Kennedy’s Ruling in the DOMA Case

I’m still reading Justice Kennedy’s opinion in the DOMA case and I’m going to put some of my thoughts down here as I go. It’s important to remember that Kennedy was also the author of the two most important gay rights decisions in the history of the court, Romer v Evans and Lawrence v Texas, and this ruling draws quite clearly on his previous rulings on these questions. A couple of important ideas and themes in the new ruling come directly from the older rulings.

For example, in Romer, Kennedy wrote the opinion striking down a Colorado statute that forbid the state or any local government from protecting gay people from discrimination. And in that ruling, Kennedy argues that the statute cannot even satisfy the rational basis test because the only basis for its passage was “animus” against gay people and a desire to treat them as second class citizens. He uses similar language here:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare con- gressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. In determining whether a law is motived by animproper animus or purpose, “‘[d]iscriminations of an unusual character’” especially require careful consideration…

DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions ofmarriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the lawhere in question are to impose a disadvantage, a separatestatus, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States…

DOMA’s principal effect is to identify a subset of statesanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, ofboth rights and responsibilities. By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriagesare unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the Statehas sought to dignify.

And then there’s this very important statement from the ruling, pointing out how DOMA damages the children and families of gay couples:

And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…

DOMA also brings financial harm to children of samesex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.

The anti-equality side claims that they’re “pro-family” and concerned about children, but the opposite is true. They are actively seeking to harm families headed by LGBT people. They’re only “pro-family” when those families look like theirs.

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About Ed Brayton

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

  • Reginald Selkirk
  • cptdoom

    I was really expecting a DOMA overturn based on a narrow states’ rights basis, which might have gotten a 6-3 or 7-2 decision, so was pleasantly surprised to hear about the relatively broad ruling Kennedy issued. As Scalia rightly points out (in his otherwise pitiful self-serving dissent) Kenney has created the Constitutional basis to overturn state bans on same-sex marriage recognition – we’re just waiting for that case to come around.

    I would have loved to be a fly on the wall during the Justices’ conference on the decision. I wonder if Kennedy traded a larger majority for a broader ruling.

  • mikeyb

    religious liberty = keep your government hands off my sectarian tribalism and practicing discrimination within my sectarian tribalist setting.

  • Don Williams

    1) The thing that ticks me off about this subject is that all parties are acting in a two-faced, hypocritical manner.

    2) The ONLY reason the Government should have ANY say in marriage is to ensure parents carry out their responsibility to care for their children to maturity. Yet the highly important issue of child-rearing is getting ZERO attention from both the right and the left– from the religious idiots and the gays.

    Because the Democratic politicans are focused on giving oral sex to billionaire donors like David Geffen and the Republicans are pandering to their rural religious nuts. Nobody gives a shits about the children because children can’t vote and they don’t make campaign donations. And our two-faced prostitutes in the News Media know that –hence their dishonest framing of the issue.

    3) Yes — there are a lot of childless hetero couples out there and gay couples should be entitled to the same rights and privileges enjoyed by the non-gay couples. Whatever contracts two consenting adults draw up between them should be their business.

    4) And gay couples who bear or adopt children and rear them should be entitled to the same rights and privileges –including tax breaks — given to hetero couples who do the same.

    5) Children suffer incredible abuse and neglect in this country — part of it psychological. Child rearing should be one of the major functions of a civilization — not viewed with the contempt that is commonplace in the USA.

  • Don Williams

    And I dare any religious nut to argue that gay couples can’t raise children — given the horrible job being done by many heterosexual couples.

  • eric

    IANAL but that last paragraph you quote (on health and wills) is the area in which this case will provide a precedent for future legal cases that will create broad-based equal rights. It is easy to imagine cases where state laws not recognizing SSM come into conflict with federal law, and when that happens, federal law is going to trump and the state will be forced to recognize the marriage in practical terms.

    So, for example, let’s say a gay married couple moves to Tx. One of them dies. The family and spouse legally battle over posession of the deceased’s goods. Tx does not recognize the marriage, but federal law does. What are the courts going to say? Its a foregone conclusion: while there might be some craziness at the local level, the higher up it goes the more certain they are to rule that federal law trumps state law, and at the highest levels, that’s virtually certain.

  • matty1

    @4 I’m afraid I don’t understand what you are arguing for or against. Maybe if we break this down.

    What have supporters of marriage equality said that is hypocritical or two faced?

    Why does not focussing on child rearing in court cases that did not involve children count as hypocrisy?

    Is child rearing really viewed with contempt, my impression is that it is those who choose to be child free who get less respect?

  • Chiroptera

    cptdoom, #2: I was really expecting a DOMA overturn based on a narrow states’ rights basis, which might have gotten a 6-3 or 7-2 decision….

    Why do you think that one or two of the other justices didn’t write a concurring opinion based on the more narrow federalism issue?

  • slc1

    Re Don Williams @ #4

    I don’t know, Mary Cheney seems to be doing OK.

  • slc1

    Re Don Williams @ #4

    I would suggest that ole Don peruse some of the archives here where he will find that Brayton has shown great concern for the children of same sex partners, even though he has no children of his own. In fact, one of the reasons he so strongly supports same sex marriage is because of his view that the children of such liaisons should not be discriminated against.

  • freemage

    Chiroptera: I’ve got a small guess on that one–it’s a blatant appeal to the bigots in 2016. By making it clear this passed by a razor-thin majority, they make it clear that another conservative in the White House, making even one or two appointments, would turn the Court around.

  • Gregory in Seattle

    @Don Williams #4 – The government has always recognized marriage as a business partnership, created with the merging of assets and mandating mutual obligations. Inheritance, implied power of attorney, next-of-kin authority, common property, the definition of family under the law, the equitable separation of joint assets when the partnership dissolves… all of this is very much the legitimate purview of government, and all of this applies whether or not children are involved.

  • Chaos Engineer

    Yet the highly important issue of child-rearing is getting ZERO attention from both the right and the left– from the religious idiots and the gays.

    That’s simply not true. There’s been plenty of outrage on the right about the effects of gay marriage on children, and they were pushing a lot of lying studies to “prove” that negative effects existed. These studies, the Bible, and “tradition” were pretty much the only arguments they were making! The left took more of a reactive stand and was mostly just pointing out that the lying studies were in fact full of lies. But I don’t think we could expect them to say more than that…after all, there’s a general consensus that a child doesn’t get to compel specific adults to get married, even if the child thinks that the marriage would be optimal. So it’s not relevant to the debate.

    Anyway, if you do a google search on “gay marriage children” you’ll get a bunch of articles. The link that comes up first is a USA Today, story How will same-sex marriage rulings affect children? which has a bunch of quotes from people and organizations on both sides of the debate.

    Children suffer incredible abuse and neglect in this country — part of it psychological.

    I agree, but that doesn’t have anything to do with gay marriage.

  • Don Williams

    Gregory at 12:

    Horseshit. The reason government got into marriage was because marriage is the institution for ensuring highly vulnerable children are cared for to maturity. And to ensure that the mother — who historically did most of the child care while the father worked — was not hung out to dry 16 years later if daddy became interested in a new squeeze. Plus ensure fair inheritance of family assets (e.g, that a vindictive father could not leave his wife in deep poverty in her old age by leaving everything to the children.)

    Yes , the government enforces contracts — but there is no reason why it should have a say in what two adults decide between themselves. Children –in contrast — have NO say and hence the government must ensure their welfare meets some minimum standard. Given that it is hard for even two adults to rear a child to maturity, the government had a reason to force them to stick to their responsibilities.

    The waters have been muddied because the religious nuts have claimed some authority over “marriage” . If some people want to have some priest say some mumbo jumbo to seal their pact, that is their business. But

    the churchs should not be allowed to usurp the government’s rightful concern that marriage, civil unions, blah blah is structured to ensure children (and a dedicated at home caregiver) are cared for.

    What rational legal basis is there for distinguishing between a gay childless couple and a heterosexual childless couple?

    Whereas there are several strong reasons for distinguishing between a childless couple consisting of two independent adults (who can split up and pursue their independent lives) versus a couple with one or more dependent children that will require care for many years.

    Yet this entire “marriage” debate has involved NO discussion of the problems of children today and how marriage should be reformed to ensure children are treated better.

  • Don Williams

    Re Chaos Engineer at 13: ” there’s a general consensus that a child doesn’t get to compel specific adults to get married, even if the child thinks that the marriage would be optimal. ”

    Interesting framing. There should be a debate, IMO, re whether adults should be able to get a casual divorce if children are involved. If sterilization was a requirement to obtain a divorce in cases where children are involved, then people might take the job more seriously.

    The thing that struck me about the Sandy Hook Elementary School massacre was how the father skated away without any criticism. His troubled teenage son killed all those kids and who asked “Where was DAD?”.

    The answer , of course, was off with his new young squeeze. “Dad” had rarely been around for years, even though he was not that far away.

    Peter Lanza lives a charmed life. A highly paid executive at General Electric’s Capital, he had the taxpayers bail his butt out of the financial collapse that GE Capital helped cause along with Citigroup and Bank of America. GE Capital got $139 BILLION in the bailout.

    Then Peter also fails as a father and the American people are there again to pick up the pieces.

    But the News Media preferred not to discuss that embarrassing point. After all,Peter reportedly earns $1 million a year — and the News prefers not to criticize those people. Plus Peter did give his wife

    a decent upper middle class alimony and child care check. So he is a NOW paragon compared to many absent dads.

    Of course, those checks did nothing to help a frightened young boy learn how to face up to bullies and beatings — instead of withdrawing into hatred and rage. It did nothing to help a mother physically intimidated

    by a son as he grew into manhood. It did nothing to ensure firearms were kept locked up when not in use by

    an adult. Violent computer software was the father Adam Lanza never had.

  • Don Williams

    1) We do not order alimony for mothers in divorce cases because we think adult females are entitled to a lifetime meal ticket in exchange for the Pearl of Great Price. (Although roughly $100 Billion in Fortune 500 market cap is sustained by that idea.)

    We order alimony because we think young infants are entitled to continuous care and that the person who does that exhausting task should not be left abandoned and in poverty several years later.

    Of course, that concensus is unraveling. Which is why ,in the world’s richest country, millions of young mothers are forced to leave their crying toddlers in day care every morning and head off to make the Richer ever Richer.

    But why should the News Media and Politicians give a shit? The toddlers don’t buy advertising or write $10,000 campaign checks.

  • ArtK

    @ Don # 14

    The reason government got into marriage was because marriage is the institution for ensuring highly vulnerable children are cared for to maturity.


    That’s a very specific claim without any evidence. That may be one of the reasons that the state sanctions marriages, but you’ll have to work hard to prove that it’s the sole or even primary reason. Marriage is neither a necessary nor a sufficient condition for raising children. Plenty of people raise children without benefit of marriage and plenty of children are harmed even though they are raised in a married household.

  • D. C. Sessions


    Alimony (aka “spousal maintenance”) is not child support and has nothing to do with the needs of children. I speak from personal experience with the law in Arizona; the “spousal maintenance” for the ex-wife came directly from the budget for our childrens’ education.

  • ArtK

    @ D.C. Sessions #18

    Similar situation in California. “Child Support” and “Spousal Support” (aka alimony) are two separate issues.

  • Don Williams

    Re ArtK at 19: “Child Support” and “Spousal Support” (aka alimony) are two separate issues

    No they are not. Alimony is given because one spouse (historically, the mother) gives up a career (and associated long term earnings) in order to care for one or more children.

    Historically, also, it was difficult for a woman to remarry if she had already been married for several years and it was also difficult for her to find a lucrative job so the husband was also made responsible to some extent for her maintenance because he had assumed responsibility for her (from her parents) when he married her.

    I also am assuming that when we speak of alimony we are not talking about the division of family assets owned in common.

  • Chaos Engineer

    There should be a debate, IMO, re whether adults should be able to get a casual divorce if children are involved. If sterilization was a requirement to obtain a divorce in cases where children are involved, then people might take the job more seriously.

    Society had that debate a while back, and it was decided that it’s a bad idea to force people who hate each other to live under the same roof. That said, it might be worth ramping up social pressure in order to encourage non-custodial parents to spend more time with their kids. That’s a bit tricky, though. Ideally, people would want to spend time with their kids. If they’re pressured into doing it, then they might take their frustrations out on the kids and make matters worse.

    Forcibly sterilizing people is a human rights violation, and based on recent history the Supreme Court would strike it down by a 5-4 margin.

  • Gregory in Seattle

    @Don Williams #14 – The simple fact is that reproduction is not, and never has been, a requirement for marriage in the United States. Ever. That is what made Washington’s Initiative 957 so outrageous, as it would have given the lie that it is the force of law. It was proposed specifically to counter the argument made by the Washington Supreme Court in 2006 that there was a distinction between a childless straight couple and a same-sex couple, and to demonstrate the point that even if marriage WERE to protect children, same-sex couples who are raising children together (and there are a lot of them) should be encouraged to get married, not prohibited.

    The religious claim is equally irrelevant: legal marriage has never required any kind of religious blessing, ceremony or sanction. You have the First Amendment to thank for that. While every state has granted clergy authority to countersign marriage vows, every state also grants that same authority to judges. In many states, county and municipal clerks have that authority, too. In Maine, North Carolina and Florida, marriage vows are nothing more than a special jurat that can be taken by any notary public. The only thing that makes a legal marriage is to pay a fee to the appropriate civil authority, make mutual oaths in the before someone legally authorized to take that oath in the presence of witnesses, have everything countersigned and turned in by the mandated deadline. That some religions also use the word “marriage” to describe their hand-waving and incantation-muttering has no legal basis at all.

    And keep in mind that there is no law requiring to people to get married. It is a VOLUNTARY contract that can be entered into only when both parties agree. If two adults decide to follow a different path — and many do — they are free to do so. Being unmarried, however, means that they will not have access to the panoply of rights and protections that come with that institution.

    Speaking about those rights and protections…. Civil marriage gives about 1000 specific rights, protections, privileges and responsibilities under federal. Between 600 and more than 1000 under state law, depending on the state in question. Many more under county and municipal statutes. Thousands of separate benefits granted as a matter of negotiated contract, union work agreements and corporate policies. An uncountable number of court decisions at all levels of the judiciary, stretching back into the Colonial Period and even earlier to British common law. All for a very low, one-time fee paid to a county or municipal clerk. What do you propose as an alternative?

  • Chiroptera

    Don Williams, #15: There should be a debate, IMO, re whether adults should be able to get a casual divorce if children are involved.

    Actually, my domestic situation improved greatly when my parents were divorced. I’m guessing that the majority of children with divorced parents would agree.

    I think the possibility of children is an argument for making “casual marriage” harder to get into.

  • Gregory in Seattle

    @Don Williams #20 – You are ignorant of the law.

    Child support is mandated ONLY in the event the union resulted in children. It is typically ordered as a set payment per child, and is paid only until the child reaches the age of legal majority, typically 18.

    Alimony and palimony (a similar concept in cases of non-married long-time partners) is a mandated payment by the ex-spouse with greater earning potential to the other ex-spouse, usually for a stated period, to help the other ex-spouse establish financial independence from the dissolved union. Sometimes, both child support and alimony is ordered by the divorce agreement; usually, however, it will be one or the other. Nowadays, it is pretty common for a wife to be ordered to pay alimony to her ex-husband: the courts look to the couple’s past and current employment or lack thereof in making such a determination, rather than gender.

    They are entirely separate legal concepts, with different histories and different functions.

  • Don Williams

    ArtK at 17: “That may be one of the reasons that the state sanctions marriages, but you’ll have to work hard to prove that it’s the sole or even primary reason”

    Not at all. Men ruled until relatively recently. Why would they insist on a woman limiting sex strictly to

    her husband other than to assure the husband that the children he was supporting were his?

    Why the “sin” of adultery — which focused on a married WOMAN having sex with someone other than her husband?

    Sexual fidelity on the part of the husband, in contrast, was a vague ideal, so long as he did not poach on another man’s wife or dishonor the daughter of a man of standing.

  • Don Williams

    Re Gregory in 24: “You are ignorant of the law. ”

    I’m not ignorant of it — I merely hold it in deep contempt as it is currently practiced by divorce lawyers.

    1) The moral argument for paying alimony to a mother who has spent years raising children is obvious.

    2) The moral argument for paying alimony to a wife in a paternal society where women have few to no

    options other than being a wife is also obvious — but that situation came about because such societies have

    placed a high priority on the need for mothers to care for their children.

    3) I see no justification for ordering a woman to pay alimony to a man unless he has foregone a career

    in order to care for children at home. A 50-50 split of their joint property is understandable, if the state

    runs things that way and the rule is understood when the marriage is contracted.

  • Don Williams

    One correction to 26: “In sickness and in health” applies. If a husband is disabled by a medical condition then I could see the healthy professional wife having some responsibility to sustain him.

  • D. C. Sessions

    I’m not ignorant of it — I merely hold it in deep contempt as it is currently practiced by divorce lawyers.

    Not to mention legisltatures and courts.

    However, you didn’t phrase the original statement as a “I think things ought to be this way,” you phrased them as “this is how they are:”

    We order alimony because we think young infants are entitled to continuous care and that the person who does that exhausting task should not be left abandoned and in poverty several years later.

    Which is, quite simply, wrong.

  • ArtK

    @ Don

    You still have provided no citation showing that the intent of civil marriage is solely or even primarily the raising of children to maturity. You’ve made bald assertions but provided no evidence. Your sideways reference to adultery is proof of nothing.

    You’ve also ignored the fact that children can be raised outside of marriage and that children raised inside of a marriage don’t always make it to maturity — there are plenty of cases where it can be shown that staying in the marriage was detrimental to the children. Finally, there’s the whole issue of infertile couples being allowed to marry. My wife and I married well past child-bearing age. If the sole or primary purpose of marriage is raising children to maturity, why were we allowed to marry?

    Oh, and if you wouldn’t mind providing some specific examples of how marriage equality advocates are “acting in a two-faced, hypocritical manner,” that would go a long way to establishing a little credibility for your positions.

  • Azkyroth Drinked the Grammar Too :)
    We order alimony because we think young infants are entitled to continuous care and that the person who does that exhausting task should not be left abandoned and in poverty several years later.

    Which is, quite simply, wrong.

    To be fair, he may be using the “royal we.”

  • Azkyroth Drinked the Grammar Too :)

    If sterilization was a requirement to obtain a divorce in cases where children are involved, then people might take the job more seriously.

    That does sound like a more Final Solution than what we have in place currently.

  • D. C. Sessions

    If sterilization was a requirement to obtain a divorce in cases where children are involved, then people might take the job more seriously.

    Yes, I can see this. Woman wants children, marries, has child, and husband beats child to lifelong incapacity. In order to get a divorce and remarry, she must forever give up hope of another child.

    Makes perfect sense.

  • Tony! The Virtual Queer Shoop


    Kidding or serious matters little.

    Your comment about forced sterilization is disgusting. You are familiar with bodily autonomy arguments used in defense of a womans right to choose…?

    Also, your point about childrens rights would be valid in a thread about such. You would still be asked for citations though.

  • slc1

    Re Don Williams @ #4

    Ole Don cites David Geffen as one who is pushing the same sex marriage on the Democrats. One guess what Geffen’s ethnic background is. Somehow, ole Don’s examples always seem to come from folks coming from that background. Of course, this in no way, shape, form, or regard means that ole Don has it in for folks having that background. Not a bit of it, perish the thought.

  • Don Williams

    Re Artk at 29: “You still have provided no citation showing that the intent of civil

    marriage is solely or even primarily the raising of children to maturity.”

    1) Our laws have been built up over 2500 years. Both the ancient Greeks and Romans

    considered marriage laws a valid power of the state to both encourage procreation

    and to regulate sex and procreation into legal forms. Children of concubines could not

    inherit, for example. People who failed to marry and have children were penalized, lost

    civil rights and were fined.

    2) The Roman Catholic Church (which pretty much covered Christianity in the West

    up until the birth of Protestantism ) has always considered contraception a sin and

    having children both the purpose and one of the fundamental requirements of a valid marriage:

    4) The Protestant Churchs shared the Roman Catholic Church’s views on contraception

    up until 1930 — when the Anglican Church changed its policy.

    5) That is the historical basis for our laws — which admittedly have much detritus from the past 5000


    One could argue that it is not relevant today–given the changes in technology, the

    nature of work and the economy, social mores and a fall in the influence of church on society.

    But if you are going to scrap the old, then you have an obligation to do an honest job in

    crafting the new.

    6) So if 1-4 are irrelevant today, then my initial question remains: What RIGHT does

    the government have to be involved in regulating and licensing marriages other than

    ensuring that the children are protected? Absent children,

    Agreements between two consenting adults should merely be a matter of contract law.

    Who cares what they do or what their sex is?

    But when someone is thinking of bringing a child

    into the world, then the government needs to step in and let them know that it will be holding

    them to heavy responsibilities. We don’t need a government marriage license so much as we need a

    childbearing license — and it should be harder to get than a dog’s collar tag.

    And given that that should be the primary focus of a public debate on marriage , why have the

    parties in the current debate gone out of their way to FRAME the public discussion in order

    to AVOID the subject? (I am referring to the News Media coverage, not to discussions here.)

    That is what I consider the two-faced hypocrisy.

  • Don Williams

    SLC at 34:

    I cite billionaire David Geffen because he is a major power in the Democratic Party on this subject.

    His anger at the Clintons (and switch to support for Obama) because he felt the Clintons betrayed him on

    this issue are well known:

    And I rather doubt Orthodox rabbis think Geffen speaks for them.

    There is no reason why David should be interested in childrearing — but that doesn’t mean the subject is thereby irrelevant when you are revising the marriage laws.

    Or that the News Media , politicans and opinionshapers should FRAME the entire discussion solely to his mindset.

  • Ace of Sevens

    Don Williams, what are you talking about in regards to government getting into marriage? Did marriage ever exist independently of government?

  • dingojack

    on – if marriage is all about inheritance and children* then the state has a compelling interest in regulating such marriages.And now you want the government not to regulate such contracts? Which is it you want here Don, no government interference, or government interference?



    * this isn’t strictly true though is it Don. There is also a public health issue too. Inbreeding causes abnormalities to rise reducing the number of persons available to work and increasing the burden on society (although even this isn’t strictly true. The disabled had to work as much as they were able)…

    Plus regulating marriages reduces the potential for disputes over inheritance and land by creating as system of arbitration between families. Less disputes means fewer feuds and less bloodshed (and less chance of it spiraling out of control). So there’s a public safety issue.

    OBTW in Rome marriages were contracts (sometimes overseen by the state, but certainly not always) between families. It was certainly possible for the child of a concubine (or even an adopted child) to inherit if the father acknowledged them as their own.

  • Don Williams

    Re Ace of Sevens at 37:

    1) At one time, the “Holy State of Matrimony” was a relationship ruled by God –and with all the authority that entailed. Of course, it was always tied into civil law — inheritance, dowry, etc.

    However, it has since evolved to where it is largely a civil contract between two adults. [Obviously you have a lot of legal "Standard Operating Procedures" (because it causes headaches if everyone designed their own complex custom versions of "marriage" ) and obviously the legal SOPs have a lot of embedded assumptions based on historical traditions and economic relationships that are changing.]

    2) As I noted, I don’t see where the government has much justification to micromanage a contract entered into by two consenting adults. And in Pennsylvania, that largely holds for straights. Unless you are trying to enter into an incestuous relationship, are mentally incompetent, are under age 16 (and even that can fly in some cases) or show up drunk or stoned, the clerk has to give you the marriage license.

    Unless you are gay. Because the next clause in the Pennsylvania code says it is its strong and longstanding public policy to NOT allow same sex marriages or to recognize those from other states.

    3) When the Right tries to defend that, it brings in procreation: that hetero couples create children when they have sex and gays do not and so marriage only applies to hetero couples.

    But that (a) ignores that the fact that a lot of hetero couples have NO children and (b) gay couples can adopt — or even have children using surrogate birth mothers (men) or artificial insemination (lesbians).

    4) So I think it is easiest to work out fair laws by dropping the “Gay marriage vs straight marriage ” quarrel and saying there is only “marriage”. And that marriage is of two types: childless and childrearing.

    That government should have minimal involvement in childless marriages and that there is no reason why hetero childless couples should get rights and privileges denied to gay couples.

    However, the government does have a responsibility to protect children in the case of childrearing marriages. But a gay couple struggling to rear an adopted or natural child should be entitled to the same privileges and government assistance (tax credits,etc) given to hetero couples who rear children — and that this gay couple should definitely be privileged over the hetero childless couple who never assume that heavy burden.

    In Pennsylvania, the laws re adoptions are separate from the ones re marriage but I think some gay couples would be interested in having consistency in both.

  • Don Williams
  • Don Williams

    What is hilarious about the Right is that they don’t realize the legal code itself refutes their moral stance. The PA adoption code, for example, notes that if there are “multiple putative fathers” of a baby up for adoption then each one must be hunted down and convinced to relinguish his paternal rights. Unless he was notified 4 months ago that the child had been born and has not showed up to examine the kid or offer an economic support, in which case the state can write him off as paterfamilias.

  • dingojack

    Ol’ Don conveniently forgets the commonest kind of Roman marriage which was similar to modern common law marriages, no ceremony, no priest, no state interference required.

    Also Don, the state did not regulate marriages then, as now, the state’s interest was in only in public health and public order, the rest was up to families to decide.

    He also is forgetting concubinage (effectively a form of legalistic polygamy) which was quite common in post Republic Rome.

    Marriage never was as straightforward as you’d like to imagine Don.

    States would have to prove that there is some compelling reason to prevent certain classes of marriage, not the other way around. So Donny-boy, what’s the compelling reason(s) to prevent marriage equality?


  • slc1

    Re Don Williams @ #41

    That law no longer makes sense. With current DNA technology, one can be certain who the father of a child is within less then .01% uncertainty. The only exception is if the putative fathers are identical twins.

  • Don Williams

    dingo at 42:

    1) Augustus’ Lex Papia Poppaea strongly penalized those who did not marry, penalized those who married but did not have children, rewarded those who had children, and strongly punished adultery:

    Augustus Caesar addressing the Senate, 17 BC:

    “”If we could survive without a wife, citizens of Rome, all of us would do without that nuisance; but since nature has so decreed that we cannot manage comfortably with them, nor live in any way without them, [17] we must plan for our lasting preservation rather than for our temporary pleasure.”

  • Don Williams

    1) The Roman Senator and historian, Tacitus, writing in the Annals, book 3, chapter 25:

    “It was next proposed to relax the Papia Poppæa law, which Augustus in his old age had passed subsequently to the Julian statutes, for yet further enforcing the penalties on celibacy and for enriching the exchequer. And yet, marriages and the rearing of children did not become more frequent, so powerful were the attractions of a childless state. Meanwhile there was an increase in the number of persons imperilled, for every household was undermined by the insinuations of informers; and now the country suffered from its laws, as it had hitherto suffered from its vices”

    2) And Annals, book 3, chapter 28:

    “Henceforth our chains became more galling, and spies were set over us, stimulated by rewards under the Papia Poppæa law, so that if men shrank from the privileges of fatherhood, the State, as universal parent, might possess their ownerless properties. But this espionage became too searching, and Rome and Italy and Roman citizens everywhere fell into its clutches. Many men’s fortunes were ruined, and over all there hung a terror, “

  • Don Williams

    Also to dingo at 42:

    1) America’s Founding Fathers explicitly designed the Constitution to set up a state along the lines of ancient Rome –although they left out the Tribunes-to-protect-the-plebes part.

    2) And the American Empire is collapsing from the same lethargy and vice that took down Rome.

    From 1960 to 2010, the population of Asia grew from 1.7 Billion to 4.3 Billion. In contrast, the

    population of North America only grew from 204 million to 351 million.

    3) Interestingly enough, the ROMAN Catholic church is not afflicted — because of its ban on contraception and insistence on marriage before sex and sex for procreation. So while it may not prevail in the near term debate in the Forum it will prevail in the end by outfucking the rest of us.

    Maybe the USA needs a Lex Papia Poppaea .

    4) Alternatively, the US may have to save Spaceship Earth by nuking a few billion or so. Plan B in

    carbon emissions cap and trade.

  • Don Williams

    Population of Australia is —what? 20 million?

    heh heh heh