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George Will: Marriage debate forces Supreme Court into unknown territory

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  • Mike in Cedar City Cedar City, Utah
    March 17, 2013 8:40 a.m.

    If the "equal protection" argument holds up in the Supreme Court for legalization of same sex marriage, it may well open the door for those that argue for legalization of other forms of marriage, like polygamy. Now, who might be worried about that eventuality? I wonder?

  • Maudine SLC, UT
    March 17, 2013 9:32 a.m.

    The only people trying to use social science in the marriage debate are those who are trying to prohibit same-sex marriage - and if the claim that there is not enough evidence to support same-sex marriage is to be believed as accurate, you must also accept the reverse claim that there is not enough evidence to prohibit same-sex marriage.

    The arguments for same-sex marriage hinge on treating all couples and families the same by allowing marriage regardless of the genders of the two individuals involved.

    And before the same old arguments are brought up -

    There are physical reasons for limiting marriage between closely related individuals (although marriage is allowed if they cannot procreate).

    Marriage between more than two people raises policy issues that do not exist when there are only two people.

    Children, non-human animals, and inanimate objects cannot consent to contracts.

  • EJM Herriman, UT
    March 17, 2013 9:30 a.m.

    Too bad more of our posters online don't make comments on George Will's columns. He is thoughtful and rational. Maybe that's why. He makes sense and that scares them.

  • George New York, NY
    March 17, 2013 10:31 a.m.

    two things Mr Will first just because the mountain of research we have spanning back almost three decades on this subject does not agree with you does not mean it is not conclusive. Second it is not the responsibility of those seeking equality to prove that their behavior will not cause a harm to society, claiming they have such a responsibility is ac-an to claiming it is your responsibility to prove that your choice to drive a car instead of ride a bus does not cause a social harm before we let you drive.

  • George New York, NY
    March 17, 2013 10:55 a.m.

    @mike
    If people want to make a case for polygamy then I say they should have their chance but to use that as an argument against gay marriage is simply a red herring just as it was when that argument was used to oppose interracial marriage.

    @EJM maybe you should actually respond to maudine's post that was present when you posted your comment because right now the fact that you ignored it kind of makes your comment rather hypocritical.

  • 10CC Bountiful, UT
    March 17, 2013 12:41 p.m.

    Haven't we seen this movie before, with interracial marriage? There was plenty of doubt about the effects that change would unleash.

  • RAB Bountiful, UT
    March 17, 2013 12:46 p.m.

    The Federal government should legalize gay marriage. That way, the government will finally officially proclaim that all American people support and approve of sexual intimacy between people of the same sex. We will finally legislate morality, but not in favor of religious people. Because that is what our government is for. It's purpose is to reject the moral beliefs of one group of Americans in favor of the moral beliefs of another group of people. I hope they pick my moral beliefs next.

    Or, I suppose we could eliminate the need for government-endorced same-sex marriage and instead find a way to give gay couples all the applicable legal rights they deserve without proclaiming that all Americans support the morality of homosexual intimacy. Nah. If comments I keep reading are to be believed, gay people won’t be able to love each other if we do that. We would suddenly all become hateful and intolerant of gay people and demand that all gay couples be sent to prison for having loving committed relationships that are not officially recognized and supported by the government.

    At least that is what same sex marriage advocates apparently want everyone to think.

  • Tolstoy salt lake, UT
    March 17, 2013 2:44 p.m.

    @RAB
    Look up the history of seperate but equal and get back to us.

  • amazondoc USA, TN
    March 17, 2013 2:54 p.m.

    I think it's important to reread Will's last paragraph:

    "If California's law is judged by legal reasoning, rather than by social science ostensibly proving that the state has no compelling interest served by banning same-sex marriage, the law may still be overturned on equal protection grounds. But such a victory for gay rights, grounded on constitutional values, and hence cast in the vocabulary of natural rights philosophy, would at least be more stable than one resting uneasily on the shiftable sand of premature social science conclusions. "

    He's actually arguing AGAINST the social science arguments, and FOR the legal/Constitutional arguments. And I think that's a good thing. Banning same sex marriage IS unconstitutional, and we don't need to look any farther than that.

  • Christian 24-7 Murray, UT
    March 17, 2013 5:13 p.m.

    Redefining marriage to include homosexual couples means that every mother is being told that she isn't really important to her children, and every father that he isn't really important to his children. Under such a ruling each parent is totally replaceable. (Natural rules of reproduction deny such a suggestion.)

    So our society is being asked to validate the small homosexual minority at the cost of invalidating the vast majority, including all parents and every child who depends on those parents.

    The child, the parent, and the spouse in me finds that outrageous and abominable!

  • Mike in Cedar City Cedar City, Utah
    March 17, 2013 5:17 p.m.

    George, you misunderstand my intent. I was just trying to point out that in this state (Utah) the fear and opposition to same sex marriage may be based upon more than religious dogma or fear of change. I agree with your comment, but I can't help but wonder if the Supreme Court will consider the implications of any decision based upon equal protection that finds denial of same sex marriage to be unconstitutional. In Utah, given its religious history, any expansion of the definition of lawful marriage is potentially very explosive.

  • Tolstoy salt lake, UT
    March 17, 2013 5:37 p.m.

    @amazondoc
    I don't see it as one or the other the social sceonces support the legal arguments in that they prove there is no known social harm to allowing gay marriage which really is the only real possible legal argument rhere is to restricting gay marriage.

  • amazondoc USA, TN
    March 17, 2013 9:20 p.m.

    @Christian 24-7 --

    "Redefining marriage to include homosexual couples means that every mother is being told that she isn't really important to her children"

    You could just as easily say that allowing brunettes to marry means that every blonde is being told that she isn't really important to her children. Neither is true.

    George Carlin said it best: if you don't like gay marriages, then don't have one.

    Nobody is forcing anybody to do anything they don't want to do. We are simply insisting that **everyone** should be treated equally, in conformation with the US Constitution.

    "The child, the parent, and the spouse in me finds that outrageous and abominable!"

    And you are within your rights to find it outrageous and/or abominable if you desire.

    However, you do NOT have the right to violate the principles set forth in the Constitution. And one of those principles is equal protection under the law.

    @Tolstoy --

    I agree with you that the social sciences arguments mostly work in our favor. However, I also agree with Will that they can be slippery arguments to deal with, and that depending on the Constitution is a more stable foundation for our position.

  • Tolstoy salt lake, UT
    March 17, 2013 9:35 p.m.

    @christian
    I am a father and I do not see how gays being allowed to marry and give their children a more stable home invaladates me as a parent. I guess maybe I am not insecure enough to think other parents being effective means I am worthless.

  • Christian 24-7 Murray, UT
    March 17, 2013 11:28 p.m.

    Tolstoy,

    So if you were replaced with a second mother, your children would suffer no loss? How sad that you think so little of your parental contribution.

    I don't know you at all, but I think your children benefit from having you, their father, in ways that having a second mother could never adequately fill.

    I think you and a bro raising your children could not provide the quality of upbringing that you and your wife could.

    This is assuming that everyone is giving their best to the children, which is the ideal we should be shooting for.

  • amazondoc USA, TN
    March 18, 2013 12:53 a.m.

    @Christian 24-7

    "I think you and a bro raising your children could not provide the quality of upbringing that you and your wife could."

    Look at it this way -- I believe that children are better off in homes with Democratic parents than in homes with Republican parents. That doesn't give me the right to ban Republican marriages, does it?

    Or -- I believe that children are better off with parents who finished high school than with parents who dropped out. Do I therefore have the right to ban dropout marriages?

    Both times, the answer is an obvious "NO". Our personal beliefs do not override the civil rights of others. We are not given carte blanche to violate the US Constitution just because we think we could do something better than somebody else does it.

  • Tolstoy salt lake, UT
    March 18, 2013 8:10 a.m.

    Christian
    Again, I am not so insecure in my marriage that I think if gay marriage is legalized my wife is going toe leave me for another women. I do however know based on the research that two mothers or two fathers can be just as effective at raising their children as my wife and I.

  • Tyler D Meridian, ID
    March 18, 2013 10:10 a.m.

    Does it strike anyone else as strange that Mr. Will is promoting extreme caution regarding a policy that MAY prove harmful to society (because, in his words, the science is inconclusive); and yet when it comes to an issue like climate change, that logic is completely turned on its head (by conservatives)?

    If we should proceed with caution regarding gay marriage until the science is more conclusive, why do we get the inane chants of “drill baby drill” from the same folks regarding a matter of public policy when not only the consequences of our actions in that area are likely to be much more harmful (i.e., the planet vs. two lesbians living next door), but the science is actually way more conclusive that our actions are harmful?

    Gay Marriage – science inclusive = do NOT act

    Climate Change - 97% of climate scientists think we are causing climate change = ACT recklessly (i.e., burn even more fossil fuels).

    Why does the logic of caution apply to one policy but apparently not the other?

    What am I missing here?

  • Maudine SLC, UT
    March 18, 2013 11:55 a.m.

    @ Christian: Here is the main problem with your argument: Marriage is not required for raising children.

    The options for the children being raised by same-sex parents are not heterosexual parents or same-sex parents - the options are married parents or unmarried parents. Prohibiting same-sex marriage does not prohibit same-sex couples raising children - it prohibits those parents from being married.

    A lesbian is not going to "go straight" because she cannot marry the woman she loves. Same-sex couples who want children are not going to decide not to have children because they are not married. Allowing same-sex marriage is not going to cause straight couples to divorce and enter into same-sex marriages. (Unhappily married bisexual individuals may divorce and may hook up with someone of the same sex, but that can happen with or without same-sex marriage.)

    Nothing that you are saying has any bearing on the marriage debate.

  • Christian 24-7 Murray, UT
    March 18, 2013 12:04 p.m.

    amazondoc

    If you want to talk constitution, where does the constitution give anyone the right take another couple's child? It is not a right, any more than marriage is a constitutional right. Neither is addressed in the constitution.

    Incidentally, marriage is a religious institution, the oversight of which was seized by the government. Religious marriage definitely existed in this land before it was a country with a government. Religionists, for the most part, would be satisfied if marriage were given back to the churches and the 'state' licensed civil unions instead, which would cover all the monetary and legal issues for all couples, heterosexual and homosexual, and even other types of relationships, without prohibiting the free exercise of religion guaranteed by the first amendment. Those churches which approve of homosexual marriages could perform them. This is a reasonable, fair, and respectful of all rights and freedoms compromise. But the homosexual community rejects this compromise. It doesn't allow them to oppress all religions into performing their marriages.

    The religious people are a group that you also seem to wish to deny the rights you so adamentely insist be given to everyone else. You promote hypocrisy, not equality.

  • amazondoc USA, TN
    March 18, 2013 5:26 p.m.

    @Christian 24-7 --

    re: stealing children --

    Nobody is trying to steal anyone's children.

    There are millions of orphans praying for adoption. If gay couples want to adopt, they are not "stealing" children from anyone. They are providing loving homes for children in need.

    And if gay couples want to use artificial insemination, they are creating new life -- again not stealing.

    re: the right to marry --

    Equal protection IS in the constitution. Specifically: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ... nor deny to any person within its jurisdiction the equal protection of the laws."

    **EQUAL PROTECTION** means that you can't deny **any** legal rights or privileges to **anyone** just because you happen to disagree with them.

    re: religious marriage --

    Marriage carries many legal benefits, so of course the legal system is involved. If you go back to strictly religious marriages, you'll have to give up all the legal benefits when you reject the government's participation. You can't have it both ways.

    re: denying rights to the religious --

    Recognizing the rights of gay people to marry will not deny you ANY rights.

  • wrz Pheonix, AZ
    March 18, 2013 8:16 p.m.

    The US Constitution's Equal protection clause does not apply to marriage. In fact, there is nothing in the US Constitution that deals with marriage in any way, shape or form. Thus, the Supreme Court should have no jurisdiction in the matter, rule thusly and remand it over to the US Congress to address the issue. In fact it is really a problem that should be addressed by the several states only.

    The US Supreme Court's job is to rule on the constitutionality of a law. If the issue is not addressed in the Constitution, how can the court rule on it?

  • wrz Pheonix, AZ
    March 18, 2013 8:34 p.m.

    @Maudine:
    "The arguments for same-sex marriage hinge on treating all couples and families the same by allowing marriage regardless of the genders of the two individuals involved."

    No, no. The purpose of marriage is to provide maximum protection for children. And since homosexuals can't have children there's no need for such protection.

    The fact that there are benefits in the law for married people (for example tax law) should not drive the argument of who can marry whom.

    "There are physical reasons for limiting marriage between closely related individuals (although marriage is allowed if they cannot procreate)."

    The law has no right dictating marriage arrangements based on the chance of abnormal offspring.

    "Marriage between more than two people raises policy issues that do not exist when there are only two people."

    Of course it does... But those policy issues can easily be put out of the way by simply changing the policies.

    "Children, non-human animals, and inanimate objects cannot consent to contracts."

    Consent of children, animals, and rocks is a function of the law... which can be changed just as simply as changing the law re same sex marriage.

  • wrz Pheonix, AZ
    March 18, 2013 9:01 p.m.

    @George:
    "If people want to make a case for polygamy then I say they should have their chance but to use that as an argument against gay marriage is simply a red herring just as it was when that argument was used to oppose interracial marriage."

    Any argument for marriage beyond a man and a women is just as valid as an argument for same sex marriage.

    @RAB:
    Or, I suppose we could eliminate the need for government-endorced same-sex marriage and instead find a way to give gay couples all the applicable legal rights they deserve...

    What should happen is to remove all the applicable monetary rights that marrieds have. That would make it equal for all.

    @amazondoc:
    "Banning same sex marriage IS unconstitutional..."

    Sorry to tell ya, but there's nothing in the Constitution about marriage. And if you mean equal protection... All people have the same protection re marriage... just pick someone of the opposite sex to marry.

    amazondoc
    "And if gay couples want to use artificial insemination..."

    I've yet to see how artificial insemination of a male can produce a child. I could be naive.

  • Contrarius Lebanon, TN
    March 19, 2013 8:07 a.m.

    wrz -- The Constitution doesn't need to mention marriage specifically, any more than it needs to specifically mention housing or drivers' licenses. All of these (and many more things) are included under "privileges or immunities of citizens of the United States".

    Regarding the supposed purpose of marriage, infertile couples are freely allowed to marry. So, no, the "purpose" of marriage is not to protect children. The legal purpose of marriage is to create stable, committed relationships -- which has the end result of protecting children. Homosexuals have just as much right to legally recognized, stable, committed relationships as anyone else.

    Regarding consent, consent is an essential element of our entire legal system and it would be impossible to remove from the system. No, it would not be simple at all.

  • Tyler D Meridian, ID
    March 19, 2013 9:02 a.m.

    @Christian 24-7 – “Marriage is NOT a constitutional right, NOR is adoption, and are therefore not equal protection issues.”

    Your understanding of the Constitution is exactly backwards. Please read the Ninth Amendment below:

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    The government may not deny any right of the people unless authorized by the Constitution (as interpreted by the Supreme Court – which is why free speech does not give you the right to yell “fire” in a crowded theater).

    Based on this, I think the proper course of action would be for the SC to strike down DOMA and allow the States (i.e., the people) to do whatever they want. Any other action would be judicial activism.

  • Darrel Eagle Mountain, UT
    March 19, 2013 2:09 p.m.

    Tyler D

    Based on this, I think the proper course of action would be for the SC to strike down DOMA and allow the States (i.e., the people) to do whatever they want.

    ========================

    I understand where you are coming from, but what about the Full Faith and Credit Clause "Full faith and credit ought to be given in each state to the public acts, records, and judicial proceedings, of every other state;"

    I married my wife under Utah Law, however moving to a different State, my marriage still seen as in force, and I do not have to remarry. If a same-sex couple were to marry in Massachusetts, and then moved to Utah, what would happen?

    Something as integral in our lives as marriage needs to have a universal, across the board definition

  • Tyler D Meridian, ID
    March 19, 2013 5:21 p.m.

    Good question… perhaps they will let stand section 1 of DOMA or employ some other “Choice of Law” doctrine.

    The main point was that in a democracy, not letting this be decided by “the people” (which means at the State level, which also means it will happen over time State by State), we could be setting ourselves up for another Roe v Wade – an issue that divides people for decades because many will feel like they had no say in an outcome decided by a few activist judges. That is a bad precedent that we should not repeat. [Not much chance of that happening in the Roberts Court though.]

    In long run I think gay people being treated equally in all respects will be on much firmer ground if the national conversation can continue and let this issue get worked out in as democratic a way as possible. Heck, look how far public opinion has changed just in the last five years.

    In my view, 20 years from now this will all be seen as much ado about nothing, unless it’s decided by judges. If that happens, watch out…

  • Contrarius Lebanon, TN
    March 19, 2013 5:31 p.m.

    @Tyler D --

    I strongly suspect that the Supreme Court will end up striking down Prop 8 -- and if they do that, they will essentially be striking down ALL state bans against gay marriage. States aren't allowed to enact legislation that violates the US Constitution, no matter how much they may want to.

  • Pops NORTH SALT LAKE, UT
    March 19, 2013 9:44 p.m.

    Prop 8 was already struck down. Proponents of Prop 8 have requested a review of the case by the Supreme Court.

    As I read it the gist of the ruling overturning Prop 8 was the equal protection clause, but it wasn't as simple as that sounds on the surface. All applicants for marriage, under Prop 8, have precisely the same "right" (technically not a right, but an opportunity), which is that a man can marry a woman and a woman can marry a man. There is nothing in the marriage contract that requires love or sexual attraction. The question the judge asked was this: is there any benefit that accrues to the state of California as a result of the restriction that a man can only marry a woman, and a woman can only marry a man? In other words, he asked whether gender roles matter. His conclusion was that they do not, therefore the state can't make gender a condition of marriage.

    Unfortunately, this gets us back into the soup of social harm. I personally believe the judge was wrong in his assessment, but it's hard to guess whether the Supreme Court will go there.

  • Contrarius Lebanon, TN
    March 20, 2013 10:02 a.m.

    @Pops --

    "Prop 8 was already struck down. Proponents of Prop 8 have requested a review of the case by the Supreme Court."

    Right. I didn't state that clearly. I should have said something more like "I suspect the Supreme Court will affirm the rulings of the lower courts on Prop 8".

    "The question the judge asked was this: is there any benefit that accrues to the state of California as a result of the restriction that a man can only marry a woman, and a woman can only marry a man? In other words, he asked whether gender roles matter."

    IMHO we should use the standard of harm rather than benefit. Specifically: can we prove that there is any substantial harm caused by recognizing same-sex marriages? Our entire court system is based on the concept of innocent until proven guilty, after all. It seems reasonable that all US citizens should be given equal protection under the Constitution **unless** such protection can be proven beyond reasonable doubt to cause substantial harm to other citizens.