James Madison on Proposition 8: Factions, Federalism, and Gay Marriage


No. But you certainly can.

By now, I assume that most of you have heard the news regarding Proposition 8, which was overturned this week by a California judge.

From The New York Times:

Saying that [Proposition 8] discriminates against gay men and women, a federal judge in San Francisco struck down California’s voter-approved ban on same-sex marriage on Wednesday, handing supporters of such unions at least a temporary victory in a legal battle that seems all but certain to be settled by the Supreme Court.

As usual, the media has been buzzing, but it seems that the majority of the arguments (from both sides) have to do with the morality of gay (or straight) marriage, and whether we as a society should “accept” it.

These are necessary arguments to have, but the fundamental issue at the moment has to do with whether this decision holds up on Constitutional grounds. I would argue that it does not.

The decision centers around the last part of the Equal Protection Clause in the Fourteenth Amendment, which says the following:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Obviously we can’t just interpret the Equal Protection Clause all by itself (it has years of jurisprudence coloring its words and meaning), but rather than dive into a nuanced, methodical discussion of how we should interpret the clause, I will simply say that I don’t believe the clause has anything to do with homosexual marriage, or heterosexual marriage for that matter.

In this particular instance, perhaps one good way to understand what it should apply to is to detach ourselves from thinking of “marriage” as a right.

For example, Theodore P. Olson, one of the lawyers arguing against Proposition 8, committed this very mistake:

Mr. Olson called the decision a “victory for the American people,” and anyone who had been denied rights “because they are unpopular, because they are a minority, because they are viewed differently.”

I understand that nowadays we like to call everything a “right.” Health care is a right, a “living wage” is a right, eating out once a week is a right, you name it. But as protectors of liberty we need to be careful about our discussions of rights, and I think if we root ourselves in a proper understanding of which rights should be protected by the government, we will conclude that marriage isn’t one of them, gay or straight.

Then there is another somewhat-related argument about whether the regulation of certain behaviors is in the State’s “legitimate interest” (a common “test” in such matters).

Judge Vaughn R. Walker speaks to this in his written opinion:

Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause. Excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.

The most simple response is that Walker has it all backwards.

To flip it around, including same-sex couples in marriage is “simply not rationally related to a legitimate state interest.” Again, the same goes for heterosexual marriage, which the State initially sanctioned through licenses in an attempt to “regulate” interracial marriages (it had banned them before). The government never had a good reason to sanction heterosexual marriage, but at least it can try to claim the benefits of pro-creation and family rearing. I don’t think there is any remotely valid State interest in endorsing homosexual marriage, other than making homosexuals feel “accepted,” which seems to be this judge’s primary motivation.

Therefore, on Constitutional grounds, whatever your opinion about whether gay marriage should or should not be legalized, I don’t think there should be any disagreement over whether it can or cannot be. In short, I don’t think it is unconstitutional to regulate certain behaviors (outside of the Bill of Rights, etc.), and homosexuality is one of those behaviors, whether you’re for it or against it.

But how do we reconcile this? Roughly half the country favors it, and the other half opposes it. Despite the heated and often irrational nature of the debate, the answer is actually pretty self evident.

The solution is actually identical to what I outlined in my post on nullification and federalism.

Simply put: The solution to the “culture war” over gay marriage is not to surrender to one side or another, but rather to launch a perpetual, never-ending struggle. In other words, we should continue letting states do what the Constitution permits them to do — namely, allow them to vote on which behaviors they deem acceptable.

Libertarians typically cringe at any talk about “regulating behavior,” and for good reason. But our recourse to policies we disagree with should not be to reconstruct or reinvent the Constitution in areas it doesn’t speak to (e.g. cigarettes, drugs, marriage). Rather, we should utilize what the Constitution prescribes in these instances — radical federalism. We can obviously amend the Constitution when necessary, but I think we should leave the decisionmaking to republican democracy whenever possible.

The downside of democracy is discrimination, but paired with a federalist/republican approach, it allows for healthy competition among local cultures.

James Madison, the principle author of the Constitution, was no stranger to these issues. Indeed, competition between factions was a prevalent discussion in America’s founding. Madison speaks most directly to these issues in Federalist #10.

First, he explains the inescapable reality of factions:

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice…[has], in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

Madison then considers the consequences of trying remove factions altogether:

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

Gay marriage advocates would argue that their opponents are resorting to the first option, but I would argue that a gay marriage victory (in the courts) would lead to the second.

But alas, Madison concludes that both options are fundamentally detrimental, and thus we must not attempt such a removal:

The inference to which we are brought is, that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects.

And how do we “control” such effects?

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.

James Madison had something to say about moral squabbles.

I agree with Madison’s philosophy on “faction management,” and therefore I would argue that before we can have any real, constructive (and actionable) debate over whether homosexual marriage is good or bad for society — or even whether it is permissible or impermissible — we need to put a stop to all of these fundamental threats to republicanism and democracy (which are particularly being posed in the courts).

When it comes to Proposition 8, the people of California — the factions — should be able to debate this issue and come up with their own solution (as they already have). If gay marriage advocates want to reverse it, they should argue in the public sphere and persuade Californians to accept their behavior. The idea that some judge has a better grasp on “equality” and “justice” than the voting public seems to represent the very intolerance these gay marriage advocates claim to oppose.

Each faction has its own beliefs, theories, and arguments.

My simple proposition?

Unleash true republicanism and true democracy and let the games truly begin.

(Note: The image above is provided by ProComKelly / / CC BY-SA 2.0)

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  • http://twitter.com/remnantculture/status/20478504248 Remnant Culture

    My thoughts on the Prop 8 goings on: "James Madison on Prop 8: Factions, Federalism, and Gay Marriage." http://bit.ly/cVUeKW

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  • http://twitter.com/mattress Matt

    In my opinion, marriage, straight or gay should not even be in the domain of governmental control. It is none of their business. Especially when you consider the idea of separation of church and state. Marriage is, originally, a religious institution. Marriages should be conducted by churches. Churches should have the right to marry only those whom they choose to marry. If some liberal church wants to marry gay people, then that is their right, the government should stay out of it.

  • http://www.remnantculture.com/ Remnant Culture

    I agree. Social conservatives often talk about the “destruction of marriage” or the “war on marriage,” and although I agree that the institution of marriage is currently under siege on a cultural level (and not just from “the gays,” mind you), I would argue that the State's intrusion into marital affairs has contributed to/accelerated that deterioration.

    Many now see marriage simply as a “piece of paper,” and when you view marriage as some trivial legal matter — as many couples now do — you are bound to see a deterioration in the actual commitment and moral standards involved. It works the same way any State assumption of morality does — the public (as a whole) turns its attention away from Church standards to State standards.

    If the Church were the primary area for achieving marriage status, I think we would have a clearer idea of what marriage is and what works — even though we would still have diverse options. For example, researchers could take a real-world glimpse into marriages performed in liberal churches that endorse homosexual marriage vs. those performed in any number of “traditional” settings.

    The way it is now, the public is so holistically manipulated by State definitions (whether consciously or not) that I think it's much harder to have a clear, substantive debate on a cultural level.

    That being said, in the real world, I don't think we are going to see the State walk away from giving out marriage licenses, as much as I would prefer it. Even if we were, the public has every ability to MAKE the State do so according to their wishes (as foolish as it may be).

    That's what I want to point out in this post. If we're going to say the State CAN have a say in something as debatable as marriage, you can't act like there's a one-size-fits-all approach, and you definitely can't pretend that the Fourteenth Amendment speaks to such instances. I would say stop the intrusion altogether, but gays AND straights have every right to vote in whatever definition of marriage they want. If gays can vote in pro-gay marriage legislation to the ire of social conservatives in their states, they can. Those conservatives can't then turn around and somehow say the Constitution prohibits it (because it doesn't). Instead, they should try to beat back the legislation by persuading society they're right. Again, I think it's silly altogether, so in the meantime, *I* will be trying to persuade society to drop marriage as a State issue altogether.

    As a heterosexual, I could care less if the State endorses my marriage or not. If the tides were reversed, I would be arguing for the State to stop endorsing marriages period. Like any other moral debate, the State is best left out of it altogether, because things can get really messy if the State has to start pretending to be everyone's friend. If the whole point of this type of thing is to “guide morality” in society (which I think is wrong-headed in the first place), then you can't embrace a pluralistic approach to morality (unless you believe morality is relative). To me, it makes it all even MORE pointless.

  • http://twitter.com/mattress Matt

    I also don't give a crap about my “legal” marriage, my wife agrees that if at some point it becomes significantly more advantageous for us to be legally divorced we wouldn't be opposed to the idea. Our marriage is between each other and God, the government isn't a party to it.

  • http://www.remnantculture.com/ Remnant Culture

    I agree. Social conservatives often talk about the “destruction of marriage” or the “war on marriage,” and although I agree that the institution of marriage is currently under siege on a cultural level (and not just from “the gays,” mind you), I would argue that the State's intrusion into marital affairs has contributed to/accelerated that deterioration.

    Many now see marriage simply as a “piece of paper,” and when you view marriage as some trivial legal matter — as many couples now do — you are bound to see a deterioration in the actual commitment and moral standards involved. It works the same way any State assumption of morality does — the public (as a whole) turns its attention away from Church standards to State standards.

    If the Church were the primary area for achieving marriage status, I think we would have a clearer idea of what marriage is and what works — even though we would still have diverse options. For example, researchers could take a real-world glimpse into marriages performed in liberal churches that endorse homosexual marriage vs. those performed in any number of “traditional” settings.

    The way it is now, the public is so holistically manipulated by State definitions (whether consciously or not) that I think it's much harder to have a clear, substantive debate on a cultural level.

    That being said, in the real world, I don't think we are going to see the State walk away from giving out marriage licenses, as much as I would prefer it. Even if we were, the public has every ability to MAKE the State do so according to their wishes (as foolish as it may be).

    That's what I want to point out in this post. If we're going to say the State CAN have a say in something as debatable as marriage, you can't act like there's a one-size-fits-all approach, and you definitely can't pretend that the Fourteenth Amendment speaks to such instances. I would say stop the intrusion altogether, but gays AND straights have every right to vote in whatever definition of marriage they want. If gays can vote in pro-gay marriage legislation to the ire of social conservatives in their states, they can. Those conservatives can't then turn around and somehow say the Constitution prohibits it (because it doesn't). Instead, they should try to beat back the legislation by persuading society they're right. Again, I think it's silly altogether, so in the meantime, *I* will be trying to persuade society to drop marriage as a State issue altogether.

    As a heterosexual, I could care less if the State endorses my marriage or not. If the tides were reversed, I would be arguing for the State to stop endorsing marriages period. Like any other moral debate, the State is best left out of it altogether, because things can get really messy if the State has to start pretending to be everyone's friend. If the whole point of this type of thing is to “guide morality” in society (which I think is wrong-headed in the first place), then you can't embrace a pluralistic approach to morality (unless you believe morality is relative). To me, it makes it all even MORE pointless.

  • http://twitter.com/mattress Matt

    I also don't give a crap about my “legal” marriage, my wife agrees that if at some point it becomes significantly more advantageous for us to be legally divorced we wouldn't be opposed to the idea. Our marriage is between each other and God, the government isn't a party to it.

  • http://twitter.com/remnantculture/status/20802387132 Remnant Culture

    "Did I vote on YOUR marriage?" — No, but you certainly can. http://bit.ly/cVUeKW #tcot #tlot #Christian

  • http://twitter.com/josephsunde/status/20820594432 Joseph Sunde

    My thoughts on Prop. 8: RT @Remnant Culture "Did I vote on YOUR marriage?" — No, but you certainly can. http://bit.ly/cVUeKW

  • JiminHayward

    1st. The author started with “detach ourselves from thinking of “marriage” as a right.”. Sorry. Big FAIL! The US Supreme Court has ruled on 14 different occasions that marriage is a FUNDAMENTAL RIGHT.

    2nd. Homosexuality is no more a 'behavior' that heterosexuality. The fact is there are in excess of 1,500 mammal species (including humans) where up to 15% of their respective populations and births are homosexual. Homosexuality is not abnormal. It is not a 'sin of nature'.

    Finally. The minority can not be bullied by the majority. Just because some of the population can not understand or agree that homosexuality is natural and not a moral failing does not mean the minority (homosexuals) can have their right to freedom, liberty and the pursuit of happiness infringed upon.

  • JiminHayward

    Marriage was, originally, a secular legal institution. It did not become a religious institution until late in Jewish law and Christianity was born.

    Look it up. The ancient Mesopotamians actually 'invented' marriage. See link here :
    http://ehistory.osu.edu/world/articles/ArticleV…

    It did not become a 'sacrament' for Christians until the 12th century. See link here:
    http://www.americancatholic.org/e-News/FriarJac…

    Therefor government has every right, indeed an obligation, to be involved in marriage as it is primarily a contract between two people. Presumably these are loving individuals who wish to share their lives together.

  • http://www.remnantculture.com/ Remnant Culture

    1. We can certainly debate on whether the jurisprudence leading up until now is sound or not, but that's not what my argument is about. For example, the Supreme Court may currently hold that there is a “right to privacy,” but I disagree that such a right should be recognized, at least not in the way the Court defines it (do me a favor and find where it says “right to privacy” in the Constitution, in the 1st, 4th, OR 5th amendments). But looking back on the Supreme Court's rulings on the matter shows the problem I mentioned with the government assuming any marital responsibilities in the first place. It makes people like you (or the Court) assume it IS a right. You might have a “right” to get married at a Church that voluntarily agrees to marry you, but I think it's utterly silly to act like I have a right from the State to get married. Who cares what the bureaucracy thinks about my marital vows?

    2. Whether or not you think homosexuality is something we're born with or you think it's a choice, the ACT of marriage certainly involves behavior, and the act of homosexuality is what we're talking about. People are born with a lot of different natural traits, but I don't think that has much of anything to do with how we BEHAVE or how we SHOULD behave. Morality is not about the way things are. It is about the way things ought to be.

    3. You say, “The minority can not be bullied by the majority,” but this is not always the case. (and by the way, what fantasy world are you living in?) In the United States, with the proper federalist approach (per what Madison is quoted as saying above), the majority most certainly can bully the “minority” outside of what is protected under the Constitution. That's the whole point of the Constitutional discussion. Currently, the State “bullies” smokers, rich people, pedophiles, and plenty of others based on BEHAVIOR. As I say in the post, we can debate about whether the majority SHOULD or SHOULD not bully these groups, but what I'm saying is that we have to have a proper understanding of what it CAN or CANNOT do.

    Your opinions about homosexuality are certainly legitimate points worth discussing and exploring as a society, but roughly half the nation currently disagrees with you. Thus, diversified federalism seems to be the best system in which you can prove I'm the one who's wrong. That's my point.

    But alas, I'm repeating what I said in my post. Thanks for the comments.

  • http://www.remnantculture.com/ Remnant Culture

    That is quite the non sequitur, my friend!

    “Marriage was at one point secular, THEREFORE government has an obligation to be involved in marriage”?

    You'd have to build the contractual argument up quite a bit more (why there is value in government recognition in such contracts, cost/benefit) before I'd buy into that. We probably have fundamental differences on what we think the government's role should be, so I'm not sure if we'll find agreement here.

  • http://www.remnantculture.com/ Remnant Culture

    That is quite the non sequitur, my friend!

    “Marriage was at one point secular, THEREFORE government has an obligation to be involved in marriage”?

    You'd have to build the contractual argument up quite a bit more (why there is value in government recognition in such contracts, cost/benefit) before I'd buy into that. We probably have fundamental differences on what we think the government's role should be, so I'm not sure if we'll find agreement here.

  • http://twitter.com/mattress Matt

    If you and I make an agreement between each other, of what business is it of the government? and what right does the government have to insert itself into our agreement? what right does the government have in issuing licenses to people who want to make an agreement like we have made? by issuing licenses the government is saying that only certain people should be allowed to have the agreement that we have, how does the government have the right to decide who gets to enter into voluntary agreements with each other?

    Like you said, a marriage is a contract between two people. It is not a contract between two people and an uninvited third party (government).

  • Julia

    I first wanted to say that I appreciate your blog. I appreciate how you successfully articulate your views and their merits beyond simply having them “by faith.” I appreciate this even, and especially, when I disagree with you.

    http://www.youtube.com/watch?v=EJwSprkiInE&feat…

    I just watched the above video, which made me think of this blog post. Whereas, I haven't studied the history of Constitutional law, it seems to me as a lay person that if historically the US Supreme Court has treated marriage as a right, its ruling in this case is to be expected/consistent with previous interpretations of the Constitution. You are arguing that we move away from treating marriage as a right for everyone. This in concept is appealing to the libertarian in me; however, I'm wondering how practical this really would be. It seems to me that marriage – as an institution of the state – is interwoven throughout other state laws, which would then have to be redone. How would this affect our immigration laws for example? I see the potential for this causing a number of other complications and problems.

    I believe you and I agree that it is impossible to have a perfect system, where everyone is happy, and there are no problems. This is one reason I assume you would be against a theocracy. There is no Utopia; therefore, this is not the goal. If rather equal rights for all citizens is the goal, and two ways of meeting this goal are to grant state marriage to homosexuals or take away state marriage from heterosexuals, letting gays marry seems to me the simplest route to meeting the goal. My common sense tells me that when dealing with a bureaucracy as large as our government, the simplest solution is the least likely to screw up other stuff.

    Therefore, I think the first question on the table is whether or not homosexuals should be given equal rights – whatever those rights are currently, whether we believe they are frivolous, lacking, or founded.

    I would argue they should be.

  • http://www.remnantculture.com/ Remnant Culture

    Again, this is a problem with the Court saying it is a right in the first place. Rights are not given by government, they are given by God, and governments cannot *give* rights, whether it be through judicial activism or legislation. Governments can only *protect* rights by contract/enforcement (e.g. the Constitution). Some people disagree with that view, but that's how our founders saw it, and it's critical for understanding our disagreement. What you call “equal rights” are not really equal rights at all; rather, it is simply equalizing recognition under the guise of “rights.”

    That being said, I agree that it is impractical to assume that marriage will be “let go” by the government It is indeed interwoven in our system. I don't agree, however, that this means that States need to all recognize any format of marriage in the world. Even if we recognize gay marriage, we are still discriminating against any number of formats/arrangements.

    For example, we will still discriminate against polygamists. We will still discriminate against animals. We will still discriminate pedophilia. Where do we draw the line?

    You can try to equate homosexuality with race or gender (as Ted Olson and many others do), but it doesn't work. Race and gender are not defined by behavior *in a public sense* — they are entirely different matters. Whether you think homosexuality is a biological disposition or a behavioral choice (or a mix of the two), when we talk about marriage and morality in the public sphere (which should be defined by the public, or, to use a psychological term — “the tribe”), we are talking about how we want to recognize behavior. As I said in a response to another reader, morality is not about the way things are, but about the way things ought to be.

    In other words, I would argue that the desire to have multiple wives is just as “natural” as is the desire to have sex with your own gender. For example, are you going to tell me that (most) men are born with some automatic desire to have sex with only one woman? No. Morality — however you define it — is what leads to those types of conclusions. What is natural vs. how it is executed are two different things. And what we're talking about is government assuming the role of how it's executed.

    But let's return to the impracticality of this — I want the government to stay out of defining morality, but the REALITY is that it is currently in the business of defining it. Again, we're not talking about *rights,* we're talking about defining morality in the public sphere. Therefore, IF a [representative] government IS in that business (as ours is), I don't think some judge should be able to FORCE what that definition is. It should be up to the people — the cultures. It is a much more inefficient way of representing culture, but it's the reality.

    I think it is bigoted to pretend that morality should be defined in the most universal way possible. That excludes an enormous portion of the population from democracy. If conservative Christians are part of government, and gays are part of government, why should we only pay attention to the gays when it comes to defining proper BEHAVIOR?

    If you believe morality is relative (which I don't), then I can see why you would want society structured like that. Again, the best way to do that in a just way is to keep government out. But now that government is IN, I don't think you can just allow whatever you want. To me, that's like forcing church's to accept a universal approach to salvation, because we are in essence making the government the church on matters of marriage.

    The best option given the reality is, therefore, diversity. It isn't perfect, but it allows for mobilization and debate among those who disagree.

  • http://twitter.com/remnantculture/status/20910902691 Remnant Culture

    Discussion is picking up on the gay marriage post. What are your thoughts? Comment on the blog: http://bt.io/FncU

  • http://www.facebook.com/people/Theo-Gagner/74600918 Theo Gagner

    Now I am confused Joe. You seemed to be moving towards libertarianism, but this makes a strong break towards a Pelosi-ish embrace of government warmth. There are a few points of specific contention I have to take with this. 1) That the g…overnment removal of proposition 8 is a pantamount to government “giving” rights. As you are now well aware there are certain benefits only affording to those who are married: shared healthcare, tax breaks, guardianship in the case of spousal sickness, child custody in the case of death of the spouse… You relate this to the entitlement movement of healthcare, food, and the other things that the country has decided it is entitled to. I'm not sure it is entitlement to want the same legal tax breaks and spousal rights as everyone else. “The government never had a good reason to sanction heterosexual marriage, but at least it can try to claim the benefits of pro-creation and family rearing.” If that is the situation you proclaim (cough…Pelosi…cough) the gov't ought to begin with the group that is bringing children into the world without means, due diligance, a quality attention: the heterosexuals. 2) This is clearly a divisive issue in which religion plays a large part. By definition, then government has no buisness sactioning marriage; heterosexual or homosexual. 3) If the government does saction a act, it must at least hold the saction at a level to create “seperate-but-equal institutions. However, we all know how effective those institutions are at creating a equitable freedom for people. 4) Perhaps the weakest part of the argument, though, is the call to let the voters decide it. You mark the country as split about 50/50 on the issue, but 5 years ago pro-gay marriage would not have broke 25%. If instead of Brown vs Board we had a general vote on whether blacks should be integretated into the school system, when would they have gotten in? Your mental discomfort at the idea of gay marriage does not trump the legal ramifications of what it actually amounts to for the rights of gay people. The minimum “right” in this country is to have equal opportunity to make one's own fortune; indeed you have written about it more than once. Those are rights, that is what the Bill of Rights is about, equal opportunity and freedom. Gays do not have these standards met for them yet. While other minority groups worry about entitlements, the gays are still back with the 1930s blacks with this law.

    This is why momentum swings away from the Republican party. This is a exceptional example: you shout the principles of freedom from government interference as the highest form of medicine, then hide behind the very strictest of government control when you become uncomfortable with a group of people. It will not diminish the value of valid heterosexual marriages when homosexual marriages are no longer witheld. If it does diminish your marriage, then your foundation was nothing to begin with.

    You can try and wiggle and grasp and do all the things a politician does when rational thought conflicts with their opionion; you know, throw shit up and hope something sticks. At the end of the day, though, its still just shit.

  • http://www.remnantculture.com/ Remnant Culture

    First of all, you are pretending that I'm advocating a ban on gay marriage. I say no such thing in my post. All I say is that the State's should be able to decide. You compare my views to Pelosi, but although Pelosi may want to raise my taxes and hand out stimulus credits (which I disagree with), it is silly for me to claim that is unconstitutional. That's my argument.

    Second, many of the disagreements you raise have already been addressed in numerous comments/responses on my blog, so either you haven't read them yet or they don't satisfy you. If it's the latter case, we've probably reached the key points of disagreement, but I'll give it a shot.

    1. I don’t think “the removal of prop 8” is pantamount to the government giving rights, but I do think a discussion of rights is a good place to start for understanding the fundamental issues. You yourself bring up civil rights later in your argument (in your comparison to racial segregation), I assume because you think the discussion is relevant (though we disagree on whether homosexuals should be included). In short, the government shouldn’t provide breaks for any married couple, gay or straight. Under the current system, I’m fine if we want to grant the same benefits you mention to gays who engage in contracts and I think we should. BUT I THINK WE SHOULD VOTE ON IT. Some judge has no place deciding that.

    As for my statement about pro-creation and family rearing I agree with you. I thought I made it clear I think those are bogus reasons. My only point was that there are at least SOME state-interest arguments out there. I can’t think of any arguments (even lame ones like procreation or family rearing) for why gay marriage is in the State interest.

    2. I’m not sure what your disagreement is. With your #2, you simply make a statement. I agree with the statement you make. Defining marriage should be (ideally) left up to the church or house of worship it is performed through. This leaves room for gay marriages to occur in churches that accept that as legitimate. (Does that represent “discomfort” of some kind? I don't think so…)

    3. I already answered this in my comment on the blog. You act as though recognizing gays will make things completely equal, but we will still discriminate against plenty of other people who want marriage’s definition to be even more liberal. You might think it’s ok for marriage to mean marriage with a dolphin and a woman or a man and 5 women – and that’s fine with me if people want to vote for it – but you can’t act as though recognizing homosexual behavior is the only option left if we’re going to attain maximum “equality.” We’re talking about morality, and in this case, your promoting *supposed* universalist “equality” (i.e. relativism). I would argue that universalizing things isn’t *necessarily* moral.

    4. Wow. If it’s the weakest part, that stinks, because that pretty much IS my argument! ☺ Here you’re getting into rights (which according to your #1 is silly), and you try to win your argument by claiming morality shifts among the populace and by pointing to racial discrimination in the public schools. Race and gender preferences are entirely different things from homosexuality, which I also outlined in the above comment. Marriage involves behavior, and homosexuality – in the PUBLIC definition – involves behavior as well. Similar to #3, we discriminate against behavior ALL THE TIME, whether that is ok or not. Again, I am not making an argument that gay marriage SHOULD or SHOULD NOT be legal. I’m saying that States and locales have every RIGHT (see Tenth Amendment) to vote on it. My reasoning is this (quoted from above comment)

    “Morality is not about the way things are, but about the way things ought to be. In other words, I would argue that the desire to have multiple wives is just as “natural” as is the desire to have sex with your own gender. Are you going to tell me that (most) men are born with some automatic desire to have sex with only one woman? No. Morality — however you define it — is what leads to those types of conclusions. What is natural vs. how it is executed are two different things. And what we're talking about is government assuming the role of how it's executed (WHICH IT SHOULDN'T BE DOING IN THE FIRST PLACE).”

    Race and gender do not fit in the above model because they are not fundamentally about BEHAVIOR.

    Next, you go on about how I have “discomfort” about gay marriage, which I mention nowhere in my post. I say that in the ideal world churches should be able to administer gay marriages according to their will. What’s with your assumptions about my beliefs on the actual issue? Just because I think marriage is not a sacred right and dumb majorities are free to discriminate against behavior if they choose (outside of the Constitution, Bill of Rights, of course), does that mean I am uncomfortable about gay marriage? I think cigarette bans are stupid and should be revoked, but Minnesota is free to pass one if can't persuade them otherwise. (I have an idea! Maybe I should just become a judge and invent some kind of “right to smoke” in the 14th Amendment!!??)

    I am not hiding behind government control — I'm not saying anything about what the government SHOULD do in this instance. Regardless of what I think about certain government controls, I can’t deny that in a democracy people are able to vote in (certain) dumb things legitimately.

    In short, promoting specific liberty-prone policies is entirely different than promoting a government of the people (I am doing the latter…can you tell yet?). The people often angry and irrational (about “religious” things), as Madison argued, which is why federalism is important. Gay marriage opponents clamor for an eradication of liberty via Amendment (Madison’s first consideration), you clamor for the FORCING of everyone to have the same opinion (Madison’s second consideration). I am clamoring for a system that CONTROLS THE EFFECTS OF FACTION (i.e. republican, democratic federalism)…this is Madison’s CONCLUSION after denying the first two options.

    My argument isn’t fundamentally about morality, though the nature of morality must be discussed to understand it. It’s about the Constitution and about process.

  • http://www.facebook.com/people/Theo-Gagner/74600918 Theo Gagner

    For those of you confused by this follow up post, Joe has a response to my last comment on the facebook link. 1 thought I had better bring up before it runs out of my mind is this: If you believe that gays should have some sort of contract instead of marriage under law, then it is YOUR job to push it NOT homosexuals! Public support for gay marriage has turned around in the past few years because conservative oppostition to gay marriage has not pushed for civil unions.

    A fundamental disagreement we have here is whether or not homosexuality is a choice. It is always interesting to me, how people who claim it is a choice think that they could possibly know. Typically, gay people associate with liberals and liberals do not purport that this is the truth. Typically, people who claim that gays are gay by choice are people in the position to know the least. Their knowledge is anecdotal and blog knowledge (the lowest form of information), where they search and find everything to back up their position. Whereas I lived with a gay roommate, I am in a position to know. I am not going to go any farther than that except to say I have no reason to sway my opinion; I was no good friends with him, and I held my postion before I met him. If you are against gay marriage you LOVE if it is a choice, you need it to be a choice, because then it makes it so much easier to justify your opinion. If it is a choice, then they just have to choose not to be naughty and they can get married! Great! It is so easy, that's why gay teenagers do not have the highest suicide rate of any demographic. That's why “coming-out” to your parents is so easy, because you know they'll be SO excited. That's why people never “come-out” when they are older, because eventually after a lifetime of persucutment, you get sick of being gay. Well, I am already beating on that drum, so how we talk about why gay marriage killed the dinosaurs.

  • http://www.facebook.com/people/Theo-Gagner/74600918 Theo Gagner

    Top 17 Reasons Why Gay Marriage is Wrong

    17. Gay marriage will change the foundation of society; we could never adapt to new social norms. Just like we haven't adapted to cars, the service-sector economy, or longer life spans.

    16. Gay culture is a new fad created by the liberal media to undermine long-standing traditions. We know this is true because gay sex did not exist in ancient Greece and Rome.

    15. There are plenty of straight families looking to adopt, and every unwanted child already has a loving family. This is why foster care does not exist.

    14. Conservatives know best how to create strong families. That is why it is not true that Texas and Mississippi have the highest teen birthrates, and Massachusetts, Vermont, and New Hampshire have the lowest. This is a myth spread by the liberal media.

    13. Marriage is a religious institution, defined by churches. This is why atheists do not marry. Christians also never get a divorce.

    12. Children can never succeed without a male and a female role model at home. That's why our society has no single parents.

    11. Gay marriage is not supported by religion. In a theocracy like ours, the values of one religion are imposed on the entire country. That's why we have only one religion in America.

    10. Obviously gay parents will raise gay children, since straight parents only raise straight children.

    9. Straight marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn't be allowed to marry because our orphanages aren't full yet, and the world needs more children.

    8. Gay marriage should be decided by the people and their elected representatives, not the courts. The framers checked the courts, which represent mainstream public opinion, with legislatures created to protect the rights of minorities from the tyranny of the majority. Interference by courts in this matter is inappropriate, just as it has been every time the courts have tried to hold back legislatures pushing for civil rights.

    7. Straight marriage will be less meaningful if gay marriage were allowed; the sanctity of Britany Spears' 55-hour just-for-fun marriage would be destroyed.

    6. Civil unions, providing most of the same benefits as marriage with a different name are better, because “separate but equal” institutions are a good way to satisfy the demands of uppity minority groups.

    5. Straight marriage has been around a long time and hasn't changed at all; women are still property, blacks still can't marry whites, and divorce is still illegal.

    4. Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.

    3. Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make you tall.

    2. Being gay is not natural. Real Americans always reject unnatural things like eyeglasses, polyester, and air conditioning.

    1. METEORS and VOLCANOES.

  • http://www.facebook.com/people/Isaac-Kremer/100001257471069 Isaac Kremer

    I agree that Government legalizing gay marriage as a “right” may be a good intention, but you know what they say about roads paved with good intentions… The fact is, the government has always had a hand in whom a person can marry. Should we lift all of that?

    We have been given the examples of polygamy and beastiality, but what about incest and age restrictive marriages? If we stretch the definition of marraige to Man/Man Woman/Woman, what's to stop stretching it to Brother/Sister Cousin/Cousin Uncle/Neice Aunt/Nephew 30 yr Old/15 yr Old, etc…? Because they “genuinely” love eachother, and I'm sure we can find some scientists and researchers that can say it is genetic and cannot be changed. Who is the government to tell them who can and cannot be married?

    The modern definition of marriage as defined by the government was intended to foster an environment where a man and woman can start and raise a family. Do I think the government's role in marriage (gay or straight) should be changed? Absolutely! Marriage was never initially a government institution but an agreement and recognition between 2 (or more) people. @JiminHayward, do you think the Mesopotamian government (however rudimentary it may have been) gave tax breaks to married couples at that time, or handed out marriage certificates? Doubt it. Just because it didn't start as a religious institiution (but was very much impacted by religion) doesn't mean it is under the domain of government control.

    While I think homosexuality is more of a learned behavior intentionally or unintentionally (I think it's more Pavlovian Conditioning than anything), they are free to be a practicing homosexual and I have no problem with that. If they try to force me to accept it as completely natural and condoned by God, then that is infringing on my rights and I can give them a few bible verses and examples to combat it. But this debate is not about homosexuality in the church (while it makes for good discussion), this is about who should be the final arbiter in deciding what marriage is. The people or the state?

  • aarondarrisaw

    This post was so interesting and thought-provoking that I simply had to write my own blog post about it. A comment would have been way too long. You can read it here: http://bit.ly/cWpVUk

    I must say though, I tend to agree with the author of this blog when it comes to this issue. I'm not persuaded by the idea that “same-sex marriage” (marriage period for that matter) is a “right.” It is an authorized institution, which may be governed by various human systems. As such, I have no quarrel with homosexuals arguing their case through our legal system. I am leery, however, to accept the argument that marriage is a human “right.” That kind of argumentation is, in my judgment, unsound and unjustified.

    So, without, debating whether or not I think “same-sex marriage” is morally upright (which I don't), my issue is with the philosophical credibility of arguments with are in favor of “same-sex marriage.”

  • http://www.facebook.com/svenskfisk Ethan Quincampoix

    I realize I'm a week late on this comment, but in my defense I'm one of those libertarians and don't have your blog beamed to my hippie iPad every morning over fair trade Guatemalan coffee. So as a (GASP!) homosexual, and after reading every last comment so far, I'm going to give this a go.

    I'm in no position to say whether or not marriage is a right. I believe Theo made the point that certain marriage benefits being denied would infringe on our fundamental right to pursuing life and liberty and riches all that American jazz. And it's also been made potently clear that marriage is an ever-changing institution that teeters between religious union and governmental sanction. In some cultures, marriage is forced; in others, marriage simply never was an issue. But I will say this: marriage, in the United States, is a between two taxpayers allowing them certain benefits ranging from inheritance laws to visitation rights (and to those ever coveted tax breaks).

    But, unfortunately, if you define marriage as between two people, you get three possible combinations: man-woman, man-man, woman-woman. Even more unfortunately, men want to marry men and women want to marry women. Well good heavens, let's start shutting down THAT nonsense!

    Your main (quasi-) moral argument is the ubiquitous “If we allow gays to get married, what's next? Men marrying goats? Polygamy?” Which is a fine argument, and perhaps a bridge we'll have to cross one day when all hell breaks loose. But here is, in my opinion, where that argument falls short: “The Gays” aren't trying to redefine marriage. In fact, opposers of gay marriage have only just started defining it, putting it in their constitutions, and putting a solid definition on it. A man wanting to marry a man is not the same as a man wanting to marry a dolphin or seven men, it's wanting the traditional marriage between two people for themselves, but they're being systematically shut out. Whether it's a right or not, it's wrong to deny these people something that their equals are receiving. And we can argue till the cows come home that the strict definition is between a man and a woman, but that's been changing all the time. You also say that denying blacks to marry isn't the same as denying gays? It's the exact same thing, but you refuse to accept that someone could possibly be wired differently than you. I was born a homosexual (ask anyone who knew me in my youth), just as much as someone is born black. For them it's genetics, for us it's not entirely understood. But when it comes down to it, Joe, I have no intention of redefining marriage, but I do have every intention of fighting to be treated as an equal, taxpaying, working citizen of the United States. It's a matter of equality. And when seen from that perspective, Ted Olson's statements make a lot more sense. I wonder if this is where you begin to misunderstand where the opponents of Prop 8 were coming from. You wrote, and I quote:

    I don’t think there is any remotely valid State interest in endorsing homosexual marriage, other than making homosexuals feel “accepted”…

    It was at this point in your post where you actually hurt my feelings and, frankly, I felt attacked and deeply offended. You talk about homosexuals as if they're some subset, some lower life form than you, a sniveling group of children that need to be placated by giving them extra privileges and new toys to play with. Stop thinking of homosexuals as some group of extremist, morally bankrupt underlings and start regarding them as your peers, countrymen and equals. Then maybe you'll begin to understand why we want to get married so badly.

  • http://www.facebook.com/people/Theo-Gagner/74600918 Theo Gagner

    @aarondarrisaw If marriage is indeed, not a human “right”, which seems to be the significant part your argument, they you have no right to it either. The argument for gay marriage is that one group does not have equal access to the rights you have. If your opposition is on that basis, then your argument must be that no one should be married by government (not a terrible position to take). Of course this is why support has come back towards gay marriage is that cop-out position was taken years ago. However, straight people are still being married by the government.

    A simpler example of what you propose. “You are a child justifying the starvation of your brother” Stance: It is not the job of the father of the house to provide food. Yet you sit at the table, and eat the food he has provided while your brother still starves. This is not philosophically credible, or morally sound either. Proclamations followed by inaction mean nothing. Unless you are using the democratic process to vote for a candidate who's platform includes dissolution of government sactioned marriage, it is a meaningless statement.

  • http://www.remnantculture.com/ Remnant Culture

    Thanks for the thoughts, Ethan. If you've already read my previous comments, then I'm afraid I don't have much to add.

    I would just like to emphasize (once again) that my argument has nothing to do with what the actual definition of marriage looks like — it is only that states should be allowed to define it for themselves. I'm against government defining marriage, period — because it leads to the kinds of personal/emotional/religious/whatever debates we're having here. Such discussions are much better had on a personal, cultural level where Church A can rally together and Church B can rally differently (or likewise in whatever secular institution(s)).

    For example, the reason I bring up polygamy and animal marriage isn't that I think if gay marriage passes we will all of sudden move down this slippery slope. I simply use them as examples of ways we COULD redefine marriage if we wanted to. I think Americans can vote those things in if they want to, and if I disagree, then I can vote against it. My point isn't to compare these behaviors (or contrast them), but to to simply point out that marriage can (and has been) open to any number of formats.

    As another example, you claim that “traditional marriage” is between two people, but we all know that polygamy used to be (and still is) VERY “traditional” in some cultures. The “cultural conservatives” miss the mark as well when they talk about “traditional.”

    For me, on a State level, it doesn't make much difference. My stance at the poll would be to get rid of government-endorsed marriage altogether. Your stance is to make government endorse gay marriage. Many “cultural conservatives” want to oppose that. All I'm arguing for is for what Madison argued for.

    I understand that given this emphasis we will still disagree on race vs. gender preferences (I've already offered my opinion in other comments) and the matter of “equal rights” in marriage. I'd respond (i.e. repeat myself) but I think we probably both have a clear idea of where we're coming from and we just fundamentally disagree on the fundamentals of moral philosophy/natural tendencies/God's design/yadda-yadda-yadda.

    As for the last comment, I apologize if I hurt your feelings in any way. The same argument could go for why the government endorses any number of behaviors (including STRAIGHT marriage). It wasn't meant as a personal slight against homosexuals (i.e. that they are a “sniveling group of children”) but just a basic point on what the role of government should be. In short, I think government endorsing any kind of morality comes down to people wanting to feel “accepted” — no matter how mainstream the view is. Government's endorsement of STRAIGHT marriage (regardless of absurd “procreation” and “family-rearing” claims) is likewise (in my view) an attempt to make people feel accepted. I say get rid of it all and leave it to the people.

    Thanks for the dialogue.

  • aarondarrisaw

    I'd agree with you. Well…I'd agree with you partly. However, I do not pretend that my argument somehow works for heterosexual marriage and not for homosexual marriage. It doesn't. This is why, at the end of my post, I said that homosexuals ought to continue to argue their case through the legal system of this country. They have as much freedom to argue their case as heterosexuals do when it comes to the issue of marriage. Although I will freely acknowledge that heterosexuals have a leg up in the debate as it is. In any event, I was simply trying to discredit the common argument that I hear in favor of “same-sex marriage.” I just don't find it philosophically sound to say that marriage is a RIGHT to which homosexuals are entitled.

    Furthermore, the example you offered (about the child and his brother) falls victim to the very analysis I offered in my argument. In your example, you presuppose or assume that the starvation of the brother is WRONG, because it is his RIGHT for him to have food just like his kid brother. But that is precisely what I was arguing against. I am denying your assumption that marriage is a right that should be given to gays as well as heterosexuals (or in your scenario: that food should be given to the brother just like the child). What justifies your belief that marriage (i.e. food) is right that should be given to gays (i.e. the starving brother)?

    You also denounced the government's favoring of heterosexual marriage over homosexual marriage (i.e. the child having food and brother starving) as “not…morally sound.” However, you can only fault the government for moral deficiency once you've proved that marriage is a right. Because if marriage is not a right, then the government has no moral obligation to allow homosexuals to have it.

  • http://www.facebook.com/svenskfisk Ethan Quincampoix

    There you go throwing the word 'right' in there. I mean 'equality', not 'equal rights'. And while I find James Madison's philosophies seductive and reasonable, I'm not arguing that aspect of your post. You're still coming from a place where homosexuals and bisexuals are somehow less than you and need to be placated. Saying that we simply disagree on “natural tendencies” and “God's design” is exactly my point- homosexuals are unnatural and ungodly. You don't see them as equals, you see them as morally bankrupt and perhaps even slightly inhuman. And you brush this off as a small difference in worldview. Even if you think it's not part of God's plan, that's God's deal and even Jesus didn't dole out judgement to groups of people based on an ancient law in the Torah. I simply implore you to take a step away and see this from another perspective where homosexuals aren't unnatural. Perhaps from my perspective; or imagine, God forbid, that your own son in 16 years identifies as a gay or bisexual man. Would you want yourself, or him, to be viewed that way? To have your or his validity as a citizen and person brought into question? Like I said, I'm not arguing for a redefinition of marriage, I'm asking for people to see that I cannot fit into the current popular conception of marriage, and that it is unfair to bar me from marriage because of it. Am I asking for 'acceptance'? Yes, in a way I am.

    As per your other points, you make them well and see no point in arguing them. In some ways it's a ridiculous plight, marriage isn't all that important in the grand scheme of things. But leaving it up to popular opinion and votes isn't changing the fact that a group of people is being deliberately denied something that the majority group has (whether that be a 'right' or a simple liberty of citizens). It's a cowardly, lazy, and very easy thing to say when your life isn't being affected. In a perfect republican world, we'd let everything be decided by the people but what opponents of Prop 8 are saying is that sometimes a good old fashioned vote doesn't do the right thing (I think Mr. Madison would agree with that). But waiting for the right thing to come along isn't selflessly democratic, it's doing nothing. And watching wrongdoing and refusing to do anything about it is, perhaps, the greatest evil human beings are capable of.

    That is, however, if you view the maltreatment of homosexuals as wrongdoing. But you must first begin to view them as your equals, and not as reprobates.

  • http://www.facebook.com/svenskfisk Ethan Quincampoix

    I appreciate your stance, I honestly do. Give the legal system a chance. Even as a strong supporter of gay marriage, I don't want it because of a strongarmed decision made by one person in ultimate power (I do hope nobody wants that, but it seems some gay activists imply it). But Let's keep the word “Right” out of it. As it is, heterosexuals can get married and homosexuals cannot. That is, in simplest terms, unjust. Ordinary citizens are being denied something their equals have full access to; and leaving it to a vote, as Mr. Sunde and that dapper Mr. Madison suggest, isn't rectifying the injustice- it's perpetuating it. And as a nation, we must hope our judicial system eradicates such injustice. Whether or not it's unjust is where the opinion should differ, not blind hate or misunderstanding.

  • http://www.remnantculture.com/ Remnant Culture

    I'm not sure if we're going to make any further progress on this. I don't see homosexuals or bisexuals as “less than me” — this is a discussion about behavior, not individuals. On this, I don't see any point in arguing because we obviously disagree, and I doubt we are going to change each other's minds. I understand it is hard for you to see my position as strictly related to behavior, but as I've mentioned elsewhere about natural tendencies to do this or that, I do think this issue (nonpolitically) comes down to a different understanding of behavior and nature.

    In short, I am making the strictly political argument (1) because this blog discusses such issues, and (2) because making any argument otherwise (about personal behavior) is such a hard topic to touch. Both sides can rarely persuade each other, because the issue has to do with fundamental personal and/or religious differences. I don't want to give the impression that the argument is about homosexuals themselves, because again, this is about government regulation of behavior, not the individuals themselves. I understand that's a distinction that is meaningless to those who disagree, but it means something to me.

    I hope you can understand, despite the way it appears from your perspective, and, again, thanks for your perspective.

    …BTW, I accidentally “liked” your comment above and there is no way to UN-like it. Not that I “dislike” it, but given our disagreements I just didn't want you to think I was trying to being light or uncouth. Just an accident :)