Yesterday’s dismal gay marriage vote, in which eight Democrats joined a unanimous Republican Party to destroy gay marriage for New Yorkers, demonstrated a lesson that Democrats have learned all too well in the last few months — our party can’t hold a line. Republicans will always vote together, but Democrats will always defect. Why?
There are probably three reasons. The first is ideological. Liberalism, like it or not, is premised on nuance. Nuance makes bad politics, but good policy, so it’s not a value we should mortgage lightly. Modern conservatism, on the other hand, is largely premised on authoritarianism. They respect party authority, because their ideology requires that authority be respected (at least they’re consistent). We’re bad at “whipping” party members into line (and it’s not because we were trying to make Albany look productive, either).
The second is demographic. We’ve become a big tent party. We broadened our positions to win elections across the country, and this is the price we pay: we lose the occasional big-ticket vote. Republicans, on the other hand, are in the process of narrowing themselves, a shift to which the electorate has only partially responded. Consequentially, we’re stuck with previously-electable Republicans who hold uniformly shocking conservative positions. It’s not a good place to be.
The third, unfortunately, isn’t something we can blame on others. At the end of the day, we’re lacking in basic political leadership. “Whipping” can only get so many votes — messaging will get the rest, and Democrats have never been good at messaging. 2008 was frankly anomalous, a rare confluence of an unwinnable election, Republican messaging so abysmal as to acknowledge its unwinnability, and a gifted Democratic spin team. The last element has been missing lately, while the Republicans have, again, found their gifts for oversimplifying, underthinking, and generating snappy-but-deceptive catchphrases. If they can leverage those gifts into a rebuilt party, conservative victories will be undeserved and insulting, but no less real. We need to regain our voice in the spin wars.
Just so, in New York’s gay marriage debate, until zero-hour, when droves of intelligent, gifted Democratic orators suddenly came out of the woodwork (seriously — let’s hear it for Schneiderman and Squadron), our message lacked the fierce urgency of our opponent’s. We’re having the same problem at the federal level with the healthcare debate, where Democrats seem to have no setting between “boring” and “needlessly inflammatory.” Say what you will about the Republican Party, but they’ve managed to perfect a method of making “needlessly inflammatory” acceptable in modern discourse. It might be time to emulate the tactic.
So close….so close.
It’s the Big Tent and a public that is not as keen on gay mariage as Democrats think they are. This was clearly a bridge too far. But hey, you’ll always have Vermont!
Posted by Mike at The Big Stick | December 3, 2009, 10:40 amFalse: we have a majority for gay marriage here. That’s why it passed the Assembly by an overwhelming super-majority. Senate district sizes and allocation are built to favor Republicans, however, because the last Census was done under Republicans, and the result is a house that’s more conservative than the state it purports to represent.
Posted by ACG | December 3, 2009, 11:25 amYou have to think about national politics. If any of those guys have aspirations beyond Albany, they aren’t going to out that albatross around their necks.
Posted by Mike at The Big Stick | December 3, 2009, 11:45 amNational aspirations as in, New York Senate or Congress? Where both Senators support gay marriage, and Jerry Nadler introduced the anti-DOMA bill? You’re reaching…
Posted by ACG | December 3, 2009, 11:48 amI think any big office. The governor’s mansion, the Senate, etc. Let’s make this easy – what reason did the defecting Democrats give?
Posted by Mike at The Big Stick | December 3, 2009, 11:50 amGov. Paterson’s the reason the bill advanced this far in the first place… sooo I wouldn’t say that supporting gay marriage keeps one out of the governor’s mansion…
And they didn’t. Sen. Diaz gave a long rant about “family values”; no-one else spoke against it.
Posted by ACG | December 3, 2009, 11:54 am“Gov. Paterson’s the reason the bill advanced this far in the first place… sooo I wouldn’t say that supporting gay marriage keeps one out of the governor’s mansion.”
I’m sorry – did I miss an election in NY or something? I wasn’t aware that Patterson had ever actually run for governor.
So then it sounds like a lot of speculation. Here’s what we know: Yes, a majority of New Yorkers do support gay marriage, but that majority is very slim (51%). The state senators who voted against this bill were all from conservative districts in Long Island or Upstate New York. I’d say that once again, this is a good example of why it’s important that there be equal representation in the senate, that way you can’t have Manhattan dictating policy to the rest of the state.
Posted by Mike at The Big Stick | December 3, 2009, 12:11 pmHeavens no! We wouldn’t want political power tied to population!! Can you imagine!??
And Spitzer supported gay marriage:
http://www.nytimes.com/2006/10/07/nyregion/07gays.html
As does Cuomo, the likely next governor:
http://www.nydailynews.com/blogs/dailypolitics/2008/06/cuomos-got-patersons-back-on-g-1.html
So the point stands: New York supports gay marriage, the Senators don’t have any bigger dreams than the Assemblymembers (who roundly supported gay marriage), and if they did, they’d be rewarded, not punished for it.
Posted by ACG | December 3, 2009, 12:20 pmExactly – if it was tied to population more of the country would look like Manhattan – which would be a real mess. I can’t imagine a worst example to follow…social stratification, population exodus, no economic diversity…yikes.
Your conservative voters just had more influence it seems. I think this is mostly sour grapes.You all tried the democratic process and failed. I guess you can just go back to court challenges, which seem to be the best bet for gay marriage proponents.
Posted by Mike at The Big Stick | December 3, 2009, 12:24 pmManhattan only has about 10 out of 100+ Assembly districts… and the only problem you identified that’s actually real is the economic diversity issue, which is offset by the commuter population anyways. Otherwise we’re actually doing pretty swell down here.
And the democratic process never ends. We’ll try again with a new legislature next year. And maybe not conservative voters — but out of state money, like in Prop8, again appears to have made a difference.
Posted by ACG | December 3, 2009, 12:42 pmOh Ames – I DO wish you would actually post about NYC once in awhile. Your little city is not doing well at all. Carpetbaggers like yourself need to start trying to figure out why.
The few statements that did come out from the NO voters seems to be that they felt this kind of issue was a misplaced priority given the state of the economy and other woes. But hey, liberals have their agenda and why stop for jobs. Misplaced priorities I’m afraid…it’s been the hallmark of the Obama era so far.
Posted by Mike at The Big Stick | December 3, 2009, 12:53 pmAhem. They resolved the DRP before the gay marriage vote. And to your post, the last CBO estimate pegged jobs created by the stimulus at at least 600,000.
Posted by ACG | December 3, 2009, 12:57 pmLet’s see…$787 billion / 600,000 jobs = $1.3 million per job.
What a bargain!
Posted by Mike at The Big Stick | December 3, 2009, 1:21 pmCBO appears to credit greater-than-expected weaknesses in the economy over any failure of the recovery plan.
http://cboblog.cbo.gov/?p=433
Posted by ACG | December 3, 2009, 1:32 pmSee? “Following the Senate’s passage of the deficit reduction plan approved very early this morning by the Assembly…”
Posted by ACG | December 3, 2009, 12:58 pmI don’t follow how the DRP creates jobs. If anything, doesn’t it reduce jobs?
Posted by Mike at The Big Stick | December 3, 2009, 1:21 pmYou’re confusing matters. The DRP was the state deficit reduction program, from which you said the gay marriage vote distracted. I explained that the DRP was passed by the legislature before the gay marriage vote, meaning that, if legislators voted no for fear of a “distraction,” they were hiding behind a nonexistent shield.
Posted by ACG | December 3, 2009, 1:25 pmI never said that gay marriage distracted from the DRP. I said it distracted from economic matters. You just assumed I meant the DRP. I meant jobs, etc.
Posted by Mike at The Big Stick | December 3, 2009, 1:36 pmNow you’re just embarrassing yourself. I suppose FDR should’ve put off World War 2 to focus on the Depression, and Lincoln should’ve let the South secede, since the national bank issue could resurge at any minute. What happens to a dream deferred?
http://andrewsullivan.theatlantic.com/the_daily_dish/2009/12/q.html
Posted by ACG | December 3, 2009, 1:41 pmSo now we’re comparing gay marriage to the Civil War and WWII?
Posted by Mike at The Big Stick | December 3, 2009, 1:49 pmThe point is, “The time is never right for civil rights.” But they have to be tended to, or the rest is meaningless.
Posted by ACG | December 3, 2009, 1:51 pmIt’s not a civil right but…force the issue all you want. Just don’t complain when the effort fails.
Posted by Mike at The Big Stick | December 3, 2009, 1:54 pmMeh, I guess the issue of its urgency collapses to the issue of its merit, generally. So I’m not going to convince you. But whether or not this is a “distraction” ultimately isn’t severable from the question of whether it’s a good idea. And we’ll get it right some day. Look anywhere and you’ll see where the forces of history are pointing. Bigotry dies hard, but it always dies.
Posted by ACG | December 3, 2009, 1:59 pmI think you have a VERY, VERY, VERY long road ahead of you. If I was a betting man I would guess less than 50% of the states will approve gay marriage in the next 10 years.
Posted by Mike at The Big Stick | December 3, 2009, 2:02 pmJust as an FYI – opposition to gay marriage does not = bigotry. That is exactly the kind of language that loses support for your cause.
Posted by Mike at The Big Stick | December 3, 2009, 2:03 pmIf not bigotry — temerity in the face of human suffering? Insubstantiated cowardice?
As for timescale — the legal consensus is done. We just need a favorable Supreme Court. That may not happen for a decade or more. But DOMA will be gone by the end of Obama’s second term, without a doubt, and then the only difference between state-by-state marriage and nationwide solemnization of marriages will be that those states that choose to remain backwards will lose out on a tax base.
Posted by ACG | December 3, 2009, 2:09 pmHuman suffering? Talk about overreach. Where is your pity for the polygamists who are ‘suffering’?
It’s interesting Ames – I was just talking to Z over at It’s the Thought That Counts about this very subject. According to her (and she’s a Lefty like yourself) there is no liberal plan to use the Supreme Court to enact gay marriage. She believes that advancement of gay marriage through the state legislators is the consensus approach. I smell disagreement!
I think that most of the states that would lose this mythical gay tax base, probably don’t have much of one now.
Posted by Mike at The Big Stick | December 3, 2009, 2:16 pm> I smell disagreement!
!!!NEWSFLASH!!!
LIBERALS LACK HIVE MIND, SOMETIMES DISAGREE, STUDY SHOWS!
Cont’d on p. 4
Posted by lanfranc | December 3, 2009, 2:23 pmAnd yet they scratch their heads when they have defectors….
Posted by Mike at The Big Stick | December 3, 2009, 2:24 pmMaybe the legislators experience time backwards, like T. H. White’s Merlin.
You never know.
Posted by lanfranc | December 3, 2009, 1:38 pmI couldn’t get into TH White… but give me Mary Stewart (or Tennyson!) any day.
Posted by ACG | December 3, 2009, 2:01 pmHasn’t the polygamist issue been beaten to death enough already? And if I forced you to divorce your wife, and lose all the rights that entails, I daresay you’d suffer as well.
Also we’ve been over this before — the lack of a current court strategy is attributable to the current makeup of the Court. Nothing will happen while the Court remains as it is (coughkennedycough). David Boies and that other guy are building up a case, and taking it through the courts now, and with a just & loving God/Court, they’d win, but they won’t. Until then, state-by-state is the only option. But the federal case is coming, as soon as there’s a Court honest enough to hear it.
Posted by ACG | December 3, 2009, 2:33 pmNo – because everytime you make an argument based on sexual attractin or emotional need, you are being hypocritical by leaving out others who want to get married for the exact same reason. You’ve failed over and over to reconcile the two. When you can give a legal reason why gay marriage is good and polygamy is bad, I’ll accept it. If the legal trappings of marriage are the goal, why not fight for equivelant civil unions, which would probably see greater support (maybe even frm that guy you all put in the WH).
So you would prefer gay marriage be mandated by the SC verses a state-by-state approach? Or is this really just about impatience?
Posted by Mike at The Big Stick | December 3, 2009, 2:41 pm” When you can give a legal reason why gay marriage is good and polygamy is bad, I’ll accept it.”
Mike, it’s actually rather trivial as a civil matter, in my opinion. A heterosexual COUPLE can be recognized as a CIVIL marriage under the law, a homosexual couple cannot. Polygamy doesn’t enter into it. Plus, polygamy is not a sexual orientation, it’s a choice – separate issue. Furthermore, religious groups are free to grant or deny consecration of marriage as they see fit (interestingly, they act as agents of the state for purposes of civil recognition of the marriage, just like a justice of the peace, while divorce is a civil matter). Here in heavily liberal Massachusetts, no churches have been told by the state who they can or can’t marry, and there has been no push toward polygamy.
Posted by James F | December 3, 2009, 3:44 pmSo the desire to have sex with multiple partners isn’t biological? I know a whole bunch of guys that would tell you differently.
Posted by Mike at The Big Stick | December 3, 2009, 4:07 pmThe equation you draw between sexual desire and marriage is either troubling, insulting, simplistic, or all of the above. But whatever it is, it’s not persuasive.
Posted by ACG | December 3, 2009, 4:36 pmIf it’s about love, mushy love – are you contending that polygamists don’t love each other?
I’m asking you to name one trait that leads to marriage that gays possess that polygamists don’t.
Posted by Mike at The Big Stick | December 3, 2009, 4:38 pmI’m not a big fan of the Kinsey scale, since – traditional fellow that I am – I think things are black and white for most people, but humans are heterosexual, homosexual, or in rarer cases some shade of bisexuality in between. There’s no polygamysexual.
Posted by James F | December 3, 2009, 5:57 pmThat’s not what you are saying – you are saying that humans are biologically monogamous. There’s no proof of that. Most polygamists are heterosexual.
Posted by Mike at The Big Stick | December 3, 2009, 6:03 pmI’m not arguing that point at all. I’m saying that civil law recognizes romantically committed couples as being married if they are heterosexual, but not homosexual (except in MA, CT, VT, IA, and soon NH). There’s the rub. Mono vs. poly doesn’t enter into it, legally. Plus, most PEOPLE are heterosexual, the LGBT folks are what I would call a biological minority – very easily oppressed by the majority.
Posted by James F | December 3, 2009, 6:10 pmAnd I am saying that if you distill it down to biology i.e. sexual attraction, then why discriminate against people who could argue that biologically they are atracted to multiple partners? If you want to talk about romantic commitment, again, aren’t polygamist couples romatically committed? If we want to talk about monogamy, polygamists are far less prone to cheating than gay men.
The only critera left is numbers. Those who argue that gay mariage should be legal but not polygamy can only make their argument on the grounds that 2 is the magic number. Do you disagree?
Posted by Mike at The Big Stick | December 3, 2009, 6:21 pmTwo is only a magic number because it’s what is in the law – most people can be recognized as a married couple by the but a minority can’t. A gay man can’t choose to marry a woman, and a gay woman can’t choose to marry a man, because of the way he or she is genetically wired. On the other hand, no one is biologically compelled to be part of a threesome, foursome, or what-have-you, there’s just no such orientation in psychiatry. What there IS is an unequal civil recognition of couples.
Believe me, I’m not an anything-goes kind of guy, and I do appreciate hashing out the implications carefully, but I can’t see how it doesn’t fall under equal protection under the law.
Posted by James F | December 3, 2009, 10:13 pmAlternate argument: it’s true that much of society is polyamorous. But the touchstone for heightened equal protection review isn’t just an “immutable” trait; the trait must also bear no real relationship to the class’s value, and break the class out as a “discrete and insular” minority.
Where the suggested trait is — as in the case of polygamy — general, the fact that all or almost all members of society fall into a class rebuts the charge of disparate treatment of a discrete and insular minority, and thus rebuts the charge of invidious discrimination. Bans on polygamy don’t disparately harm especially polyamorous individuals, because there’s no such thing as an especially polyamorous individual. Everyone is polyamorous. Polygamists just chose to act on it, against the better judgment of society.
Posted by ACG | December 3, 2009, 6:36 pmPolygamists just chose to act on it, against the better judgment of society.
I’m just going to focus on this line because most of the rest of your comment was in lawyer-speak and i don’t have the energy to read it 4 times.
This comment though, I wonder how many people said something EXACTLY the same about gay folks.
Posted by Mike at The Big Stick | December 3, 2009, 10:23 pmEh, I’m sure it wasn’t worth reading. Just don’t say I never gave you a legal argument.
Also, be ashamed of yourself.
http://www.observer.com/2009/politics/quinn-my-life-isnt-any-better-today
Posted by ACG | December 3, 2009, 11:15 pmWhy should I be ashamed? Because I don’t agree with you on gay marriage? I realize the newly minted liberal NYC lawyer looks down on folks me as hopelessly unelightened…and that is why you all keep failing. Because you aren’t able to get your big brains around contrary opinions…so it’s easier to link to sad, sad stories from gay couples and oh, how oppressed they are and what terrible people we are for not redefining marriage to make them happy.
There are thousands of polygamous families in this country that cannot marry because you’ve decided that more than two is an immoral number…but you’ve got the nerve to judge me because I am unsympathetic to same-sex couples. How shallow Ames.
Posted by Mike at The Big Stick | December 3, 2009, 11:46 pmI would feel compelled to answer, except I know you don’t believe a word of it.
Posted by ACG | December 4, 2009, 1:39 amYou’ve spent months and months dancing around the reason you refuse to support polygamous families who love each other, and also have a longer history in this country, and also have a religious justification…so I certainly don’t expect you to suddenly be forthright and state a real case as to why it shouldn’t be supported.
Posted by Mike at The Big Stick | December 4, 2009, 10:12 amGood lord.
Long comments from wingnut that I’m not going to read.
All I have to add is that you’re probably right, in suggesting that Democrats need to learn how to be inflammatory and piss people off. Don’t tell me it turns voters off, because being obnoxiously rude, dishonest assholes is all the GOP has done for the past 20 years. The difference is that if liberals do it, we won’t resort to lying.
Al Franken is good at twisting the knife, but what we really need is more Alan Graysons, people who are willing to break out of the Beltway Newspeak and call conservative legislators the insufferable, bigoted fools they are, without mincing words. We need more people who are willing to be mean. Again, the GOP does it constantly, yet they hit the fainting couch like the scared little SOB’s they actually are whenever the tables are turned on them.
So let’s turn the tables.
:)
Posted by Break the Terror (Evan) | December 3, 2009, 8:55 pmI’m with you Evan :)
Posted by ACG | December 4, 2009, 1:41 amMike, I’m fairly sure I’ve offered a number of legal distinctions between gay marriage and polygamy, which you’ve chosen to either ignore or hand-wave away (lawyerspeak!). If you won’t take my word for them, you might have to accept that no court of law would find counterarguments persuasive. In fact, WHEN gay marriage becomes legal, I’ll stake any sum of money you want that polygamy does NOT become similarly legal.
Further, when we talk about polygamy, the overwhelming evidence, apart from episodes of “Boston Legal,” is that we’re not talking about happy families. We’re talking about methods of oppression, control, and abuse, institutionalized with a religious gloss. So no, I won’t shed any tears over them.
Posted by ACG | December 4, 2009, 11:14 amI believe you said that homosexuality was a biological impulse, thus a ‘protected class’ but the desire for multiple partners is not. I’m still trying to figure out how biology is not at work there. Any criteria you can invent for gay marriage can be applied to polygamous relationships except for numerical.
Ahhhhh…the old, “Polygamist families are all abusive and oppressive.” Now we’re getting somewhere! Now let’s reconcile that with some facts about homosexual and hetero unions. Fact: Gay men are the most promiscious of the three types of marriage you advocate (man/woman, woman/woman, man/woman). Much moreso than polygamous families. Fact: The divorce rate among lower-class hetero couples remains high. Fact: Abuse happens in homes that span all demographics. I repeat, there are thousands of polygamous families already living in the US, most of whom do so in plain sight and with no interference from the law. 40,000 people in Utah alone. Isn’t there a legal term for the government recognizing a condition that already exists?
Posted by Mike at The Big Stick | December 4, 2009, 11:42 amI continue to be confused – what’s wrong with polygamy? Why is this the magic argument bullet?
Posted by John | December 7, 2009, 4:00 pmAsk Ames – I am just as curious as you are.
Posted by Mike at The Big Stick | December 7, 2009, 4:02 pmYes, but you’re being sarcastic. Here, I’ll step on the bear trap for you: “I’m fine with legalizing polygamy, whether that’s the only way to get gay marriage legalized or not.” (And I mean it, too, this isn’t just being fancy-pants arguer man.) Now, what horrible unintended whosie-whatsit did I just set off?
Posted by John | December 7, 2009, 4:14 pmThere’s no hidden trap here. It’s logical that a redefinition of marriage which would throw out gender as a criteria could lead to another revision that would throw out numbers as a critera. Ames doesn’t want to accept that possibility and uses the vague idea that the country wouldn’t allow it (nevermind the fact that if you talked to anyone about gay marriage even 20 years ago they would have probably said the same thing). According to him polygamous marriages are all oppressive, controlling and abusive relationships. I think there is plenty of evidence to the contrary.
Posted by Mike at The Big Stick | December 7, 2009, 4:26 pmOk, so you agree that polygamy should be legal, then? Is that the beef? Or is this a slippery slope (aka people are too dumb to ever make distinctions between apples and oranges since they’re both fruit) argument?
Posted by John | December 7, 2009, 4:44 pmI think polygamy is at worst equally harmful, so I’d call it a wash. But I refuse to support gay marriage proponents who will only revise the law to suit their needs and damn to everyone else.
Posted by Mike at The Big Stick | December 7, 2009, 4:46 pmOk, so you’re against the proponent in this discussion (ACG) and don’t actually hold up polygamy as being useful, inherently, to a discussion about gay marriage – in other words, except in deciding if you’ll take the person you’re discussing the issue of gay marriage with seriously. Do I have that right?
Posted by John | December 7, 2009, 5:15 pmNo. It’s useful in a couple of different ways: 1) It illustrates how liberals are driven in this debate solely by their emotions and haven’t thought it through to it’s likely conclusion. They think gay marriage will happen and nothing else will follow. I think this is incredibly short-sighted and use polygamy as one example of such.
It also points out the hypocrisy associated with the gay marriage movement which is that they deserve to get marriage but no one else who wants it and doesn’t currently have it.
Posted by Mike at The Big Stick | December 7, 2009, 5:21 pm(unindent)
Sorry, let me rephrase – setting aside sticking it to the other side, it doesn’t seem to be important. Like, let’s say the movie “The Invention of Lying” was actually “The Invention of Polygamy” and we’re in the first act, where nobody has thought up polygamy yet. Now what’s wrong with gay marriage?
Posted by John | December 7, 2009, 5:37 pmIn my mind, one doesn’t exist without the other as both are redefinitions away from the traditional form of marriage in this country. Furthermore, polygamy has more going for it IMO because it’s still biologically consistent and also has a historical and religious tradition.
Posted by Mike at The Big Stick | December 8, 2009, 9:19 amMike, those are some of the most profoundly stupid reasons to support something, ever. Rape is “biologically consistent” and has a “historical and religious tradition” too. Actually, so does homosexuality.
If you’re concerned about an actual slippery slope, that’s still silly, because you’re depending on people doing something that no-one wants to do. Slippery slopes posit a failure of willpower that never actually happens. If you’re concerned about intellectual honesty, that’s a discussion worth having.
Posted by ACG | December 8, 2009, 9:46 amWhen I say ‘biologically consistent’ I’m saying that Nature intended for men and women to procreate. And don’t you think that a long history of defacto legal polygamy in the United States carries weight on the possibility of legalization?
But that’s just it Ames – thousands of American DO want polygamy legalized. You say it will never happen because why? The majority of Americans don’t want it? That certainly isn’t stopping you from pursuing gay marriage.
Posted by Mike at The Big Stick | December 8, 2009, 11:08 amOn gay marriage, we’re almost at 40, and above 50 in many, many states. On polygamy, we’re…. not. Not by a long shot.
And “nature intended it” is meaningless. If you put on glasses this morning to help you see, I’m sure you’ll agree.
Posted by ACG | December 8, 2009, 11:10 amLet’s try a different approach here:
Canada is already reconsidering it’s anti-polygamy laws after the legalization of gay marriage.
http://www.lifesitenews.com/ldn/2009/jan/09010805.html
A 2006 study by the Canadian government suggested that legalization of polygamy would be the logical next step after acceptance of gay marriage.
http://www.lifesitenews.com/ldn/2006/jan/06011301.html
It’s happening Ames. US law doesn’t differ from Canadian law all that much.
Posted by Mike at The Big Stick | December 8, 2009, 11:18 amLifeSiteNews is not what I call a reliable source. They’re a diary of the culture wars, told from an extreme right-wing perspective, and this is no exception. First, the notion that “US law doesn’t differ from Canadian law all that much” is absurd. How would you know? Will you tell me what Canadian law looks like? And, the international comparisons, as you’ve pointed out, have limited applicability, even if we take LSN as true.
Posted by ACG | December 8, 2009, 11:29 amAll western governments are more alike than different. The same basic democratic structures apply. That’s also, of course why libby libs like yourself often point to Europe as a model for American social change on issues like healthcare and yes, gay marriage.
Canadian law is subject to challenge on the exact same ground as US law. Privacy as set our in Lawrence and religious freedom.
Posted by Mike at The Big Stick | December 8, 2009, 11:40 amMike, wow. There’s a world of difference between a presidential and a Westminster-model democracy, and while we have a lot in common, skipping from that to equivalence would be like saying an elephant is basically human, because they’re both chordates. Significant differences emerge especially at the legal level. Canada is a common law country. America’s Supreme Court is an explicit repudiation of that model, and a non-trivial distinction with real effect on how far and how fast courts are willing to go. Further, legal norms are the result of history, not the result of bare text. The shape of American law is the product of the American experience, and the Fourteenth Amendment shows that the best of all. I would expect Canada’s jurisprudence to be massively different, and unless you can prove otherwise, well…
Posted by ACG | December 8, 2009, 11:44 amSo the challenge grounds of privacy and religious freedom do not apply in the US? We don’t recognize those two things?
Posted by Mike at The Big Stick | December 8, 2009, 11:51 amActually, the privacy one doesn’t. Republicans fought tooth and nail against the notion of a “privacy” right, until Sarah Palin said she acknowledged it in one of her hilarious election year interviews. Griswold and its progeny sketch out the outlines of a privacy right but it’s never been explicitly acknowledged.
As to freedom of religion, I don’t know the state of the law in Canada, and neither do you, unless you’ve just researched it. But in America, a religious justification for an action can’t defeat an otherwise-valid law of general application. Religious freedom isn’t an absolute here, and as I’ve explained, the most-favored interpretations of equal protection law would foreclose polygamy.
Posted by ACG | December 8, 2009, 12:02 pmSo Lawrence doesn’t guarantee a right o privacy in the bedroom? Current law states that if a married man lives with and has sex with a woman other than his wife he is committing polygamy. Doesn’t Lawrence draw a veil of privacy across that relationship?
Any potential concerns arising from polygamous marriages can be addressed with other laws (child abuse, statutory rape, transportation of a minor, etc). Saw what general application of the law supercedes religious freedom for Mormons or Muslims?
Posted by Mike at The Big Stick | December 8, 2009, 12:08 pmLawrence explicitly disclaimed any influence on an “institution that the law protects.” We all know what that means: it was Kennedy’s attempt to answer Scalia’s “gay marriage is next” slippery slope argument. Read the opinion. Lawrence alone won’t get us to gay marriage, or anything (that you think is) beyond, either.
And the argument against polygamy, other than the fact that it’s never been divorced in the U.S. from real harms, is that it doesn’t have a distinct, “discrete and insular” biological component. The legislature can regulate biological urges that the population shares — tempers lead to murders, e.g. — without facing a burden higher than rational basis.
Posted by ACG | December 8, 2009, 12:20 pmBut AMes, you aren’t advocating gay marriage based on biology. You’re advocating it based on liberal morality. That is the criteria being used i.e. it’s unfair to deny gays marriage.
And again – if you’re talking about biology, i.e. sex…aren’t plural marriages based on a sexual desire between the partners?
Posted by Mike at The Big Stick | December 8, 2009, 12:24 pmWho says I’m advocating based on “liberal morality”?
And no-one cares what the partners want. The root question is whether homosexuality is based on a blameless, discrete impulse intrinsic to the person’s very being. If so, the right to marriage follows, because the state can’t deny rights to deserving minorities based only on moral opprobrium.
I bolded where polygamists go wrong.
Posted by ACG | December 8, 2009, 12:28 pmC’mon Ames – we both know your support for gay marriage can be traced to liberal acceptance of the gay lifestyle through it’s celebration by Hollywood. Then gay rights were internalized as part of the liberal agenda and you, as a loyal soldier for the Left, are obligated to support said policy. You’re fondness for gay marriage is most certainly founded in liberal morality even if you have tried to justify it on after-the-fact legal grounds.
Unless your contention is that gays and non-polygamous hetero couples possess some sort of genetic impulse towards monogamy then there are no traits biologically intrinsic to gays that polygamists do not also posssess.
Posted by Mike at The Big Stick | December 8, 2009, 12:34 pmGruss Gott in Himmel. I give you a legal explanation; you say that it’s clearly emotional.
As to your last point, though, you kind of made my point. There’s no biological distinction between monogamy and polygamy. So they’re not a discrete and insular minority, and special legal protection as such is foreclosed.
Posted by ACG | December 8, 2009, 1:05 pmI say that your legal explaination is after-the-fact to your emotional support.
That is incorrect. What I am saying is that the exact same biological conditions exist in all three cases (homo, hetero and hetero/plural marriages)which is a biologically based sexual attraction for their partners. There’s no biological justification for having only two partners in the marriage unless, again, you contend that monogamy is a biological compulsion.
Posted by Mike at The Big Stick | December 8, 2009, 1:09 pmDoes it matter which comes first? I feel a sharp moral aversion to murder and genocide; I feel that it ought to be condemned; I find that that emotion falls neatly within the bounds of the law. Surely the first lawgivers felt the same way. Law is not mythical; as to its origin, “we see it and we make it.”
And you seem to be missing the point. The fact that there’s nothing real separating single- and multiple-partner marriages is what forecloses any heightened judicial review. Equal protection isn’t “anything goes,” and it isn’t “equity of the statute”; it’s a means of according higher protection to minorities who, without cause, are victimized by the majority.
Posted by ACG | December 8, 2009, 1:24 pmOf course it matters. Some laws come from an emotional place first, which means the legal regime associated with them is an attempt to legally justify emotional desires. I’m okay with that, but I think it’s important to draw that distinction, especially with a pivotal issue like redefining marriage.
Polygamists are most certainly a minority whom have been told they cannot practice their social/religious beliefs by the majority. Obviously you have demonstrated there is no biological basis for this discrimination so it then becomes a societal preference for monogamy. But if we use societal preference, then doesn’t gay marriage also lose in places where the public has spoken (30+ states)?
Posted by Mike at The Big Stick | December 8, 2009, 1:29 pmNo. The Constitution defeats the popular will when expressed by a lesser authority, because it explicitly circumscribes “societal preference” to those instances that do not inflict unjustified harm on a discrete and insular minority.
Inflicting justified harm on a discrete and insular minority is a different matter. We jail murderers, even when their acts stem from pathological causes.
Posted by ACG | December 8, 2009, 1:34 pmAnd I explicitly reject the idea that whether a law has an emotional basis matters even in the slightest. It might matter for your comfort with it, but whether I want a law to pass, or a case to succeed, has absolutely no legal relevance, and dilutes neither the urgency nor the veracity of the conclusion.
Posted by ACG | December 8, 2009, 1:35 pmI think it does matter when you draw an arbitrary line between two proposed redefinitions, accepting one and denying the other, based exclusively on non-legal reasons.
Posted by Mike at The Big Stick | December 8, 2009, 1:43 pmBut isn’t the harm inflicted on polygamists unjustified? You’ve never been able to provide a legally definable explanation of why mongamy is preferable. As I said, any misgivings you may have about the abusive nature of polygamy can be addressed with other laws already in place. Systematically banning an entire institution based seems like an overreach (I’m thinking Prohibition as a solution for alcoholism).
At the end of the day, doesn’t your lack of support for plural marriage mainly stem from it’s lack of support in pop culture, through which most liberal social policies flow? If Hollywood got on board with plural marriage the way they did with gay marriage I suspect your attitude would be quite different.
Posted by Mike at The Big Stick | December 8, 2009, 1:41 pmReally, Mike. Your argument is much stronger when you leave out all the trite conservative
bullshitbullet points, such as “Liberals think this and that” or “it’s all Hollywood’s fault”.
Posted by lanfranc | December 8, 2009, 1:47 pmI don’t blame Hollywood – but it’s obvious enough why liberals support gay marriage and not polygamy. Liberals certainly aren’t keen on monogamy in general and are willing to look the other way on the great risk posed by promiscious gay men. They accept the notion of bisexuality so I don’t even understand why they would oppose multiple partners. It can only be a lack of acceptance in pop culture, primarily stemming from the conservative Christian nature of the Mormon church.
Posted by Mike at The Big Stick | December 8, 2009, 1:50 pmYes, king’s to Lanfranc. The “isn’t this all emotion?” shit is a distraction when I give you a firm legal basis. When one has a legal basis and one doesn’t, that one also has an emotional basis is completely irrelevant unless you’re going to devolve into Jonah Goldberg. Which does seem to be occurring, even as we speak.
Posted by ACG | December 8, 2009, 1:50 pmI suggest emotion because you’ve yet to provide a legal justification for opposing polygamy – therefore it has to be something else.
Posted by Mike at The Big Stick | December 8, 2009, 1:51 pmIf you’re missing the legal justification, you’re not paying attention.
Posted by ACG | December 8, 2009, 1:56 pmI have – you just haven’t provided it.
Posted by Mike at The Big Stick | December 8, 2009, 1:59 pmI think y’all are more or less bypassing the important point here with all this talk about biology and sexuality and so on. From the point of view of the state, the most important function of marriage is, and has historically been to govern how property is handled in a family – who owns what, which rights belong where, what happens in the case of death or divorce, and so on. The biological and moral issues are entirely secondary.
And as far as I can see, the greatest problem with polygamy would be exactly the question of division of property in the event of death or divorce. This is often a non-trivial matter even when there are only two partners involved, and would be much more so in a polygamous family. Should the estate be distributed equally among all the surviving spouses? Or should inheritance be dependent on individual time spent in the relationship? Can ‘earlier’ spouses inherit ‘later’ ones? And what about children – do they inherit equally from all parents, or only from their own biological parents? And so forth.
There are so many legal tangleholds involved here that this in itself would seem to argue against the direct connection from same-sex marriage to polygamy.
Posted by lanfranc | December 8, 2009, 2:08 pmI think i’ve made this point here before:
My father’s estate was distributed equally among myself and my siblings with no problems.
My grandfather’s estate was distributed unequally among three children, 5 grandchildren and 2 great-grandchildren with no problems.
Inheritance law can handle three wives with no problems.
Posted by Mike at The Big Stick | December 8, 2009, 2:12 pmOne of SEVERAL TIMES I’ve mentioned it in this discussion…
http://acandidworld.com/2009/12/03/profiles-in-failed-democratic-leadership/#comment-16441
Posted by ACG | December 8, 2009, 2:28 pmWhen you lay out an intrinsic trait that is unique to hetero and gay marriages only, you will have made your case. So far you haven’t done that.
Posted by Mike at The Big Stick | December 8, 2009, 2:32 pmYou’re making my brain hurt. Not from thinking, but from anger, and fatigue.
The problem isn’t that there’s no distinction between gays and polygamists. Equal protection jurisprudence doesn’t look for a reason to expand; it looks for a reason NOT to expand. That’s why even if the slippery slope is real at an intellectual level, it remains fanciful in the real world. And it’s also what I mean when I say we’re not dealing with an “equity of the statute” common law scenario.
Gay couples will only win marriage by proving that they (1) have a mostly-immutable trait that makes them “different,” (2) that that trait is distinct to their population, and (3) that it’s not a proxy for actually bad traits, about which the state should worry. This would trigger “strict scrutiny,” and strike down most laws making distinctions on the basis of sexual orientation, ba-bam.
Polygamous couples would face the same test, and fail hardcore at #2. Done.
Posted by ACG | December 8, 2009, 5:03 pmSure, gays have an ‘immutable trait’. But don’t hetero couples have an immutable trait as well?
Posted by Mike at The Big Stick | December 8, 2009, 10:57 pmYes…..
And?
Posted by ACG | December 8, 2009, 11:47 pmSo then don’t polygamists also have an immutable trait?
Posted by Mike at The Big Stick | December 9, 2009, 8:45 amI imagine they do — as either hetero- or homosexuals.
Posted by ACG | December 9, 2009, 11:14 amSo there you go.
In all three cases Ames we have potential marriage participants who have a sexual attraction to each other (that IS what we’re talking about biology). Since you don’t contend that monogamy is a biological compulsion, then we know that the decision to only marry one person is a choice not something they are born with. The decision to marry two people is also a choice.
What I assume you will argue is that society has already decided on two being the magic number and gay marriage proponents are simply asking for that to include homosexuals because they have no control over their attraction to the same sex, but they’re still willing to live inside the confines of monogamy. Fair enough, but what about a brother and sister? They have the same biological compulsion AND they are willing to live inside the confines of monogamy. What is the reason we don’t accept them?
What I’m trying to get at is that even if there are immutable traits involved, that isn’t the final word. Ultimately this is all about resetting social norms. You can argue biology until the cows come home but we both know there’s more to it than that. So in a social context, how do you make a case against polygamy?
Posted by Mike at The Big Stick | December 9, 2009, 11:27 am“What I’m trying to get at is that even if there are immutable traits involved, that isn’t the final word.”
Actually, it is. The foundation of equal protection law is the idea that minorities with immutable, unharmful traits ought to be broken out from the rest of the population, and protected from the caprices of the majority. In the absence of that, the legislature has almost a free hand to regulate. So the “one partner or two” question is one that faces only rational basis review — which means any argument I can make with a straight face, the Court will accord due deference.
Posted by ACG | December 9, 2009, 11:32 amSo then all have the immutable trait and it’s really just about social preference.
Then how do hope to get the SC to overturn gay marriage bans in over 30 states?
Posted by Mike at The Big Stick | December 9, 2009, 11:37 amEssentially correct — or as correct as you’re going to get. Gay and straight Americans both have a basic, immutable sexual instinct, and one that will be afforded legal protection in due course, because, I quote:
Gay couples will only win marriage by proving that they (1) have a mostly-immutable trait that makes them “different,” (2) that that trait is distinct to their population, and (3) that it’s not a proxy for actually bad traits, about which the state should worry. This would trigger “strict scrutiny,” and strike down most laws making distinctions on the basis of sexual orientation, ba-bam.
On the other hand, number preferences aren’t immutable traits, society has a free hand, and it’s up to the political process.
Posted by ACG | December 9, 2009, 11:42 amSo again, if it’s up to the political process, how does the SC overturn gay marriage bans?
Posted by Mike at The Big Stick | December 9, 2009, 12:05 pmAlso – based on the immutable trait argument, how do you keep brothers from marrying sisters?
Posted by Mike at The Big Stick | December 9, 2009, 12:07 pmFacepalm.
Polygamy laws will be up to the political process. You won’t see a court second-guessing political judgments, ever.
Gay marriage, on the other hand, falls within the court’s area of interest, because it presents a serious equal protection problem. As noted in ¶¶ 1-2. And in several comments above that one.
Posted by ACG | December 9, 2009, 12:08 pmThen incest is obviously an equal protection issue as well, correct?
Posted by Mike at The Big Stick | December 9, 2009, 12:10 pmAnd the case for objective harm in incest cases is just easy.
One word: minibar.
Ahem. I mean “Hapsburgs.”
Posted by ACG | December 9, 2009, 12:10 pmAny potential harm in an incestual relationship can be easily averted. You know this.
Posted by Mike at The Big Stick | December 9, 2009, 12:11 pmBy… abortion?
Posted by ACG | December 9, 2009, 12:15 pmWell that’s one option…since abortion is a standard part of the family planning toolkit for liberals…but I was thinking more along the lines of voluntary sterilization.
Posted by Mike at The Big Stick | December 9, 2009, 12:25 pmYeah, that’s not gonna happen.
Posted by ACG | December 9, 2009, 3:12 pmWhy? Aren’t they just asking for equal treatment due to their immutable trait?
Posted by Mike at The Big Stick | December 9, 2009, 4:09 pmI’m afraid they bite rational basis too. So any old reason will do. There’s no suspect class of People Who Like Incest.
Posted by ACG | December 9, 2009, 4:37 pmThey are heterosexuals who want to marry one partner. Their immutable trait is heterosexuality. They seek monogamy just like gays. On what grounds do you stop them?
Posted by Mike at The Big Stick | December 9, 2009, 4:41 pmI gotta say, I think it’s disgusting that you’ll so quickly group homosexuality with incest.
Posted by ACG | December 9, 2009, 4:42 pmI’m taking morals out of the equation. Isn’t that what you’re asking the public to do by accepting gay marriage on equal protection grounds?
Posted by Mike at The Big Stick | December 9, 2009, 4:47 pmNo. That’s what you think we’re doing. We’re actually hewing to the command that the Court’s job is “to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992).
Posted by ACG | December 9, 2009, 4:51 pmIt’s EXACTLY what you are doing. If we can view legal institutions through moral lenses there is much more ground to oppose gay marriage. Gay marriage only gains traction when morality is taken off the table. Then you convienantly re-inject it in the case of polygamy, incest, etc.
Posted by Mike at The Big Stick | December 9, 2009, 4:59 pmWhose morality?
Posted by ACG | December 9, 2009, 5:02 pmThe MAJORITY of Americans who still oppose gay mariage.
Posted by Mike at The Big Stick | December 9, 2009, 8:07 pmAs to the undeserved wounding of insular minorities, the majority’s morality OUGHT to be off the table, and emphatically is. We are a nation of laws, not of men.
Posted by ACG | December 9, 2009, 8:10 pmSo then you admit that in order for gay marriage to move forward we must remove morality from the discussion?
Posted by Mike at The Big Stick | December 9, 2009, 8:22 pmHere we’re regulating a small, unprotected class of heterosexuals qua heterosexuals generally. That’s not how equal protection works.
Posted by ACG | December 9, 2009, 4:46 pmWhy are these heterosexuals unprotected? Why are these specific heterosexual relationships excluded? You can’t do so unless it’s on moral grounds.
Posted by Mike at The Big Stick | December 9, 2009, 4:48 pmNot true. We can withdraw heightened protection and let the legislature have its way. That’s not a moral decision. It’s a legal conclusion based on the fact that, as related to heterosexuals, incestuous couples have no independent traits that make them deserving of stricter scrutiny.
Posted by ACG | December 9, 2009, 4:51 pmSo let’s try to understand your position: Out of all the hetero and homosexual and bisexual relationships out there… the only ones that are immutable and deserving of special protection in the form of state-sanctioned marriage are monogamous marriages between 2 people who aren’t more closely related than 2nd cousins? There’s no loophole for anyone else?
C’mon Ames…that doesn’t pass the laugh test. There ARE other kinds of relationships out there but because liberals haven’t embraced them with the same vigor as they have gay relationships, you aren’t willing to support them. So you have to engage in what I can only describe as legal acrobatics to try and say one new type of relationship is protected by none of the others.
Posted by Mike at The Big Stick | December 9, 2009, 4:56 pmNo. It works like this. In relation to each other, homosexual and heterosexual groups possess independent immutable traits that don’t track with the classes merit. If history and law vests one with a right, it must similarly vest the other with a right, unless the right’s restriction is narrowly tailored to a vital public interest (which never happens).
So history vests straight couples with a right to “marry.” Whatever that means. The law then vests gay couples with the same right.
Now comes plaintiff X, claiming that because the right to marry has been altered, it should be altered again to redress an injury that s/he has faced. The law asks whether this person represents a case of a similar unique class, characterized by an immutable trait that does not track with individual merit. Neither “people who want to marry more than one person” nor “people who want to marry their sisters” comprise such a class. The former fails for lack of distinguishing traits not shared by the majority at large, and the latter fails because “loving someone” is not a class trait.* Accordingly, the legislature has an almost free hand to regulate the marriages qua those groups. It does so, and our plaintiff X fails.
I starred the note that “loving someone” is not a class trait because it flags the entry of a separate question. That question is, does the right to marry imply the right to marry anyone? That’s a due process question, and the Court has never so held.
Posted by ACG | December 9, 2009, 5:13 pmThat sounds reasonable enough. Could you elaborate on what the “lack of distinguishing traits not shared by the majority at large” and the “not a class trait” parts mean, though?
Posted by lanfranc | December 9, 2009, 8:20 pmIf you have a gay couple who possess the immutable trait of sexual attraction to one another, the only hurdle is the removal of the society-imposed requirement that they be of separate genders.
For the incestual couple who possess the immutable trait of sexual attraction to one another, the only hurdle is the removal of the society-imposed requirement that they be at least 2nd cousins.
For the polygamous family who possess the immutable trait of sexual attraction to one another, the only hurdle is the removal of the society-imposed requirement that there only be two partners.
In each case we start with a biological attraction to one’s partner, but then move on to a barrier erected by society. I can conceive of you saying that the third case is a choice to be in a plural relationship, but in the first and second examples gender and blood-relation are something they have no control over. I don’t see how you can draw a distinction between the two unless you are using arbitrary criteria.
Now if you want to be honest and admit that in both the first two examples the barriers are erected by society and you are simply asking for one to be removed while the other left in place, then fine, but I don’t see that happening.
Posted by Mike at The Big Stick | December 9, 2009, 8:20 pm“The immutable trait of sexual attraction to one another…”
You’re either making the due process argument, which I told you has no real basis, or you’re confusing groups with individuals.
And Lanfranc, sure! In a sec :)
Posted by ACG | December 9, 2009, 8:37 pmJesus Christ Ames – what is the immutable trait of these relationships? Isn’t it their biological attraction to their partner?
Posted by Mike at The Big Stick | December 9, 2009, 8:51 pm