I don’t open my mouth for them to do so. That may be paranoia, but it’s how it looks to me.

                      I don’t have anything against the handicapped, but let the free market move me to accommodate them, not a federal gun to my head.

                      Dos that make any sense?

                      – Arnie

                  2. Hah. Now the thread is double jumbled, because we’ve nested so deep I’m going to have to leapfrog comments.

                    So, heh, I see you read Joe Huffman, too. Yeah, that’s roughly the series of tests I use to evaluate things as well, though I might weight them differently. Ultimately (*comes out of the closet*) I’m so radical a libertarian… that I have yet to hear a convincing philosophical argument against anarchism. So, “Constitutionality”, while clearly important from a practical perspective in evaluating laws in the context of “where we are today”, is secondary (for me) to the NAP in evaluating the moral component of things.


                    So, that preface done… I’m not entirely certain that Title II of CRA 1964 is constitutional. I think the conversion of private property to public accomodations could well be considered to violate both the due process and the takings clause of the Fifth Amendment. It certainly doesn’t pass the NAP test.

                    So far as I can tell, it is irrelevant to the “Jews” test.

                    1. I don’t think we’re really all that far apart, like I said, constitutionality of a law is a very low hurdle for me… and the NAP is a much higher standard. This leaves a lot of things in the “I can live with it.” zone…

    2. Yes, there’s probably a pretty good chance that eventually, sexual preference will be held to be a protected class like ethnicity and religion. (And indeed, as you say, it will likely mostly run one way; against the dominant in society. “Heterosexuals”, “Europeans”, “Christians”, “Males” will all be safe to discriminate against.) Title II of the 1964 CRA is an abomination against property rights in the US. But that’s been the case for nearly 50 years now.

      So you are right to be concerned about it, but I have to ask, how active was your concern about it before it was your ox being gored?

      1. I have to shamefully confess my concerns have usually been for those whose lifestyles I consider “responsible” or “acceptable,” and tend to shed few tears for the sufferings of those whose lifestyle choices I considered reprehensible or an affront to God or nature. I do repent of some of that, but some choices are so inescapably causative of adverse consequences, I still hold to a principle of “we reap what we sow.” I am trying to be more compassionate, as my Lord is compassionate and patient toward those, including me, who go astray, always hoping they will repent and return. I admit to having a long way to go. But please don’t let my personal shortcomings mitigate the impropriety of the government persecuting men of conscience for standing on their faith.
        Respectfully, Arnie

        1. I trust you are familiar with the poem by Pastor Martin Niemöller which begins, “First they came for the communists, and I didn’t speak out because I wasn’t a communist.”

          I don’t think most LGBT activists actually expect everyone else to approve of their life… but there is a lot of ground between “agree with me” and “agree not to treat me like an abhorrent freak.”

          As I recall, Jesus left some pretty specific instructions to his followers about treating your neighbors with love… even if you disagreed with them.

          1. Absolutely true, sir, you are right!

            Yes, I recall the poem; very poignant. And applicable here. Thank you!

            I like how you expressed the desire for agreement: not necessarily to agree with their lifestyle, but to agree not to treat them like “abhorrent freaks.” I sincerely desire to comply with that. My concern, emanating from the New Mexico and Washington lawsuits, is that sometimes they seem to be demanding the former, not requesting the latter. But as you mentioned in a different comment, we don’t know exactly what was said to start these suits. Perhaps the defendant treated the plaintiffs like abhorrent freaks. The narrative doesn’t give me that impression, but narratives can be incomplete. Hopefully I’ll take from all this Jesus’ commandment: to treat others as I should desire them to treat me! (Matthew 7:12)

            Blessings to you, Mr. Ish!

            – Arnie

            1. As a resident of New Mexico, I’ve got a pretty good grasp of the facts of that case. For me, the vast irony of the whole proceeding is that the NM Human Rights Commission found that the wedding photographer had violated the Human Rights Act with regard to the couple for refusing to photograph an event that wasn’t a wedding because the State of New Mexico doesn’t allow homosexual couples to marry. :-/

        2. I have to shamefully confess my concerns have usually been for those whose lifestyles I consider “responsible” or “acceptable,” and tend to shed few tears for the sufferings of those whose lifestyle choices I considered reprehensible or an affront to God or nature. […] But please don’t let my personal shortcomings mitigate the impropriety of the government persecuting men of conscience for standing on their faith.

          Enh. It was impolite of me to needle you personally. I may have taken the “perversion” comment a bit personally. Which, as mentioned above, is something I’m working on.

          I do repent of some of that, but some choices are so inescapably causative of adverse consequences, I still hold to a principle of “we reap what we sow.”

          I am, among other things, licensed as an EMT. There’s no way to avoid the conclusion “you reap what you sow” doing that. (Of course, a lot of people reap what others sow as well. :-/ ) But aren’t the consequences enough, without government intervention, when the behaviour in question only harms the actor? (Ultimately, it doesn’t really harm you if I shoot up heroin all the time. Yes, that presumes a libertarian government that won’t make you unwillingly pay for my medical treatment, and that I’m not stealing your car to pay for my habit. But those are both “crimes” that aren’t inextricably linked to the actual heroin usage itself.)

          1. I took no offense at your personal question, sir. It provoked some soul-searching I needed to do. Many on this blog know of me and now…they know me better, and that’s a good thing!

            To add to the “reap what you sow” principle:
            I’ve discovered the principle of cause and effect to be inviolable. If there is a debt, someone’s going to pay. When the government tries to insulate people from reaping the harvest they sowed, the tax-payer reaps it. If the government tries to give the reapings to someone who didn’t sow the crop, the tax-payer pays the bill. If someone lives a lifestyle that is conducive to an unwanted pregnancy or aids, for some reason they think I, the tax-payer, should pay the consequences, either government funded abortion, contraception, or aids research and medical care for the aids victim. I totally believe that’s wrong! I feel forced to pay for the consequences of others’ wrong choices.

            It’s not that I want those folks to suffer; they chose that fate for themselves, however unwittingly. I may even be inclined to help out in a way that I find conscionable. But the idea that they have a “right” to demand the government force me to pay for their problems when they incurred them by free choice contrary to the counsel of my faith which they ridicule…oh, it just tests my self-control, to say the least.

            But both you and Mr. Ish have really helped me through my frustration. To know there are libertarians with different faiths than mine but holding to the same principles of freedom – I am more than encouraged; I am inspired!

            To tell you the truth, I originally thought Wednesday’s rulings were the death nell of America, but you two, and the others in this thread, have shown me that the love of freedom isn’t just a Christian desire. It transcends religiosity and springs from the heart of every sentient being. You don’t want to burden me with your preferences anymore than you would want me to burden you with mine. That’s the law of Christ I follow, too (Mt 7:12).

            In short, I am encouraged!!! Thank you!!!! All of you!!!!

            With sincere affection,
            – Arnie

            1. *cough*

              I… well, it’s really good to hear that. As you are yourself assuredly already too painfully aware, a vigorous desire for liberty is depressingly rare amongst our fellow citizens these days. Frankly, I often despair for our future.

              So, yeah. I’m pretty inspired by our conversation here as well. :)

              (Dang, there’s a lot of dust here in my office this morning…)

              1. “I often despair for our future.”

                So do I, sir! Just about every time I hear a newscast. :-(

                But if we folks on this blog survive to raise a new nation from the ashes I fear this old one is destined to become, I think we’ll do all right – and I think we’ll be free!

                Have a geeat weekend, perlhaqr! You are a blessing!!!

                – Arnie

  9. Sebastian – you think “that if the Plaintiff and Government agreed with the result of the lower court, thus end[s] the controversy”?

    This ruling essentially kills the referendum/initiative process, the whole point of which is to force the government to do things the people want but the government doesn’t. If the politicians don’t like the way the people vote they just don’t have to show up in court to defend it and it loses. Want to pass a tax cut initiative like California’s Prop 13 – the politicians will just not defend it when some pro-government spending group sues and presto – no tax cut!

    Or how about this – pass an initiative requiring “Shall-Issue.” MAIG sues, the government refuses to defend – court rules in favor of MAIG – end of story. This is a very dangerous ruling – it ties the hands of the public and puts almost all the power of changing laws in the hands of the government.

    1. Now that I’ve thought about this more, I think it’s even worse than I originally thought. If the Executive doesn’t like any law which is currently under litigation, he can make sure that it is nullified by the courts just by refusing to defend it.

      That would apply to laws enacted under a previous administration, or a law passed over the Executives veto.

      I’d love for someone to explain to me how I’m overly concerned here.

    2. Frankly, the power of changing laws IS in the hands of the Government. In a representative republican system the “lever” the public has to change laws, or the behavior of the legislators and executive is the power of the ballot box.

      The referendum or initiative process is a “democratic” tool which is, nearly by definition, a mob-rule process.

      And yes, I know that living as an idealist means avoidance of some useful tools in the political toolbox. However, those same tools are prohibited to a realist who endeavors to live by a set of ideals, rather than living as though the ends justify the means.

      1. Because ultimate sovereignty rests in the people of each State, some (most?) States’ people retained for themselves the power of initiative/referendum as the ultimate check of unfettered State government power. I think that is the reason the Tenth Amendment includes powers reserved to the “States respectively, OR TO THE PEOPLE.” (emphasis mine) Although a staunch advocate of a representative FEDERAL republic, I personally laud this one State-level “democratic” process as a necessary and proper check on the tyrannical nature of more local government. Just as the States can initiate Amendments/Conventions to check federal powers, so also the people of each State can initiate checks on their State’s powers.

        It’s also why I weep when the federal courts (or when State courts appeal to federal interpretations, as here), absent a CLEAR constitutional warrant to do so, undermine the sovereign will of the people of a State.

        I’ve heard claims that this decision was a deferment to, or victory for State’s rights. Not true! The sovereign will of the State, expressed in its Constitution by Prop 8, was undermined by a State court appealing to a still untested interpretation of the FEDERAL Constitution. The supreme Court should either have validated that interpretation, thus making it apply nationally, or nullified the previous court ruling as unconstitutional according to California’s State Constitution. Instead they quibbled and left California with an apparently “unconstitutional provision in their Constitution (????),” and the rest of the States in limbo, not to mention the quagmire of litigation that will happen when people from conventional-marriage States visit California to marry, then return to their home State and demand full faith and credit for their “marriage.”

        A lawyer’s paradise indeed!

        Perhaps, because of its convoluted, interstate, interdependent nature and effects, this is one issue, like the institution of slavery, that SHOULD be decided by three-fourths of the States through the Article V process. Then it’s done, final, and clear! Until then, the courts should defer to the laws of the people. For any judge to say the authors of the 14A were protecting this “right” is laughable, and to a man those authors would rise from their graves and beat these stupid judges silly!

        If we’re going to do this, then let’s do it right, as they did with slavery. Propose a XXVIIIth Amendment and submit it to the States for ratification. While we’re at it, propose a XXIXth for abortion, too. If this is truly supremely important to America, then let’s make it supreme law instead of the capricious opinion of five judges.

        Then maybe all this expensive, rancorous, and factious litigation can stop, and we can be a great nation again!


  10. As a practicing Catholic, I can honestly say that I don’t give one rats a$$ what other people do with their naughty bits. I am neither their judge nor jury. I will abide my teaching and my conscience. I don’t get in other peoples faces about politics, religion, or “perpetual victims rights”. I also don’t allow ignorant loudmouths to back me down on issues that they lip-sync.

    That said, I frequently get annoyed at how much time and money is wasted in congress over trivial issues.

    What happened to unemployment, education, states rights, fiscal discipline, national sovereignty, and freedom? Are they all outdated concepts now, or just racist?

    The enemy is within; it’s called PC and its pride and arrogance are astounding.

  11. I’m just throwing this in for discussion purposes, but, weren’t “religious rights” as balanced against civil law effectively put to bed when it was decided that Quakers and other religiously motivated pacifists couldn’t decline to pay that portion of their taxes that go to support war?

    And, that addresses religious convictions that have stood for hundreds of years with some consistency. I’m wondering (sincerely) how latter day morality should stand up against that example. For example, the example of the anti-gay bakers and florists; Scripture may suggest (or demand) that male gays be stoned or whatever, and say the deity abhors them, but does not to my knowledge speak to doing commercial business with them. So, that would suggest an ethic that was discovered at about the time the gay rights movement started. It would hardly seem to stand in comparison to the Quakers unsuccessful stands against paying war taxes.

  12. Here’s a thought…

    Is marriage something that we (society) define or is it something that we describe? In other words, is marriage a construct of society that is otherwise foreign to the natural order, or is it a description of something that that pre-dates organised society and laws?

    An example might be a Chapter-S corporation. This was thought up by society and defined to be something in particular. This is not something that existed before being defined and so can be re-defined anyway we choose. Is this similar to what marriage is?

    Alternatively, is what we call marriage (long term union of heterosexual couples) a feature of the world long before society (ie. the law) gave it a name?

    If it is something defined, then seems to be it doesn’t mean anything in particular at all and we can choose to define it any old way we want. Man-Woman, Man-Man, Woman-Horse, 6 men – 4 women. Doesn’t matter.

    If, however, this is something that is described, then it can’t be logically changed to be something that it is not any more than water can be defined as some type of metal.

    In either case, what is the compelling reason for any government involvement at all? Does/should society, via government, care who you love? Do they care who you live with? Pledge your undying loyalty to? Not anymore than they should care about who you or I play tennis with or who my best buddies are. These are all irrelevant relationships to society.

    The only reason government would have any compelling interest in marriage, as traditionally described, is that this is the only relationship that as a group, as a rule and by nature produces the next generation. This, it seems to me, would be the only reason to promote, protect, license and regulate a relationship. If not for this, government should stay out of our relationships.

    1. I think you, as well as many others above, have landed on the most compelling question; why it is government’s business in any way at all?

      1. Because it is what it is. Marriage was just sorta assumed to be the state’s bailiwick in 1789… since it had been since time immemorial… and no one really noticed that design flaw until the 1930s when some states got around to playing “Eugenicists & Allies.” (Which is like “Axis & Allies” with a real body count and 33% more Hitler!)

        So here we are with “marriage” tied into a few trillion odd lines of the federal code, state laws, and civic ordinances… its a helluva lot easier to just make this tiny adjustment to what we mean when we say “marriage” than to rebuild the entire code from scratch.

        1. I think that’s it! Sir, your comment about the “assumed bailiwick” brings to mind something I read or heard in my admittedly limited education that the assumption of which you speak was that the family was the building block of both society and the state, and therefore that the States had a vested (compelling) interest in promoting and protecting the idea of family for sake of everyone’s survival and success. I definitely remember reading or hearing that! You know, I need to research that and see if I can come up with actual documents or quotes that support that contention. Hopefully, I’ll be back. :-)

          1. Ah, yes, but that just brings up the whole “what is a family?” argument, doesn’t it? Just in the good ole US of A we have single-parent-and-kid(s) families, two-parents-and-kid(s) nuclear families, grandparent(s)-and-parent(s)-and-kid(s) families, childless couples, step-parents, and so forth…

            Any given community college Intro to Anthropology course is going to give you dozens of other, fairly common and deeply traditional, forms of family: polyandry, polygyny, clans, tribes, line marriages, and on and on and on. You quite literally fill a library with this stuff. Heck, open your Bible to Genesis or Exodus and just check out the family structures of any of the Biblical Patriarchs, very little resemblance between them and “Ozzie and Harriet!”

            Best, I think, to keep the state out of it as much as possible. Treat a marriage contract as just that a contract, cut and dry, and unemotional. Leave the people free to attach whatever social, emotional, or religious weight to it they chose. But as far as the taxman or the congressman needs be concerned, its none of their gorram business.

            1. Wow, it is a bit complex, isn’t it. Haven’t had a chance to look for sources of the “compelling interest in the family,” yet, if there even are any. My inclination is to go with you in the direction of more freedom. Let me just see what I can find out about the above first. Between answering comments and work, I’m a bit frazzled here. :-/

  13. But, not to tread on too-worn ground for an analogy, it was also assumed (and codified to some extent) in 1789 that some people were racially inferior. Those of us of a certain age can remember first hand what a shock to the system it was when people began to question why, in 196X, it was still considered the business of any government to enforce that belief. And shock though it was (some of us got to watch cities burning) the change was implemented.

    I would suggest that the current slow and painful wrenching of The State’s definition of marriage may be a lot more damaging than just asking the more fundamental question.

    1. Your absolutely right! The court should have ended this discussion one way or the other. Wednesday’s decision only ensures years of continual legal probing and expensive litigation and expensive lawsuits – a lawyer’s paradise! Hmmmmm…methinks there’s method to their madness!

    2. You’re absolutely right! The court should have ended this discussion one way or the other. Wednesday’s decision only ensures years of continual legal probing and expensive litigation and expensive lawsuits – a lawyer’s paradise! Hmmmmm…methinks there’s method to their madness!

      1. I’d rather have fundamental questions about our society’s laws be decided slowly over a few decades while a few hundred lawyers collect healthy fees than have it be decided by civil unrest, civil war, or revolution.

        1. True enough, Mr. Ish! As a Civil War Between the States buff I have read enough accounts of that bloody horror to know that can only be a last resort, “while evils are sufferable,” to quote Jefferson. But I still don’t like the thought of lawyers feasting on our inability to come to terms. But yes, you are right. Still better than civil war.
          – Arnie

  14. Can I just say, slightly off-topic, how downright enjoyable the discussion in the commentary thread has been? Across most of the internet where discussion of DOMA has come up, John Gabriel’s Greater Internet F**kwad Theory is in full-bloom.

    Since this blog attracts a number of regular readers from both social conservatives, radical libertarians, LGBT types, and even a few liberals… Well, I expected to find some serious “GIFTs” in this thread. I am happy to say it hasn’t happened… Hell, no one has even gotten Godwin’d yet!

    Go us.

    1. I second Mr. Ish’s commendation, Sebastian. I have learned a lot here, as usual. Thanks so much for your blog!!!

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