So I've just been listening to the oral arguments before the 9th Circuit in Idaho's same-sex marriage case. Idaho's defense of it's laws that exclude same-sex couples from marriage (or any other form of recognition) was solely focused on "the message" they allege is received from limiting marriage to man & woman. It's was about what they see in their "crystal ball" that allows them to predict the damage they assume will be done if Idaho is forced to adopt "genderless marriage". In other words, they apparently think the message matters more than what the law actually does; what the substantial effects of the law are. They think those substantial effects - the injury to same-sex couples who find themselves excluded - matters far less than "sending a message" by restricting marriage to one man/one woman. On the other hand, there is the message sent to same-sex couples and their children, that they would rather not acknowledge. Question: What is more important to the Law? Is it sending messages? Or is it the substantial, actual effects of the law? Is the law more about speculative effects that might or might not materialize at some unnamed point in time? Or is it more about what the law does in the here and now, and how that effects the future? I maintain it's the latter. I have never been much of a fan of giving precedence to golden ideals over the practical effects of the law. To me, the law is how we put our ideals about liberty, justice, equality, etc. into practice, how we give them effect; how they are made manifest instead of being subjects merely of philosophical debate. I do not subscribe to this idea that the law is about "sending messages" for the purpose of promoting golden ideals, based on vague assumptions about the future. There can be little doubt how the three judges on this panel will rule, given the history of what has gone before in the 9th Circuit, but even more so what was asked/said at these oral arguments. At one point, it almost seemed as though one of the justices was testifying for the plaintiffs; I kept wondering, "Is there a question coming, and what could it possibly be?" Doesn't look good for the state's case. Recordings of the case will be available here, tomorrow: http://www.ca9.uscourts.gov/media/ - sorry that I can't give you a link to any news reports at this time, as they seemingly haven't been posted yet.
The arguments against Ssm are ridiculous. Based on them, all anti Ssm folks will lose. They simply can't articulate why somebody else's marriage effects them, that it's because it doesn't. Try as they might.
All arguments really boil down to these three. 1: "I don't like this, so nobody else should either." 2: "Marriage should always be between a man and a woman because it always has been." 3: "Permitting same sex couples to marry will interfere with people that aren't inthe marriage" They are all circular arguments.
http://abcnews.go.com/US/wireStory/hawaii-idaho-nevada-gay-marriage-laws-court-25338944 Stewart told the panel that same-sex marriage would undermine children's right to be raised by a father and mother. Same-sex marriage would undercut the message that a man who fathers a child should get in a relationship with the female mother, he said. "This is a contest between two different messages," Stewart said. "The message of man-woman marriage is: 'Men, you're valuable and important in the upbringing of the children you bring into this world. Women, you are valuable and important in the upbringing of children you bring into this world.' Genderless marriage does not send that message, indeed it undermines it." Berzon questioned how gay marriage differed from the current model of marriage, which she called "genderless." Berzon said that with gay marriages occurring, "the train has already left the station." Deborah Ferguson, an attorney representing gay marriage supporters opposed to Idaho's ban, said children of same-sex couples don't have the same protections as children of heterosexual couples. "(They) don't have two legal parents to protect them," she said. "That is sending a powerful message. That tells those children that their parents' marriages aren't worthy of respect. That's a very harsh message." Really the opponents of same gender marriage have a losing argument when it comes to "Think of the Children!". Because unless they argue that same gender couples should be prevented from having children (which they don't argue)- they are instead arguing that children of same gender couples do not deserve to have two legal parents that marriage automatically provides to opposite gender couples.
[TABLE] [TR] [TD="width: 700, colspan: 7"]The anti gay agenda is eroding by the day. http://www.pollingreport.com/civil.htm CBS News Poll. July 29-Aug. 4, 2014. N=1,344 adults nationwide. Margin of error ± 3.[/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137"][/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [TD="width: 108"].[/TD] [/TR] [TR] [TD="width: 700, colspan: 7"]"Do you think it should be legal or not legal for same-sex couples to marry?"[/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137"][/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [TD="width: 108"].[/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137"][/TD] [TD="width: 108"]Legal[/TD] [TD="width: 108"]Not legal[/TD] [TD="width: 108"]Unsure/ No answer[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137"][/TD] [TD="width: 108"]%[/TD] [TD="width: 108"]%[/TD] [TD="width: 108"]%[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]7/29 - 8/4/14[/TD] [TD="width: 108"]53[/TD] [TD="width: 108"]40[/TD] [TD="width: 108"]7[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]2/19-23/14[/TD] [TD="width: 108"]56[/TD] [TD="width: 108"]39[/TD] [TD="width: 108"]4[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]7/18-22/13[/TD] [TD="width: 108"]55[/TD] [TD="width: 108"]39[/TD] [TD="width: 108"]6[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]5/31 - 6/4/13[/TD] [TD="width: 108"]51[/TD] [TD="width: 108"]44[/TD] [TD="width: 108"]5[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]3/20-24/13[/TD] [TD="width: 108"]53[/TD] [TD="width: 108"]39[/TD] [TD="width: 108"]8[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]2/6-10/13[/TD] [TD="width: 108"]54[/TD] [TD="width: 108"]39[/TD] [TD="width: 108"]8[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]11/16-19/12[/TD] [TD="width: 108"]51[/TD] [TD="width: 108"]41[/TD] [TD="width: 108"]8[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]9/8-12/12[/TD] [TD="width: 108"]51[/TD] [TD="width: 108"]41[/TD] [TD="width: 108"]7[/TD] [TD="width: 108"][/TD] [TD="width: 108"][/TD] [/TR] [TR] [TD="width: 23"][/TD] [TD="width: 137, align: left"]7/11-16/12[/TD] [TD="width: 108"]46[/TD] [TD="width: 108"]44[/TD] [TD="width: 108"] 10 [/TD] [/TR] [/TABLE]
Well, drat. I just tried to transcribe the audio of this section to clarify Berzon's comments, but PF timed out and logged me out before I could post it. Essentially, Berzon is responding to the assertion by Idaho that same-sex marriage would mean dropping support for man/woman marriage and implementing something new and very different, which their attorney characterizes as 'genderless marriage'. Berzon's point, which comes out in three separate exchanges, is that the history of marriage shows a shift from being a 'sort of' gendered institution, to one that in many ways (most ways, she amends) has become essentially genderless. She points out that many of the things that made marriage 'gendered' amount to sex discrimination, and she gives the examples of women not being allowed to own property, that you can't pay women to stay home to take care of children but not do the same for men, that whatever system one might prefer (women should stay home to take care of the children), it cannot be imposed because it represents sex discrimination. This is what she meant by "the ship has already sailed". Marriage has already become a largely genderless institution, legally speaking. She's basically saying that she doesn't buy Idaho's argument that allowing same-sex couples to marry represents the kind of shift that Idaho's attorney is claiming would take place - because it has already happened, unrelated to recognizing same-sex marriages. Idaho's defense tries to make hay with a prediction about father's not committing to the children they had a role in producing. Berzon shoots back with a question about whether that has happened in Massachusetts (which has had same-sex marriage for 10 years). Idaho's attorney then gives a song and dance about it being too soon to know - that we haven't yet seen the effects on a full generation of people socialized with 'genderless marriage' instead of man/woman marriage. He claims we haven't seen a change in a Massachusetts because even though there has been same-sex marriage for a decade there, all the adults were socialized with the institution of man/woman marriage. It's quite a contrast, between Berzon's observation that the things making marriage "gendered" from a legal standpoint have largely become extinct, versus the tale laid out by Idaho's attorney, in which they try on the one hand to counter present-day observations in Massachusetts with "we haven't seen enough yet", followed up with claims about some distant future that they see through their 'superior' crystal ball, as if the doom they 'see' were the only possible, predestined outcome. Hardly surprising that the judges weren't entertaining this nonsense.
I don't know, it doesn't seem unlikely that a government can and has enacted laws for the purpose of the messages they send more so than the direct effects, if for no other reason than that it would be an overstep of their power to send a direct message. You might include the tax code in this. Messaging from the CDC. Minimum sentencing for the purpose of deterring others more so than for the crime itself. The issue I see here is how tenuous the relationship is... is the government's method to send this message a good "fit" in other words, narrowly and sufficiently executed? That's where this fails. If it's about creating the message that "I, as the father, am important to this child", then this argument still faces the same challenge as the "procreation argument"... i.e. that all elderly and otherwise infertile people can marry, so what kind of message does that send? Further, is there any rational basis for that particular message rather than "I, as a parent, am important to this child" which would be the case of a same sex couple as well as opposite sex couple. Is the value of the first message more valuable than the value of the second message, in addition to the direct harm that is caused by the exclusion of same-sex couples? There is a plethora of evidence and documents that have been delivered to the courts over the years which says otherwise, so it's hardly even a question of whether or not same-sex couples are just as capable of rearing children. Its purely a matter of if heterosexual couples would be he less likely to do so appropriately if same sex couples could too. There is evidence in Massachusetts and other states to answer the question of whether there is any lost message that has happened since same-sex marriage became legal, a question which the state could not address... but it should be easy enough to track the correlation between same-sex marriage and marriage rates. What makes the State think that this is the appropriate way to send the message? It seems to be quite a tenuous relationship at this point, so the court asks why the State doesn't just enact laws against fornication? What about he message no-fault divorce sends? Why doesn't it "just send a message" instead of going through these hoops?
That government sometimes uses the law to "send a message" doesn't necessarily mean it's wise or desirable for it to do so. I'm inclined to think that this just invites the kind of partisan squabbling our government has devolved into, as various factions fight for the power to control "the message". It threatens to twist the law into a tool of the powerful and another means by which they substitute their own interests for those of the governed. I otherwise agree with your points.
I think a case could be made for it. If the government doesnt have the power to directly "send a message", the it seems reasonable that they shouldnt have the power to do so indirectly. But this does not address the case where the government does have the power but chooses for other reasons to be more subtle, or where there are competing legitimate interests. In this particular case, we are dealing with a very personal and private part of our own lives, so its hard to imagine that the government should have any interest which is worth the harm of selective exclusions, particularly when it is so tenuous.
I don't understand why Idaho or any other state doesn't simply cite an obscure Wisconson paternity case that can be misinterpreted to say something irrelevant. That seems to be the strongest argument raised so far.
Though many same-sex marriage cases are now awaiting the U.S. Supreme Court’s consideration, the dominoes continue to fall in other states as district judges continue to consider challenges to bans on same-sex marriage. A limited ruling out of Arizona Friday recognizing one same-sex marriage suggests it’s the next domino to fall. Friday’s ruling pertains to one same-sex couple who just married in July, though it is connected a larger case brought by Lambda Legal. Fred McQuire and George Martinez had been together for more than 40 years, but married in California this summer anticipating Martinez losing his fight with cancer, which he did in August. Judge John W. Sedwick ruled that the state must recognize their marriage on Martinez’s death certificate. http://thinkprogress.org/lgbt/2014/09/15/3567306/arizona-marriage-death-certificates/
Supreme Court: Same-Sex Marriage Can Move Forward In Idaho The Supreme Court on Friday gave its blessing to same-sex marriage in Idaho after halting a lower court ruling earlier this week which struck down the state's ban. "The application for stay presented to Justice Kennedy and by him referred to the Court is denied. The orders heretofore entered by Justice Kennedy are vacated," the Supreme Court said in a brief order issued late afternoon. http://talkingpointsmemo.com/dc/supreme-court-lifts-stay-idaho-gay-marriage Another thread that can be closed!
