I had a very knowledgable friend of mine take a look at my bit on
my last entry about Prof. George and gay marriages. He thinks that George is right. Read on for some perspective.
Note the indentations from the e-mail converstaion. His words are in italics, while mine are in plain text.
1. "Powers" not rights are reserved to the states or to the people (10th Amend.). The states recognize marriage and government has done so for 2000+ years on the assumption that "marriage" is a union between a man and a woman. If states wish to change the meaning of marriage -- by exercising their power -- they can do so. But a single judge (elected or appointed) is not so authorized to make this judgment.
I agree with the sympathy that judges shouldn't be making laws and all that, but I don't see how a prohibition on gay marriages stands up (logically) to equal protection scrutiny in light of rulings like Lawrence v. Texas. Maybe my understanding of equal protection is flawed -- but it seems that if you're offering tax benefits to heterosexual couples (and family units), it doesn't follow for me that you could deny those same benefits to homosexual couples without equal protection problems. How do you get around the 14th amendment in these cases?
The tax benefits work the other way. There's something called the marriage penalty. No one has managed to knock it down on EP grounds. Besides, the EPC applies to STATE governments with particularity in the 14th amendment. Lawrence v. TX rested on a Due Process liberty interest, not EP.
2. Gay marriage may be the third rail of electoral politics. I think any candidate who supports gay marriage (as opposed to gay union) is dead in the south. And we know the difficulty of forming a minimum winning coalition without a single southern state. Just imagine when Howard Dean gives his acceptance speech for the nomination and gets to the line in his address where he asserts his support for gay marriage. The camera pans to two guys who embrace in one of those big kisses (like the Gores). The Dems will sink like stones, IMHO.
Agreed. But I don't think that the support is there for the federal marriage amendment as I've heard it described. It seems like the supermajority required to close this door via an amendment is just not there and shrinking daily.
3. There is strong opposition to gay marriage because the majority view "marriage" in the traditional sense. This is quintessentially a public policy issue, not a rights issue. It should be fought -- and won or lost -- in electoral politics and in the legislature. And it is difficult for me to comprehend --as it is difficult for George to grasp -- that a single Massachusetts judge will decide the fate of this issue for the country when it is so strongly -- and will be bitterly -- contested.
Maybe this is Roe for the new century. :-) I agree with the sentiment that it should be decided by legislatures, but again, how do you not run afoul of the 14th amendment?
And what is the limit to your argument? Given your EP assumptions, could a child marry a parent? (Assume different sexes; parent is beyond child-bearing/creating age.)
Given my argument, a child marrying a parent is an allowable outcome. As is probably polygamy and other alternative family forms. I can't say that I'm a fan of it -- I just don't see how you get around the equal protection arguments. Of course, I may have just completely forgotten the limitations that can be placed on an equal protection argument. Perhaps Scalia wasn't so paranoid after all when speaking about what could happen in a post-Lawrence era.
-- End E-Mail --
So in retrospect, it looks like I was mistaken on a few points -- namely that Lawrence v. Texas (doh!) was decided on equal protection grounds and that there is some tax benefit when being married (Can someone clear this up for me or is this a state by state thing?). I agree with his assessment that judges shouldn't be legislating -- my main beef with the Roe opinion -- and it appears that there is not an equal protection issue yet with respect to this situation. In my blog, the idea that marriage is only a contract was brought up. So if this is the case, what do homosexual couples lose out on by being unable to marry? Isn't it possible to forge contracts and other documents that show a partner's wishes with respect to their partner's visitation rights, inheritance, and other such things? In other words, if you're a gay couple, why bother with getting married to begin with?