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The Legal Battle For Same-Sex Marriage Is Headed To The Supreme Court

Same Sex Marriage Supreme Court

Unsurprisingly,  the State of Utah announced that it intends to appeal the recent decision by the 10th Circuit Court of Appeals striking down the state’s ban on same-sex marriage to the U.S. Supreme Court:

The Utah Attorney General’s Office announced Wednesday that it will appeal the 10th Circuit Court’s decision last month upholding same-sex marriage to the U.S. Supreme Court.

The state will not seek a full-court review by all 12 judges of the 10th Circuit Court, according to a statement from the attorney general’s office.

“To obtain clarity and resolution from the highest court, the Utah Attorney General’s Office will not seek en banc review of the Kitchen v. Herbert Tenth Circuit decision, but will file a Petition for Writ of Certiorari to the United State Supreme Court in the coming weeks,” a news release said. “Attorney General Sean Reyes has a sworn duty to defend the laws of our state. Utah’s Constitutional Amendment 3 is presumed to be constitutional unless the highest court deems otherwise.”

On June 25, the 10th Circuit Court ruled that states outlawing same-sex marriage are in violation of the U.S. Constitution.

By upholding a Utah judge’s decision, a three-member panel of the 10th Circuit Court of Appeals in Denver became the first appeals court in the nation to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process.

What this means, of course, is that the Supreme Court will have a same-sex marriage case before it when it returns for the new term in October. As a preliminary matter, the Justices will need to determine if they will accept the appeal to begin with, something that can happen with the assent of at least four of the Justices. Theoretically, the Justices could chose to avoid the matter, at least as it is presented by this particular case. That has certainly happened before with other cases touching on different issues, most notably with a recent marked uptick in denials of appeal for cases involving Second Amendment issues. However, as I noted last week, whether it is this case or any of the others that are likely to make their way to the nation’s highest court before the end of the summer, it strikes me as unlikely that the Court will be able to avoid the issue completely. It is simply too much of a far reaching social and legal issue for that strategy to work. Additionally to the extent the members of either the conservative or liberal wing are looking for the “right” time for the Court to hear a case, this would seem to be that time. For conservatives especially, the way the legal tide is going would suggest that waiting any longer would make the odds of a decision upholding state laws banning same-sex marriage fairly unlikely.

Assuming the Court grants the appeal, we’d likely see the oral argument sometime early in 2015, possibly in March which seems to have become the month in which the Court schedules argument in what ends up being its “high profile” cases of the term, with a decision coming down by the end of next June. Between now and then, no doubt, there would be much discussion and analysis of the arguments made by both sides, along with prognostication about a potential outcome. Already, many legal experts are predicting that we will see same-sex marriage legalized nationwide within the next year. Based on how the legal arguments of the proponents and opponents of same-sex marriage bans have been treated by a wide range of judges since Windsor was handed down, I tend to agree that this is the most likely outcome. The ultimate question, really, is what side of this issue Justice Kennedy will come down on and, while he was careful to be circumspect in his opinion last year, there have been many signs over the years that he has been moving in this direction. It is Justice Kennedy, after all, who has been the author of the Court’s three most important gay rights decisions over the past twenty years. It started with Roemer v. Evans, a case in which a 6-3 Court struck down a state referendum that barred local jurisdictions from passing laws barring discrimination based on sexual orientation. Seven years later, in Lawrence v. Texas, Kennedy was at the front of a 5-4 decision that found laws criminalizing sodomy to be unconstitutional, over a blistering dissent from Justice Scalia. Then, last year, Kennedy wrote the opinion in United States v. Windsor that set in motion the chain of events that brings the Utah case to the court now. Given that record, it would be a little surprising to see Kennedy back track on the positions he’s taken over two decades, positions that have gradually evolved to the point they reached last year.  In the end, though, it will all come down to what the Court decides, and we won’t know that for about another eleven months.

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. argon says:

    Sadly, the court will likely rule with a 5-4 decision that should actually be 9-0.

    Society is well ahead of the ’4′ dissenters.

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  2. Vast Variety says:

    I find it increasingly funny with each of these rulings that comes down, NOM puts out a statement of denunciation calling them activist judges. I keep wondering how many of these rulings will it take before they are no longer “activist judges”.

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  3. @Vast Variety:

    “Judicial Activism”: A phrase used to describe any judicial opinion that the user of the phrase disagrees with.

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  4. Jim Henley says:

    I wonder if the Right will be able to mount a successful counterrevolution over the next few decades against same-sex marriage the way it has with abortion. I doubt it, but I suspect they will try.

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  5. Ron Beasley says:

    It will be interesting to see how the archdioceses of the Supreme court rules on this.

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  6. Another Mike says:

    Quoting from a recent article: http://www.crisismagazine.com/2014/rational-legal-basis-traditional-marriage

    “The surprise is that Kennedy argued that no legitimate purposes were served because the motive for the law was nothing but “animus” against same-sex couples, even though there were plausible reasons for DOMA cited in the opinion—namely, the desire to promote the stability of marriage in an age of moral uncertainty. As an experienced judge, Kennedy was surely aware that upholding the law did not require him or the court to agree with the law makers’ rationale (stabilizing marriage)—it only needed to affirm that some reason exists, almost any reason, which serves some legitimate state purpose. By denying even minimal rationality, the court thought it was making a strong point; but, as the dissenters pointed out, the court unwittingly was exposing its own ideological “animus” against proponents of traditional marriage.”

    I think this is correct. The supreme court likes same-sex marriage and dislikes those who are against same-sex marriage. It is no longer about the finer points of legal reasoning. Unless the court has an epiphany, the outcome is already predetermined.

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  7. C. Clavin says:

    Black’s Law Dictionary defines judicial activism not as…

    any judicial opinion that the user of the phrase disagrees with

    …but as a philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions…e.g. Alito’s Hobby Lobby opinion; a case decided on the basis of legislation and not constitutional principles, in which intentions and meanings not present in the legislation (or anywhere in the legislative record of the development of the legislation for that matter) were invented from whole cloth by the majority in order to satisfy the majorities personal ideology regarding catholicism, abortion, and the control of a woman’s reproductive systems by old Republican men.

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  8. C. Clavin says:

    @Doug Mataconis:
    “Judicial Activism”: A phrase to be mocked by partisans who are in ideological agreement with wrongly decided judicial opinions.

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  9. Matt Bernius says:

    @Another Mike:

    even though there were plausible reasons for DOMA cited in the opinion—namely, the desire to promote the stability of marriage in an age of moral uncertainty.

    Can you please explain how allowing same sex marriages *destabilizes* marriage? And links to non-theoretical evidence would be great here. Because as I believe Kennedy noted in his decision, no one has actually be able to demonstrate this claim.

    On its face, I find it extremely difficult to see how enabling more couples of legal age and capable of consent to marry in any way *destabilizes* marriage.

    Frankly, if these people were interested in *stabilizing* marriage, they should be working to repeal divorce laws.

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  10. Matt Bernius says:

    BTW from the conclusion of the article @Another Mike’s posted:

    The underlying cause of the dilemma is that most judges are in the grip of an ideological fever driven by the passion for absolute equality combined with post-modern relativism, leading them to think that marriage is merely a social construction, subject to redefinition based on personal desire.

    The problem with this argument is that it marriage is *a social construction* — in that it is a creation of society. It isn’t a purely religious creation. And that’s pretty easy to prove as marriage institutions have been created in non-JudeoChristian cultures across the world. And it exists in cultures that don’t have what could be classified by JudeoChristian standards as a religious system.

    And while there has historically been a religious component to *some* marriages within the western world, civil marriage has existed along side them for years.

    Plus, it’s worth noting that most of the people who advance this sort of argument typically have been against extending marriage benefits to *purely* secular civil partnerships because that too would weaken the institution of religious marriage.

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  11. KansasMom says:

    @Doug Mataconis: I gave pretty much that exact answer on an exam in a constitutional history course back in the day. Got an A on the exam and a “great point” in the margins.

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  12. Mikey says:

    @Matt Bernius: It is interesting to note that in some places–I am most familiar with Germany, but there are others–a marriage solemnized solely by clergy is not legitimate. An entirely civil ceremony is also required.

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  13. KansasMom says:

    @Another Mike: So wrong, but so right.

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  14. anjin-san says:

    @ Another Mike

    an age of moral uncertainty

    Define “moral uncertainty.” To me it sounds like “resisting when other people try to run your life.”

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  15. Another Mike says:

    @Matt Bernius:

    Can you please explain how allowing same sex marriages *destabilizes* marriage?

    I guess what you are asking for is statistics showing a marked decrease in male-female marriages after the institution of same-sex marriage. I don’t think such statistics exist yet for obvious reasons. They may exist in the future, but the argument could always be made that marriage was dying out anyway, so it may not be possible to determine the contribution, if any, made by same-sex marriage. Regardless of statistics, there will be no going back at this point.

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  16. Another Mike says:

    @Matt Bernius:

    The problem with this argument is that it marriage is *a social construction* — in that it is a creation of society. It isn’t a purely religious creation.

    Marriage is not a religious creation. I have never heard a reasoned argument that it is. Union of male and female, which we refer to as marriage, is a reflection of our biological nature. Society often created a ceremony for this union and gave it sanction, but it was merely sanctioning what already existed.

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  17. steve s says:

    @Matt: the idea that banning gay marriage is to in any way stabilize straight marriage is the argument of someone who’s dishonest and won’t just say “I don’t think gays should get married because ewww gross.”

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  18. anjin-san says:

    @ Another Mike

    Union of male and female, which we refer to as marriage

    That’s how you refer to it. Kindly do not presume to speak for me. I have friends who are in same sex marriages, I regard their marriages as every bit as legitimate and valid as mine.

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  19. Neil Hudelson says:

    @Another Mike:

    “The surprise is that Kennedy argued that no legitimate purposes were served because the motive for the law was nothing but “animus” against same-sex couples, even though there were plausible reasons for DOMA cited in the opinion—namely, the desire to promote the stability of marriage in an age of moral uncertainty. As an experienced judge, Kennedy was surely aware that upholding the law did not require him or the court to agree with the law makers’ rationale (stabilizing marriage)—it only needed to affirm that some reason exists, almost any reason, which serves some legitimate state purpose.

    (Emphasis mine, obv)

    This is such a mess of a statement. So Kennedy rules that the reasons set out for by DOMA were not plausible, and the response is “but what about this plausible reasons you just ruled were inplausible?”

    Furthermore, I love that you layout that there needs to be plausible, legitimate reasons–followed by “any reason will do.”

    Well, no. If the law needs to have plausible reasons for existing, and the court finds all the reasons laid out to be implausible, then “any reason” will not do. You can’t have it both ways.

    @Another Mike:

    Union of male and female, which we refer to as marriage, is a reflection of our biological nature.

    Nope. That’s fvcking, right there. A marriage is a long term social/religious and legal contract between two people to gain societal benefits, create a statement of love, and lay the groundwork for a family. What you describe is copulation.

    Or, to put it simply, you don’t need a marriage to satisfy your “biological nature.” Indeed, many (assholes) argue that the institution of marriage is against males’ biological urges to spread their seed far and wide.

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  20. Another Mike says:

    @Neil Hudelson: @Neil Hudelson:

    Nope. That’s fvcking, right there. A marriage is a long term social/religious and legal contract between two people to gain societal benefits, create a statement of love, and lay the groundwork for a family. What you describe is copulation.

    Don’t be obtuse. Union for life is seen in nature. It not entirely a matter of society. The benefit of marriage is to society or society would not have involved itself.

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  21. Matt Bernius says:

    @Another Mike:
    So you concede that there is *no fact based argument* that same-sex marriage destabilizes “traditional” marriage. Which pretty much obliterates the argument that courts need to seriously consider said argument.

    @Another Mike:

    Union of male and female, which we refer to as marriage, is a reflection of our biological nature. Society often created a ceremony for this union and gave it sanction, but it was merely sanctioning what already existed.

    Your so called biological rational is an understanding that is conditioned by *your culture* making it a social construction as well. Especially considering that cross sex marriages are legitimate forms of marriage in other cultures.

    Thus you’ve demonstrated the point that marriage is a *social* construct.

    Further, if it’s a reflection of our biological nature, which is supposed to be male/female, then you’ve obliterated the idea of simply restricting marriages to couples. In fact, the natural state of the world is polyamory. Monogamous relations are by far the exception — and are solely maintained based on successful breeding.

    Which again undermines your (and the writer of that article’s) entire point that there is something inherently biological to marriage.

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  22. Matt Bernius says:

    @Another Mike:

    Union for life is seen in nature. It not entirely a matter of society.

    Again, studies are showing that (a) its increasingly rare (as we are able to better track animals) and (b) it’s entirely based on breeding success.

    Peregrine Falcons “mate for life” — unless or until they have repeated unsuccessful clutches OR a stronger falcon chases off one of the mates. So if “marriage” is biological, then so too is “divorce.”

    And again, we run right smack into the entire question of should we allow marriages that are not successful in or interested in reproduction. After all, that form of biological pairing is inherently “unnatural.”

    This is all before we get to the fact that homosexuality is also “naturally” occurring as well.

    And that last gets us back to the “social” component of the marriage argument. Based on your cultural upbringing you are identifying certain biological functions as “normal” or “natural” and others apparently “un-natural” or “abnormal.”

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  23. anjin-san says:

    Union for life is seen in nature.

    So is homosexuality.

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  24. grumpy realist says:

    @Another Mike: So we’re supposed to keep existing homosexual people from loving, committed relationships with the full protection of their property rights under law simply because there “might” be a problem to heterosexual marriages down the road?

    Sorry, that doesn’t fly. That’s like arguing because people over in France can get fat from ice cream we’re going to ban everyone in the US from drinking milk.

    Also, if you’re that terrified about the stability of heterosexual marriages you’d better fire up the guns about companies not paying higher salaries and not providing better parental support programs. The link between financial difficulties and divorce is far higher than the link between the existence of SSM and heterosexual marriage stability.

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  25. Matt Bernius says:

    @grumpy realist:

    Also, if you’re that terrified about the stability of heterosexual marriages you’d better fire up the guns about companies not paying higher salaries and not providing better parental support programs. The link between financial difficulties and divorce is far higher than the link between the existence of SSM and heterosexual marriage stability.

    Also universal healthcare, as health issues also are a proven driver of divorce.

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  26. anjin-san says:

    the stability of heterosexual marriages

    This was never, ever about “the stability of heterosexual marriages.” It’s about one group of people trying to use the power of government to control and oppress a group they don’t like.

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  27. Another Mike says:

    @Matt Bernius:

    This is all before we get to the fact that homosexuality is also “naturally” occurring as well.

    Is it, or is it just a defect of some kind?

    Based on your cultural upbringing you are identifying certain biological functions as “normal” or “natural” and others apparently “un-natural” or “abnormal.”

    We might say that what 98 percent of humans do is normal, and what the other 2 percent do is abnormal, but it is beyond that. What the 2 percent do is disordered as it goes against the design of nature. It is a defect. It is not clear how the defect comes about.

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  28. Another Mike says:

    @grumpy realist:

    The link between financial difficulties and divorce is far higher than the link between the existence of SSM and heterosexual marriage stability.

    That’s probably true, but so what? Because financial problems are harmful to marriage, we need to throw same-sex marriage into the mix to confuse marriage even more?

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  29. beth says:

    @Another Mike: So what? Even if it is a defect, why penalize them for something they can’t change? Down’s Syndrome is a chromosonal defect yet we don’t say those who have it shouldn’t have rights.

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  30. Mikey says:

    @Another Mike:

    the design of nature

    Ain’t no such thing.

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  31. Matt Bernius says:

    @Another Mike:

    Is it, or is [homosexuality] just a defect of some kind?

    Here’s the thing — defect, as you are using it, is a human concept. Does homosexuality in any specific way prevent an individual within a species from surviving?

    Yes, one can argue that if an *entire* species was gay it wouldn’t reproduce. However that’s a slippery slope argument of epic proportions.

    We could also argue that homosexuality is one of a number of naturally occurring conditions to help control species population. Which would make it a critical and also *natural* component of species survival.

    Which again gets us back to you’re trying to claim “natural law” as a foundation for your argument, but we keep demonstrating how your notion of “natural law” is a fundamentally cultural/social construct and *not* natural. And that it relies on ignoring all the aspects of nature that do not support your so-called laws.

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  32. Matt Bernius says:

    @Another Mike:

    We might say that what 98 percent of humans do is normal, and what the other 2 percent do is abnormal, but it is beyond that. What the 2 percent do is disordered as it goes against the design of nature. It is a defect. It is not clear how the defect comes about.

    BTW, I hope you feel the same way about geniuses — because most likely, based on your criteria — genius is an abnormal defect. Especially considering that the rate of true genus is well below 2% of the population making it a far greater outlier than homosexuality.

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  33. C. Clavin says:

    @Another Mike:
    Well according to Kinsey, and others who have studied this, about 36% of males have achieved orgasm with another male…and about 13% for women with women.
    More importantly is the fact that sexual orientation is not so clear-cut as you portray it.
    So, once again, the facts just don’t support your ideology.
    Which begs the question…will you reconsider your ideology in the face of facts?
    Muhahahahhahaha…I crack myself up.

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  34. C. Clavin says:

    @Doug Mataconis:
    In 1999, a Texas jury imposed a $296 million verdict on a Koch pipeline unit — the largest compensatory damages judgment in a wrongful death case against a corporation in U.S. history. The jury found that the company’s negligence had led to a butane pipeline rupture that fueled an explosion that killed two teenagers.
    So why aren’t the Koch’s in jail for negligent homicide? Because their corporation protects them from personal responsibility. Does that change now? No. Corporations will be allowed to pick and choose when they are corporations and when they are individuals.
    Do you honestly think that’s proper?

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  35. Jim Henley says:

    @Another Mike:

    Is it, or is it just a defect of some kind?

    Yeah, see, this is the problem with interactive fora as opposed to essays. The author of the Crisis magazine essay can keep his mask on more easily. Because you chose to take part in a back and forth, yours inevitably slipped.

    We might say that what 98 percent of humans do is normal, and what the other 2 percent do is abnormal, but it is beyond that. What the 2 percent do is disordered as it goes against the design of nature. It is a defect. It is not clear how the defect comes about.

    I respect your right to have an opinion. But I don’t respect your opinion itself: it is based on nothing compelling. Nor need our laws respect it.

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  36. Vast Variety says:

    @Another Mike: Same-sex pairings are also seen in nature.

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  37. Another Mike says:

    @Jim Henley:

    I respect your right to have an opinion. But I don’t respect your opinion itself: it is based on nothing compelling. Nor need our laws respect it.

    Why thank you. I likewise respect your right to have an opinion, even though it is just based on a rationalization.

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  38. Another Mike says:

    @C. Clavin:

    Which begs the question…will you reconsider your ideology in the face of facts?
    Muhahahahhahaha…I crack myself up.

    Kinsey is not facts, and if you believe that, you ought to crack yourself up.

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  39. Another Mike says:

    @Matt Bernius:

    I hope you feel the same way about geniuses — because most likely, based on your criteria — genius is an abnormal defect.

    Different category, I would say. If 98 percent of people can high jump less that 4 feet and 2 percent can jump 6 feet or better, then all one can say is that they are above average by some degree..

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  40. Jim Henley says:

    @Another Mike:

    I likewise respect your right to have an opinion, even though it is just based on a rationalization.

    That word doesn’t mean what you think it means.

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  41. Another Mike says:

    @beth:

    So what? Even if it is a defect, why penalize them for something they can’t change? Down’s Syndrome is a chromosonal defect yet we don’t say those who have it shouldn’t have rights.

    I would like to think that they are limited only be their own lack of ability. Unlike Down’s Syndrome the homosexual defect is a mental defect or condition. They are capable of marrying a person of the opposite sex and performing the martial act, but something in their head will not allow them to do that.

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  42. Mikey says:

    @Another Mike:

    the homosexual defect is a mental defect or condition

    Now there’s some Grade-A bullshit, which has long since been discredited and discarded by those who actually diagnose and treat mental conditions.

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  43. Another Mike says:

    @Mikey:

    Now there’s some Grade-A bullshit, which has long since been discredited and discarded by those who actually diagnose and treat mental conditions.

    Not so. Read the story of how homosexuality as a disorder came to be dropped from the DSM. It had nothing to do with science. Read Making Gay Okay by Robert R. Reilly, Chapter 7, Sodomy and Science.

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  44. DrDaveT says:

    @Another Mike:

    I guess what you are asking for is statistics showing a marked decrease in male-female marriages after the institution of same-sex marriage.

    Why would you guess that? It assumes the (unsubstantiated) premise that male-female marriages are somehow superior in some tangible way.

    What would count as evidence is data showing that same-sex marriages are in general less stable, more abusive to spouses or children, or less able to raise healthy and well-adjusted children than mixed-sex marriages. It’s an awfully low bar, given how pathetic the performance of mixed-sex marriages has been, at least in the US.

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  45. Matt Bernius says:

    @Another Mike:

    Read the story of how homosexuality as a disorder came to be dropped from the DSM. It had nothing to do with science. Read Making Gay Okay by Robert R. Reilly, Chapter 7, Sodomy and Science.

    Right… Read an a polemic that uses chapter titles like “Sodomy and Science” to look for an unbiased account of the history of a complex issue involving homosexuals.

    You realize this is equivalent to telling someone to read “Mein Kampf” to learn the “real story” about the Jews. Spoiler alert – Hitler thought the Jews were destroying German institutions in the same way that Mr. Reilly believes that the Gays are destroying America.

    Pst… Mr Reilly, as someone who is clearly homophobic, is probably not the most *unbiased* source (he’s compared Gays to unrepentant murderers and argued that Gay Marriage steals sexual power and goods from heterosexual couples) for so called “facts.” Not to mention he’s being published by an Religious press, so not exactly the type of publisher who rigorously fact checked.

    The moment that you need to resort to hate literature to make your argument, you realize that you’ve lost. Or rather, you don’t, which makes it so much sadder.

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  46. C. Clavin says:

    @Another Mike:
    Well it’s been acknowledged as accurate by others.
    So back up your 2%.
    Oh…You can’t.
    So are you re-examining your position?
    Right…thats what I thought.

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  47. anjin-san says:

    @ Another Mike

    They are capable of marrying a person of the opposite sex and performing the martial act, but something in their head will not allow them to do that.

    Really? I know a gay man who was married for 20 years and has 3 biological kids. He did it because it was what was expected of him. It took him almost two decades to figure out why he was so unhappy despite being married to a fine woman.

    Really dude, you should just stop talking about this, you are only embarrassing yourself.

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  48. Mikey says:

    @Another Mike: @Matt Bernius pretty much said what I would have said.

    Just admit you have no non-religious justification for the denial of marriage equality and get it over with. Everything you’ve presented so far is lame pretext.

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  49. An Interested Party says:

    Is it, or is it just a defect of some kind?

    Actually, the true defect would be the societal and cultural influences that cause some people to be so homophobic…as a society, we don’t need to cater to your prejudice and fear….perhaps you should seek some counseling for your condition…

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  50. anjin-san says:

    @ Another Mike

    Robert H. Reilly? The guy who says that gays are worse than murderers?

    http://www.rightwingwatch.org/content/former-bush-administration-official-explains-how-gays-are-worse-murderers

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  51. Jim Henley says:

    Worth noting that if you reread Genesis it’s clear that the Men of Sodom were evil because they wanted to rape the Messengers. They weren’t asking Lot to invite his presumptively male guests to sexytime if they felt like it. They were demanding he render the guests to them so the locals could force their attentions on them.

    Lot’s offer to let them rape his virgin daughters instead was pretty skeevy, but the text gives no indication God would’ve been okay with the Men of Sodom raping Lot’s daughters. The God of Genesis is pretty down on rape.

    The whole “Sodomite” concept vouchsafed to us by traditionalists is one more example of social conservatives just not getting the centrality of consent to genuine sexual morality. Properly considered, “Sodomite” should mean someone who rapes their guests.

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  52. Another Mike says:

    @Matt Bernius:

    The moment that you need to resort to hate literature to make your argument, you realize that you’ve lost,

    I had never read or even heard of Reilly prior to getting this book. The book will stand or fall on what is in the book. The book appears reasoned and is documented. My position on gays though is virtually the same as the Catholic Church.

    The Church’s position is here: http://www.adoremus.org/Vatican-HomosexualUnions.html

    Reilly states, “I make no case from religion or revelation in this book, only from reason as it discloses to us the Nature of things.”

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  53. Matt Bernius says:

    @Another Mike:

    Reilly states, “I make no case from religion or revelation in this book, only from reason as it discloses to us the Nature of things.”

    Hitler made a similar claim about his unbiased documentation of all the problems the Jews were causing in Mien Kampf.

    Much of the book is based in the natural premisses which he referred to the “iron laws of nature.” These include survival of the fittest for the good of the species and his observations about lack of interspecies breeding.

    I believe lots of people also found that book to match their existing prejudices as well.

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  54. Another Mike says:

    @anjin-san:

    Robert H. Reilly? The guy who says that gays are worse than murderers?

    Except that he didn’t say that. Next time read the article first, then link.

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  55. Another Mike says:

    @C. Clavin:

    So back up your 2%.

    “The Williams Institute at UCLA School of Law, a gay and lesbian think tank, released a study in April 2011 estimating based on its research that just 1.7 percent of Americans between 18 and 44 identify as gay or lesbian, while another 1.8 percent — predominantly women — identify as bisexual. Far from underestimating the ranks of gay people because of homophobia, these figures included a substantial number of people who remained deeply closeted, such as a quarter of the bisexuals. A Centers for Disease Control and Prevention survey of women between 22 and 44 that questioned more than 13,500 respondents between 2006 and 2008 found very similar numbers: Only 1 percent of the women identified themselves as gay, while 4 percent identified as bisexual.”

    If I got the percentage wrong, then my mistake, but this is what I was trying to go by.

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  56. Mikey says:

    @Another Mike:

    Reilly states, “I make no case from religion or revelation in this book, only from reason as it discloses to us the Nature of things.”

    Reilly apparently thinks we’re too stupid to detect religious arguments masquerading as arguments from “reason.”

    He’s wrong.

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  57. Matt Bernius says:

    @C. Clavin:
    The most recent data puts the openly Gay population of the US at 3.5%-4% of the population. The specific amount is variable by state.

    Gallup working with the Williams Institute at UCLA produced this recent survey:
    http://www.gallup.com/poll/160517/lgbt-percentage-highest-lowest-north-dakota.aspx

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  58. David in KC says:

    I understand Another Mike’s concern, my 17 year relationship (and now married for 2 years) has destroyed countless heterosexual marriages. I mean, look at us, we have a stable and respectful relationship, support our parents, are good neighbors, pay taxes, buy stuff that helps keep the economy going, donate money and time to local charities. The carnage is obvious… Or not.

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  59. Another Mike says:

    @Matt Bernius:

    The most recent data puts the openly Gay population of the US at 3.5%-4% of the population.

    Thanks for the link. Nice to have the best available data. The question, “Do you, personally, identify as lesbian, gay, bisexual, or transgender?” might be expected to pick up people who do not openly profess to being gay. Maybe I missed something.

    One contention of mine is that in the future we might expect to see the percentage of gays increase. I mean increase more than can be accounted for by people coming out of the woodwork. My idea was rejected here in that the notion that a person can choose to be gay, is ridiculous.

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  60. grumpy realist says:

    Yeah, if your heterosexual marriage is so weak that it can be destroyed by a gay couple getting married five states over…..

    I still haven’t seen an anti-SSM argument which isn’t the equivalent of a bunch of boys putting up a sign on the clubhouse: “gurlz keep out”

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  61. grumpy realist says:

    @Another Mike: Well, when did you decide to be heterosexual?

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  62. Matt Bernius says:

    @Another Mike:

    One contention of mine is that in the future we might expect to see the percentage of gays increase.

    I think that is a pretty safe assumption in that making it more acceptable to be openly gay means that people who currently do not wish to identify as gay due to current social stigma will be more able to do so.

    I mean increase more than can be accounted for by people coming out of the woodwork.

    This isn’t exactly a quantifiable term. Perhaps you could actually attach a statistical range to what would be “normal” growth from existing people who are gay openly coming out versus the coming gay-pocolypes of conversions.

    My idea was rejected here in that the notion that a person can choose to be gay, is ridiculous.

    Because it is ridiculous. Its ridiculous because it mistakes actions for inherent sexual preference. Either you are attracted to members of your own sex or you are not. If you are, you are gay (or at least bisexual). What someone can choose — for better or worse* — is whether they will act upon that direction. But whether or not an individual is engaging in gay or straight sex has little bearing on whether or not they are gay or straight.

    *- By this I mean, there are cases of people who end up “living a lie” because they don’t feel they are able to be themselves. I personally know of at least one marriage where this was the case. Ironically, if the individual in question had felt he could have been “out” in the first place, the pair might not have ever have married and eventually divorced. Please help me understand how “trying to be straight and failing” helps stabilize the institution of marriage.

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  63. Jim Henley says:

    The Kinsey data and the other surveys are measuring different things. The Kinsey figures were for people who had had same-gender sexual encounters. The other surveys were people who identify as gay. These are two different things, and we know there are swaths of people who have engaged in same-gender sex who don’t consider themselves “gay.” This isn’t just about being closeted but includes people who believe they’re not gay because they do the penetrating, or because “oral doesn’t count,” or only did it for opportunistic reasons (boys school, prison, camping trip), or only did it once, or a few times, and anyway won’t do it again, or not often, and “really, I like girls, this is just a thing.”

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  64. C. Clavin says:

    @Matt Bernius:
    Which is nearly twice the 2% quoted…and hence my point:

    More importantly is the fact that sexual orientation is not so clear-cut as you portray it.

    If 4% are out of the closet and identifying as gay…and 36% have at least had an orgasm with the same sex…and who knows how many have simply fantasized about it but are held back by the stigma created by homophobes like Mike…then where is the number?
    A lot higher than 2%…which was used to make a point about it being abnormal.

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  65. Grewgills says:

    @C. Clavin:

    Well according to Kinsey, and others who have studied this, about 36% of males have achieved orgasm with another male…and about 13% for women with women.

    I am skeptical of the 36%. What does that number include? Does achieved orgasm with another male mean in the same room or does it have to be by contact (hand, mouth, whatever)? The 13% seems in line with what I have read elsewhere for both sexes.

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  66. Another Mike says:

    @Matt Bernius:

    Because it is ridiculous. Its ridiculous because it mistakes actions for inherent sexual preference. Either you are attracted to members of your own sex or you are not. If you are, you are gay (or at least bisexual). What someone can choose — for better or worse* — is whether they will act upon that direction. But whether or not an individual is engaging in gay or straight sex has little bearing on whether or not they are gay or straight.

    I get what you are saying, and it stands to reason, but is there any evidence that it is true?

    You also seems to be saying that there is low correlation between being gay or straight and engaging in gay or straight sex. That cries out for some data to back that up.

    Please help me understand how “trying to be straight and failing” helps stabilize the institution of marriage.

    I do not maintain that. My thought was that a person could be enticed to become gay through the classifying of gay marriage as a good equal to straight marriage, or due to propagandizing in the schools and elsewhere. You say that is not possible, because at most you would have a bunch of straight people acting gay. That is, they cannot really be gay even though they engage in homosexual sex.

    I hope I have stated your position correctly.

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  67. David in KC says:

    @Another Mike: pretty sure you don’t have his argument correct. You can’t turn someone gay, they are either attracted to the same sex or not. It’s not about the act of having sex with the same gender. Me being gay, married and a responsible member of my community in no way will make someone else gay, but my example might make it easier for someone to come to terms with their themselves if in fact they are gay. If one gay kid who is deathly afraid of his own feelings sees a gay person in a good stable relationship and living a good life, just maybe that kid doesn’t become another statistic in a suicide study.

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  68. Grewgills says:

    @Another Mike:

    My thought was that a person could be enticed to become gay

    Do you honestly believe that you could be enticed to become gay?

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  69. matt bernius says:

    @Another Mike:
    I started another rant and deleted it. While I doubt we will ever agree, it suddenly occurred to me that there is a single question that might help me understand the foundation of your beliefs.

    This isn’t a trick question and I’d really appreciate if you answered it:

    In your opinion, if you have a single consensual sexual encounter with someone of the same sex, does that make you gay?

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  70. Another Mike says:

    @matt bernius:

    In your opinion, if you have a single consensual sexual encounter with someone of the same sex, does that make you gay?

    Simple question, simple answer. No.

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  71. matt bernius says:

    @Another Mike:

    Simple question, simple answer. No.

    First: Thanks for the response.

    Second: Dammit… I thought I finally “got” your position. Because that would have made sense in light of this comment:

    My thought was that a person could be enticed to become gay through the classifying of gay marriage as a good equal to straight marriage, or due to propagandizing in the schools and elsewhere. You say that is not possible, because at most you would have a bunch of straight people acting gay. That is, they cannot really be gay even though they engage in homosexual sex.

    Without that belief, this comment becomes even more ridiculous. Your position doesn’t hold any internal logic. Here’s why:

    Do you, Mike, believe anything (propaganda, experimentation, money, etc) could ever make you gay? Or could — at any point of your life — have ever made you gay?

    I suspect the answer is no. And if that’s the case, you should ask yourself “what makes you so special that you could resist where you are so sure others will fail?”

    I could see that argument (and might even agree) that making “gay OK” could lead to more experimentation. And if you felt that any experimentation made someone gay, then your argument makes sense.

    But the thing is, if experimentation wouldn’t have changed your sexual preference, why in god’s name do you think it will change other people’s sexual preference?

    What are you some sort of straight superman?

    Isn’t it far more likely that if someone experiments, and decides that they like it, that they were gay or bi- in the first place?

    Or do you just want to come out and finally say that they’re brain damaged and mentally ill and that’s why they would be “converted.”

    Because, I guess that would make a sort of sense. Since you clearly think that being gay is a mental illness.

    But ultimately, that position undercuts your argument, because again, it boils down to the entire idea that they were gay (or as you would say “mentally ill”) first.

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  72. Another Mike says:

    @matt bernius: Matt, I am thinking mainly about school-age children who might be converted to homosexuality. There children are prepubescent and do not even know what sex is about. They keep getting messages that gay marriage is good and being gay is just a normal thing. That could confuse their still unformed minds that they can marry a man or marry a woman and it doesn’t really matter.

    If I am not mistaken, Reilly says in his book that possibly as high as 50 percent of kids who claim to be gay early in life can be or will change their orientation. This ties in with what you have been saying about one cannot choose to be gay. I am thinking that children can get the idea that there are two choices, and they get to make a choice. If they really cannot choose, then it makes sense that a high number will return to what they really are.

    I think it is well know that after some age it is almost impossible to successfully change a person’s sexual orientation. I wonder though at what age a child’s orientation is set. I have read that whatever it is, it happens at a very early age. My suspicion is that grade school may not be too late in some cases, and that is behind the big push to teach about it in school.

    I also gather from what you have said that many people who engage in gay sexual behavior are not homosexual at all, but are just in it for the sex, or for some other reason. In other words they are incapable of forming any relationship with a male that goes beyond sex.

    I have no real animus against homosexuals, other than I find them strange. I do not know any gays personally. I have never know any gays, but more than likely have interacted unknowingly with quite a few.

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  73. DrDaveT says:

    @Another Mike:

    I am thinking mainly about school-age children who might be converted to homosexuality.

    But see, here’s the problem with that.

    Before I was ever interested in sex, I didn’t even know that marriage had anything to do with sex. I didn’t know what sex was. I knew some dirty jokes, but I didn’t know why they were funny because I didn’t have any referent. Yeah, the internet has changed that — but not viscerally.

    When I started to get interested in sex, it wasn’t in the abstract — it was because I was turned on by girls. Suggestive pictures of naked (or, in those days, partially-clothed) women got me excited. Pictures of men did not. This was not a choice I made, or something that was susceptible to propaganda or influence or suggestion. Nothing anyone said or did, nor any kind of marriage or relationship I had seen, was going to cause me to be turned on by pictures of naked men.

    Now, here’s the leap of imagination for you: gay people are exactly the same as me, except it isn’t the opposite sex that turns them on. Got that?

    There are circumstances in which people will have sex with the gender that doesn’t really turn them on, for lack of a better alternative or for political reasons or out of desperation or just to be kind. These are the exceptions, and rare. There are also people who are genuinely turned on by a broader range of humanity than I am. Good for them; they are (in an odd way) less bigoted than I am. But the vast majority of people have sex with the people they are sexually attracted to — and whom they are attracted to is not influenced by argument or example or social convention. You can’t talk someone into being turned on by men, or by women, if they aren’t attracted to begin with.

    You say you have never known any gays personally. These days, I find that… astonishing. I know of at least a couple of gay classmates in high school, back in the ’70s, and a couple of gay classmates in college. I know now of more who eventually came out. I could probably count a dozen gay acquaintances or colleagues, and one brave transgendered person. Where do you live, if you don’t mind my asking?

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  74. anjin-san says:

    @ Another Mike

    I am thinking mainly about school-age children who might be converted to homosexuality.

    Do you actually believe this tripe? I don’t know about you, but when I was say, 13, the sight of a cute, fully clothed cheerleader sent me around the bend. A locker room full of naked guys did nothing for me at all. My eyes and my body told me what I liked and who I was.

    As an adult, I have had some fantastically good looking men flirt with me, or tell me straight up that they were ready to go if I was interested. Which I’m not, because I am straight. Again, my eyes and my body let me know what I like, there has never been any confusion.

    Gotta tell you Mike, when I hear a man going on and on about homesexuality like you are, I have to suspect latency. Maybe you should worry more about your sexual identity and less about other people’s.

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  75. Grewgills says:

    @Another Mike:
    I think one of your points of confusion is assuming that sexuality (as opposed to sex) is a dichotomy where on the one side you have heterosexuals and on the other homosexuals with little to nothing in between. The research I have seen and personal experience tell me something very different from that. Sexuality is a spectrum*, not a dichotomy, There are a lot of people in the middle of that spectrum. I am a 0-1 on that scale. My wife and several dear friends are 3-4. Other close friends are 5-6. People are attracted to who they are attracted to. Me teaching my child that it is ok to like or love who she wants won’t make her more or less likely to be gay (or bi) it will just make her more comfortable with her inborn sexuality.
    I would like you to stop and think for a moment about the other side of the issue you are concerned about. Accept for a moment that sexuality is inborn and physical attractions cannot be societally shifted other than at the margins. Now further imagine that you have two children, one of them firmly heterosexual by birth and the other firmly homosexual by birth. The homosexual is raised in a culture that says it is ok to be hetero or homosexual or bi and that marrying who you love regardless of sex is ok. Your homosexual child is raised in a culture that says the only acceptable sexuality is hetero and that homosexual acts and homosexual marriage are deviant, a defect, and should not be acted on. Which of those children has the most harm done to them?

    *I would say shades of gray but that phrase has been irretrievably ruined by tripe writing.

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  76. Grewgills says:

    @Grewgills: @Another Mike:
    Oops, that should have read

    I would like you to stop and think for a moment about the other side of the issue you are concerned about. Accept for a moment that sexuality is inborn and physical attractions cannot be societally shifted other than at the margins. Now further imagine that you have two children, one of them firmly heterosexual by birth and the other firmly homosexual by birth. The homosexual heterosexual is raised in a culture that says it is ok to be hetero or homosexual or bi and that marrying who you love regardless of sex is ok. Your homosexual child is raised in a culture that says the only acceptable sexuality is hetero and that homosexual acts and homosexual marriage are deviant, a defect, and should not be acted on. Which of those children has the most harm done to them?

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  77. Another Mike says:

    Gotta tell you Mike, when I hear a man going on and on about homesexuality like you are, I have to suspect latency. Maybe you should worry more about your sexual identity and less about other people’s.

    Homosexuality is a big issue in society at the moment. State governments are making laws pertaining to it, and the courts are heavily involved in it. We even have a thread here on the issue, a thread I did not start. Moreover, as much as I go on about the issue, there have been a good number of you who want to go with me.

    I do appreciate all the comments and respect everyone’s opinions. Your goal has been by and large to set me straight, to educate me.

    The main thing everyone wants to understand that gays are that way because that is just the way they are. One cannot be programmed into being gay, nor can one to talked out of being gay. I more or less accept that, but until science explains precisely how one comes to be gay, I am hedging by bets on how young children might be affected by education on gays.

    I am going to move on from this thread as the general feeling is that I am too obsessed with the issue. I will check back just in case there are any parting words of wisdom.

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  78. grumpy realist says:

    @Another Mike: As said before: when did you decide to be heterosexual?

    If you honestly believe that the only reason you ended up heterosexual is because you were exposed to heterosexual pairings and not to homosexual pairings, you probably are, indeed, bisexual.

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  79. David in KC says:

    @Another Mike: you’re wondering the effect it would have on children? Reducing the suicide rate of gay youth might be one if those effects.

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