Why Gay Marriage Can’t Be Left to States

Separate, it turns out, is not equal.

gay-marriage-cake

For sixteen years, since the passage of the Defense of Marriage Act, it has been federal policy that each of the 50 states and the District of Columbia can decide for themselves whether to recognize marriages between same-sex couples. It’s an unworkable compromise.

Jonnelle Marte, reporting for WSJ MarketWatch (“The gay-marriage tax penalty: Unable to file joint tax returns, gay couples face bigger bills, hassles“), offers just one illustration:

[G]ay couples cannot file jointly on their federal tax returns. This makes tax preparation more tedious for those living in states that recognize gay marriages. Same-sex couples may have to prepare as many as four tax returns in order to maximize their tax benefits, pros say. Each spouse needs to file his or her federal return as a single person. And couples who want to file married at the state level have to prepare a joint federal return — which never gets filed — in order to have all the information they need, experts say. “It’s a burden, and it takes extra costs,” says Alison Flores, an attorney and analyst with the Tax Institute at H&R Block.

Not being able to file jointly also means that many same-sex couples face larger tax bills than straight couples, says Kenneth Weissenberg, a partner at accounting firm EisnerAmper who estimates he and his husband Brian Sheerin paid an additional $5,000 in taxes last year because they couldn’t file as a married couple. Many married couples owe less in taxes when they file their returns jointly than they would as individuals, especially when one spouse earns more than the other, says Weissenberg.

Same-sex couples may likewise miss out on various credits and deductions that are only available to couples filing jointly, including exclusions offered to couples selling a home, child-related credits and other breaks. Being able to file as a married couple would have allowed Weissenberg to offset his portfolio gains with his husband’s losses, and to take larger business-related deductions, he says.

Indeed, unequal tax treatment is at the root of one of the cases the Supreme Court will hear at the end of March that could make same-sex marriage a constitutional right. Edith Windsor, an 83-year-old widow who was hit with a $363,000 federal estate tax bill when her wife died in 2009, is challenging the 1996 Defense of Marriage Act, which defines marriage as being between a man and a woman. Because same-sex marriages are not recognized by the federal government, gay couples cannot pass along an unlimited amount of assets to their spouses when they die, as straight married couples can. Instead, spouses inheriting more than $5.1 million would be subject to the estate tax. (The second case coming before the Supreme Court challenges California’s Proposition 8, a ballot initiative that prohibits same-sex marriage.)

And for some same-sex couples, the biggest tax hit happens in an area most married couples don’t yet associate with Uncle Sam: health benefits. While more employers are allowing same-sex spouses to be added to their employees’ health plans, the perk is often considered a taxable benefit under federal law, costing those couples an additional $1,069 a year in taxes, according to a 2007 report by the Center for American Progress, a progressive think tank based in Washington. Workers also normally can’t use pre-tax dollars to pay for a spouse’s coverage. Some companies try to offset those higher taxes by increasing pay for affected workers, but those employees are also subject to higher taxes on that compensation, says Moulton.

Aside from being grossly unfair, it’s simply stupid and inefficient.

In the national capitol region, people routinely work in DC and live in the near suburbs in Virginia and Maryland. But it’s not uncommon to live in the District and commute to a job in the suburbs. And people change jobs all the time, being domiciled in one of the three and working in another. Three years ago, same-sex marriage became legal in DC. Last November, Maryland followed suit. Virginia is unlikely to follow any time soon unless ordered to by the US Supreme Court.

So, naturally, a same-sex couple married in DC, Maryland, or one of eight other states that allow it would be unwise to move to Virginia. And taking a job in Virginia while commuting from either DC or Maryland would have to be evaluated closely from a tax standpoint.

If the Equal Protection aspect doesn’t trouble you, here’s something that should: Even one or both partners found a job in Virginia good enough that it easily offset the tax penalty, they should think hard about declining it, anyway. If they were, for example, to get into a serious accident on their commute and be taken to a Virginia hospital, their partner would quite probably not be able to visit on the same basis as a spouse. And, absent a power of attorney, they wouldn’t be able to make medical decisions. Indeed, it’s arguable that the couple ought to avoid even shopping in Virginia—or, for that matter, traveling to any of the 41 other states that don’t recognize their relationship—for the same reason.

FILED UNDER: *FEATURED, Gender Issues, Law and the Courts, US Politics,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. An Interested Party says:

    Aside from being grossly unfair, it’s simply stupid and inefficient.

    As is just about anything based on prejudice and bigotry…

  2. JKB says:

    Well, by all means, let’s get rid of federalism to avoid the stupid and inefficient. While doing gay marriage, we can also enact universal right to carry to avoid the stupid and inefficient gun laws in the various states. Forget paperwork, a person lawfully carrying in one state can be prosecuted if the road they are traveling on weaves across the border of another state.

    In any case, Virginia is coming along. I heard they just repealed the law against co-habitation of unmarried members of the opposite sex.

  3. Jenos Idanian #13 says:

    @JKB: You’re stretching a little there. Why not abolish all state regulation of marriage? Set a single national standard for consanguinity, age of consent, number of marriages — all the things the states currently regard as their jurisdiction.

  4. JKB says:

    They don’t regard it as their jurisdiction, it is the States’ jurisdiction. While I see no problem with those elements you mention, the fact remains, marriage is not an area granted to the federal government in the Constitution.

    The question we should be asking is why do we grant these benefits under the tax code to marriage and whether the desire to provide those benefits is exclusive to the promotion of male-female legal households.

  5. Argon says:

    Dude, Virginia was one of the states that almost passed the mandatory transvaginal ultrasound law. It has a governor with a degree from Pat Robertson U. and a Tea party retrograde for an Attorney General.

    Beautiful state but too bad about its current government…

  6. @JKB:

    What you forget is a little something called the 14th Amendment, and the Supreme Court’s decision in Loving v. Virginia.

  7. Tsar Nicholas says:

    Well, I for one said at the time that Clinton was being a dunce when he signed DOMA. You know what’s amazing? Back then I lived and worked in San Francisco and burned the candle at both ends. You would think DOMA would have been a hot topic in the Queen City, right? Nope. It wasn’t. An editorial or two. Not much else. No gnashing of teeth.

    In any case, isn’t the tax solution obvious? Repeal DOMA and amend the Income Tax Code to make filing status dependent upon local laws of marriages and civil unions. If Bob and Ted and Carol and Alice are married or in civil unions, locally, they all file jointly as spouses for federal income taxes and they get the exemption benefit for estate taxes. But why overturn 40 or so state laws, the vast majority of which were enacted by direct state constitutional voter referendums? Speaking of which, why is the left so hell bent on disenfranchising blacks and other demographics who keep voting for those referendums?

    Separately what’s surreal about this issue is that for many, many decades people have been gobsmacked by the hodgepodge of state domestic relations laws. Couple moves from New York to California and the husband dies in California. That will the guy drafted years ago, leaving everything to his children? Uh, no, that’s not happening anymore. Not even close. Not the way he had intended. Community property. Vice versa, too. Couple with only one breadwinner and a child moves from Arizona to Massachusetts, breadwinner dies, and leaves everything to his former mistress. In that case the couple went from a community property state to a forced will share state. Surviving spouse gets a token payment and then a third over time, rather than half of everything up front. C’est la vie.

    People dealt with it. We have 50 sovereign state governments. Sometimes by moving around people jumped out of the legal frying pan and into the fire. Shit happens. People accepted it. Not every problem under the sun can be solved by Uncle Fed and the Gang.

    Now that the liberal agenda regarding a micro demographic is being affected, however, things indeed have changed. Truly it must now be 24/7 high dudgeon mode, if not candlelight vigil mode. Go figure.

  8. mattb says:

    @JKB:

    we can also enact universal right to carry to avoid the stupid and inefficient gun laws in the various states.

    I don’t know if you are being sarcastic here or not, but I think this is something that the NRA should have been pushing for a long time ago. Moving to a single set of national gun laws is a great example of smart regulation that could eliminate many of the problems that you and other’s have decried (i.e. the patchwork of concealed carry laws and the inability for a registration in one state to carry into another state, thousands of stupid and inefficient gun laws, etc.).

  9. Ben Wolf says:

    Not to insult you Dr. Joyner, but that’s a very progressive stance to take on the issue, and I applaud you for it.

  10. Rick DeMent says:

    The problem is that the idea of States is, in itself, an antiquated construct of an era when commerce was almost 100% local. Now all transactions are closer to 100% interstate or global but we cling to the notion of sovereign states for reasons I simply can’t comprehend. They serve no purpose and unless they are rebalanced for population and region and they serve little political purpose other then to keep the GOP alive as a somewhat competitive party.

  11. C. Clavin says:

    JKB and Jenos seem to think they live in the time before the transcontinental railway…when states rights meant something.
    I would refer you both to the 14th amendment…passed about the same time as the Overland Route was being finished…an event which rendered state lines largly meaningless.
    You might also look up the Dunning Kruger effect.

  12. JKB says:

    @Doug Mataconis:

    Well, personally, I think we should revisit the entire idea of marriage. What we have today has been watered down to be near worthless outside of the tax and other monetary advantages.

    We really need DNA tests these days to avoid close relation marriages. Ann Althouse had a link to a story of a man and woman who met in college, she the daughter of two lesbians, he the son of a single lesbian, both the product of a sperm donor. After years of marriage and several kids, he searches out his donor father only to discover it is the same as the one his wife searched out years before. The man was writing for advice since he now saw his wife as his sister. Modern romance, so fraught with the gooiness of the modern melting pot.

    As such, the government should get out of the marriage business and instead establish the contractual basis under which the tax, inheritance, power of attorney, etc. between the parties enjoy the state’s beneficence. Marriage in the traditional sense would remain a religious practice that encompassed the civil contract and be defined and governed by the particular religion.

    With all the emphasis on the separation of church and state these days, why leave them intertwined in marriage?

  13. OzarkHillbilly says:

    @Tsar Nicholas:

    Back then I lived and worked in San Francisco and burned the candle at both ends.

    I had no idea.

  14. OzarkHillbilly says:

    @Rick DeMent:

    but we cling to the notion of sovereign states for reasons I simply can’t comprehend.

    Ummm… No. We settled the question of “sovereign states” once and for all back in 1865. The fact that some on the right want to re litigate it is indicative only of their desperation at the loss of a world that never really existed..

  15. JKB says:

    @Rick DeMent: the idea of States is, in itself, an antiquated construct

    Your problem is if you dissolve “idea of States” you dissolve the US Constitution and delegitimize the federal government. Unless you plan to impose its will by force instead of the consent of the people, then you’ve got a real problem. I suppose you could create a new constitution straight from the People, but good luck getting that ratified in a popular vote. Perhaps you could get the States to cede their power and self-dissolve?

  16. @mattb:

    “Moving to a single set of national gun laws is a great example of smart regulation”

    Great idea! Just don’t think the rural “guns a plenty” version will be the one implemented….

    @Jenos Idanian #13:

    “Why not abolish all state regulation of marriage?”

    I absolutely love it when I hear this, especially from partisan right-wingers who (presumably) had no problem with the GOP’s decades-long anti-gay agenda.

    Why not abolish state regulation? Because people want their marriages to be recognized by the state. It’s a total shocker (being sarcastic here) that gay people would have the same desire.

  17. C. Clavin says:

    @ JKB…

    “…Perhaps you could get the States to cede their power and self-dissolve?…”

    Look at the implementation of the PPACA…the States are already ceding their power to the Fed.

  18. PD Shaw says:

    This is just a silly argument; the marriage penalty will hurt far more than it would help from being _required_ to file jointly. This is an argument for tax relief for the “one percent,” those making very high incomes married to someone that most likely has no market income. Most likely they live in places like Washington D.C., New York City, or San Francisco.

  19. Mikey says:

    @JKB:

    With all the emphasis on the separation of church and state these days, why leave them intertwined in marriage?

    Some nations don’t. Germany, for example, does not recognize a marriage unless it is performed by the state. A couple can get married in church, but it is only ceremonial. So any couple wishing to get married in church will have two weddings–one at the Standesamt and one at the church.

    Since 1876, Germans in Germany can only enter into a legal marriage in a Standesamt. Therefore, every German marriage takes place before the local registrar (called Standesbeamter). A religious ceremony can be organised afterwards, but has no legal effect.

    Standesamt – Wikipedia

  20. Sejanus says:

    @Tsar Nicholas: I’ll copy something I asked you in another post and you hadn’t replied: If after Loving v. Virginia the people of Virginia would have held a referendum upholding anti-miscegenation laws, would you have supported their so called right to self determination?

  21. Scott says:

    The idea of federalism is getting weaker along with the idea of the states as indenpendent entities. Homogenizing of culture and economy are leaving the states less and less relevant. Which is why regulation of interstate commerce is a powerful tool of the federal government. As pointed out, even the regulation of marriage has implication that crosses the economy in its approach to taxation and benefits. Yes the federal government is going to get more powerful and involved. Rather that fight the trend, the arguments should revolve around how best to design it for the entire country.

  22. Barry says:

    @JKB: “They don’t regard it as their jurisdiction, it is the States’ jurisdiction. While I see no problem with those elements you mention, the fact remains, marriage is not an area granted to the federal government in the Constitution.”

    Full Faith and Credit?

    For marriage, that’s been enforced quite broadly for a third of a century, and has been in the Constitution for a century and a half.

  23. Barry says:

    @Tsar Nicholas: “Well, I for one said at the time that Clinton was being a dunce when he signed DOMA. You know what’s amazing? Back then I lived and worked in San Francisco and burned the candle at both ends. You would think DOMA would have been a hot topic in the Queen City, right? Nope. It wasn’t. An editorial or two. Not much else. No gnashing of teeth. ”

    There was an article about a feminist leader who started in protests in the 1970’s; she’d be one of the leaders of third-wave feminism. She mentioned that their list of demands has gaping exceptions about rape and domestic violence, because they couldn’t conceive of a world where (what we think of as normal) was normal. They didn’t even think that marital rape would be outlawed, or that rape would be treated like it is now, because their world was just so different.

    As you well know, back in the 1990’s, the idea of gay marriage was at most a SF concept, or something which might have happened decades from now.

  24. Barry says:

    @Tsar Nicholas: “People dealt with it. We have 50 sovereign state governments. Sometimes by moving around people jumped out of the legal frying pan and into the fire. Shit happens. People accepted it. Not every problem under the sun can be solved by Uncle Fed and the Gang.”

    G-D, but you’re a swine. BTW, you really might want to read your Constitution.

  25. JKB says:

    @C. Clavin:

    Oh, I will concede that we are on the whole a nation of whores. Willingly submitting to any number of indignities as long as they leave cash on the dresser. That, however, is not the same as ceding sovereignty. Sell it maybe but not cede it.

  26. @JKB:

    “Well, personally, I think we should revisit the entire idea of marriage.”

    Why? Because you guys lost this argument?

    People want to get married. And they want the state to recognize it. This isn’t difficult to understand.

    We really need DNA tests these days to avoid close relation marriages.

    No, we don’t. Close relation marriages is not a significant problem, and certainly not one that warrants pre-marriage DNA tests…..

    With all the emphasis on the separation of church and state these days, why leave them intertwined in marriage?

    Who? The church?

    Here’s some truth: Marriage is not just a religious sacrament. It’s a secular institution too!

  27. JKB says:

    Indeed, it’s arguable that the couple ought to avoid even shopping in Virginia—or, for that matter, traveling to any of the 41 other states that don’t recognize their relationship—for the same reason.

    The same could be argued for those who wish to enjoy their enumerated 2nd amendment rights. A resident of Virginia, with a Virginia carry permit, must still disarm and run the risk of death or injury at the hands of an assailant if they enter the District. What’s more, they cannot even transport their firearm in accordance with federal and District law without risk of arrest and prosecution. If an individual were to move into the District from one of the 49 states that now permit handgun possession and carry, under regulation, they must give up that right while domiciled within the nation’s capitol.

    So, if we are going to start federalizing things, let’s start a list.

  28. 11B40 says:

    Greetings:

    Once again, you fail to go a marriage too far enough. If only the Federal government would mandate compulsory homosexual experience for youth (especially male youth) between say 11 and 15 years of age, I’m like totally sure that homophobia would be rendered a thing of the past and everyone would be once again truly happy with big Obama-esque smiles on there faces after a while or two.

    Homophobia is the problem. Homosex, not so much. Try it. You’ll like it.

  29. JKB says:

    @James Pearce (Formerly Known as Herb): Why? Because you guys lost this argument?

    What are you going on about? We are already revisiting what constitutes marriage in contradiction to the long historical definition. But if we reconsider the whole institution, we may find the base reasoning does not preclude same-sex marriage. We may find a state interest in promoting contractually joined dual-adult households. Perhaps we decide it doesn’t have to be limited to two parties to the contract? What is the basis for these limitation and is the reasoning still valid?

  30. wr says:

    @JKB: Yes, let’s use every possible issue that comes up as an excuse to shovel more money at the gun manufacturers.

    Man, the NRA really has you working for them. And you don’t even get a kickback.

  31. Mikey says:

    @11B40: A gay sex experience isn’t necessary to get rid of homophobia.

    You just stop being a bigoted jerk, and it goes away all on its own. It’s amazing how that works.

  32. wr says:

    @Tsar Nicholas: “Well, I for one said at the time that Clinton was being a dunce when he signed DOMA

    No doubt you also said “sun rises in the east,” “Europe west with more crime,” “neon elephant” and “layers of irony.”

    Is it possible to have Tourette’s on the keyboard?

  33. @JKB:

    So, if we are going to start federalizing things, let’s start a list.

    If you wanna federalize these gun laws, then you better be prepared for them to be more draconian and for your taxes to go up to pay for more ATF enforcement.

    Let’s not get stupid here and think the enforcement of gun laws is the exact same thing as the recognition of marriages.

  34. JKB says:

    @wr:

    You’d understand better if you realized, unlike groups on the Left, the NRA is most of the time catching up with the vast multitude of gun owners rather than setting the agenda.

  35. G.A.Phiilips says:

    “Gay Marriage” is a oxymoron.

  36. @JKB:

    “Perhaps we decide it doesn’t have to be limited to two parties to the contract? What is the basis for these limitation and is the reasoning still valid?”

    No, no, no. We’re not going to get all esoteric about this. We’re not going to debate “historical definitions” or any other nonsense.

    Marriage is a legal arrangement. You need to explain why it should be restricted to straight couples but denied to gay couples. If you can’t, my advise would be to change positions on this one.

    Not adopt a more ridiculous one.

  37. G.A.Phiilips says:

    Marriage is a legal arrangement. You need to explain why it should be restricted to straight couples but denied to gay couples.

    “Gay Marriage” is a oxymoron.

    lol….your not going to get this are you?

  38. G.A.Phiilips says:

    Oh god, you’re@

    Lets try it this way…does unholy matrimony mean anything to you?

  39. I agree that straight married couples should not be able to file jointly. This liberty, granted by the government to married straight couples,but not to unmarried individuals, is unconstitutional. It violates section one of the 14th amendment. The answer is to abolish the favoritism by abolishing government recognition of marriage. Support equality for all, not expanded government favoritism for some.

  40. mantis says:

    @JKB:

    As such, the government should get out of the marriage business and instead establish the contractual basis under which the tax, inheritance, power of attorney, etc. between the parties enjoy the state’s beneficence. Marriage in the traditional sense would remain a religious practice that encompassed the civil contract and be defined and governed by the particular religion.

    What you are describing is what we already have. The only difference is the state calls those civil contracts “marriage.” All you are arguing is semantics.

  41. mantis says:

    @G.A.Phiilips:

    Lets try it this way…does unholy matrimony mean anything to you?

    Yeah. Buncha nonsense.

  42. SAH says:

    I believe same-sex couples should be able to receive marriage licenses.

    State-determination (I chose not to call it states rights) has been the only method, to date, that has allowed same-sex couples to receive marriage licenses. Leaving this to the Supreme Court is a toss of the coin for all 50 states.

    Finally, I’m not convinced the 14th amendment provides equal protection. It is true that all men can marry a women; all women can marry a man.

  43. SAH says:

    I meant to say I’m not convinced that the 14th amendment isn’t already providing equal protection, as all men, regardless of their sexual orientation, can marry women…

  44. G.A.Phiilips says:

    Yeah. Buncha nonsense.

    lol…words have meaning! But don’t worry the back door has been kicked wide open. I am sure you you will soon get what you want and a oxymoron will be the law of the land.

    We have some stupid ******* Judges on the SCOTUS…

  45. SAH says:

    “We have some stupid ******* Judges on the SCOTUS…” Then why is it good to leave this issue up for them to decide?

  46. swbarnes2 says:

    @SAH:

    I meant to say I’m not convinced that the 14th amendment isn’t already providing equal protection, as all men, regardless of their sexual orientation, can marry women…

    Sigh. This was sorted out 50 years ago, when the laws said that all white men could marry white women, and all black women could marry black men. Limiting everyone to a pool of acceptable spouses based on their race wasn’t fair then, and today’s penis count isn’t any fairer.

  47. SAH says:

    I don’t think race and sexual orientation are apples to apples.

  48. @G.A.Phiilips:

    “words have meaning!”

    Yeah, yeah, yeah……if that were the case, then we’d have at least a decade of “civil unions” in most states. Funny how changing the words still brings out the opposition. It’s almost as if the words just aren’t that important.

    What’s important is making sure those homos know their place….which is over there.

    Right?

  49. G.A.Phiilips says:

    Then why is it good to leave this issue up for them to decide?

    lol, was not my idea, ask the lawyers who seek only to twist reality into the crap they care about/get paid to care about these days.

  50. Septimius says:

    Really? Different states have different laws? Like how Florida has no state income tax, but neighboring Georgia and Alabama do. If you live in Florida, you better think twice about moving to Georgia or Alabama, or even getting a job there. How grossly unfair, stupid and inefficient is that?

    Better call the Supreme Court.

  51. matt bernius says:

    @SAH:

    State-determination (I chose not to call it states rights) has been the only method, to date, that has allowed same-sex couples to receive marriage licenses. Leaving this to the Supreme Court is a toss of the coin for all 50 states.

    Two points…

    1. While state-determination (to use your phase) has been the only method to allow same-sex marriage, it’s also the method that has explicitly banned such allowances as well. Recognizing it’s ability to grant rights does not negate the fact it’s also been used to block rights as well.

    2. The Supreme Court is not “a toss of the coin” — i.e. a 50/50 chance. The decision will be based on the composition of the court, the issue that they are ruling on, the arguments presented, and the scope of the decision. Granted, the specific possibility of one ruling or another can vary greatly from court to court. But the results are not random.

  52. G.A.Phiilips says:

    Yeah, yeah, yeah……if that were the case, then we’d have at least a decade of “civil unions” in most states. Funny how changing the words still brings out the opposition. It’s almost as if the words just aren’t that important.

    Right?

    You clowns have indoctrnated most of the country’s under 50’s into knowing so much bull**** as fact I don’t see why it took this long.

    And we both know why you change the meaning of words… or maybe you don’t.

  53. matt bernius says:

    @G.A.Phiilips:

    words have meaning

    Sigh… words don’t have “meaning” singular… they have meanings plural. And those meanings, like it or not, change. That’s the nature of language and culture.

    Language is living.

    And even in the case where the words are fixed — say religious texts — the fact is that the meaning of the words (the interpretation) changes over time. And while certain interpretations can be ruled out — based on the texts — the fact is, most religious texts, have multiple interpretations.

  54. SAH says:

    @matt b – I concede on your 2nd point. Regarding your first point regarding rights, are we talking about a “right to marry” or a “right to be treated equally”? If we’re talking about a “right to marry”, I think that’s an invented right, not a fundamental one. If we’re talking about a “right to be treated equally”, I’m not convinced that there isn’t already equal treatment.

  55. SAH says:

    Then again, it doesn’t matter what I think. I’m not a judge. I am, however, a citizen and a voter. My state allows for same-sex marriage, but if it didn’t but came up for referendum, I’d vote for it. I think it’s good policy, so long as institutions can choose one of three paths: only perform opposite-sex marriages, only perform same-sex only, or perform both types. Justices of the peace should be mandated to perform both types. Liberty is about choices, but I don’t think marriage is a right or that their is inequal treatment in same-sex only states. Be glad I’m not a judge.

  56. rudderpedals says:

    @SAH:

    If we’re talking about a “right to marry”, I think that’s an invented right, not a fundamental one.

    Not sure what an invented right is but Loving stands for the proposition that the right to marry is a fundamental right.

  57. An Interested Party says:

    I don’t think race and sexual orientation are apples to apples.

    Why not? In both cases, we’re dealing with something that is innate…

    Meanwhile, there doesn’t seem to be anything quite like homosexuality to drive some conservatives absolutely nuts…we have bright sparks like JKB and Jenos talking about ending state marriage entirely…they sound like petulant children who don’t like the way the game is being played and now want to take their toys and go home…and than we have a total homophobic douchebag like 11B40 who makes the common error of mixing up pedophilia and homosexuality…I wonder why this jackass lives in the San Francisco, of all places, as he seems to be quite terrified of gay people…

  58. @G.A.Phiilips:

    “You clowns have indoctrnated most of the country’s under 50′s into knowing so much bull**** as fact I don’t see why it took this long.”

    Ha! Indoctrinated?

    You guys are telling us about historical tradition and how marriage means “man+woman” and we’re the ones who are indoctrinated?

    You should look up what that word means, Mr. “Words Have Meaning.”

  59. SAH says:

    @rudderpedels invented as in it was invented by a human, versus a natural right. You are correct, “right to marry” has been used not only in Loving but I believe in other decisions dating back to the 1920s. I don’t agree that there is a fundamental right to marry. SCOTUS could go along with that line of thinking or they could go against it and be accused as “activists on the bench”. I would disagree with that assertion, and say the first case that declared there is a “right to marry” is where the activism exists.

  60. SAH says:

    @ An Interested Party: what does sexual orientation have to do with civil marriage? What does love have to do with civil marriage? People can wed legally if they are in love or are sexually attracted to one another, or, they can not.

  61. SAH says:

    I meant to say they can married even if they are not in love with one another – so I ask, to steal a line from Tina Turner, What does love have to do with it?

  62. G.A.Phiilips says:

    Sigh… words don’t have “meaning” singular… they have meanings plural. And those meanings, like it or not, change. That’s the nature of language and culture.

    Language is living.

    And even in the case where the words are fixed — say religious texts — the fact is that the meaning of the words (the interpretation) changes over time. And while certain interpretations can be ruled out — based on the texts — the fact is, most religious texts, have multiple interpretations.

    Gay Marriage is not a word, it is a term that has in it’s meaning, by way of the meanings of it’s words CONTRADICTORY no logic crap.

    Also known as a oxymoron…

  63. OzarkHillbilly says:

    @A’eron Blackman:

    Support equality for all, not expanded government favoritism for some.

    I love how asking to be treated the same as others presently are, is always viewed by those on the right as “asking for special treatment”. Stop it. Just stop exhibiting your stupidity in a public forum as it is way too painful for those of us who still know how to engage in critical thinking.

  64. Rafer Janders says:

    @SAH:

    invented as in it was invented by a human, versus a natural right.

    Um, EVERYTHING was invented by humans. All our beliefs, institutions, etc. are entirely the product of our own minds and imaginations. Even the very concept of “a natural right” was invented by humans — since, as will become apparent if you think about it, animals don’t seem to have any concept of natural rights.

  65. wr says:

    @JKB: “You’d understand better if you realized, unlike groups on the Left, the NRA is most of the time catching up with the vast multitude of gun owners rather than setting the agenda.”

    Actually, poll after poll shows that the vast multitude of gun owners favors the seinsible restrictions that the NRA — a fully funded tool of gun manufacturers and mass murderers — claims as fascism.

  66. matt bernius says:

    @SAH:

    If we’re talking about a “right to marry”, I think that’s an invented right, not a fundamental one. If we’re talking about a “right to be treated equally”, I’m not convinced that there isn’t already equal treatment.

    I get your perspective and I think we’ve probably hit a point that we won’t agree on based on personal ideology/philosophy.

    The key question is that of “rights.” I’m of the camp that all rights are invented. I suspect, based on your use of “fundamental”, that you take the opposite viewpoint.

    However, I do take issue with the second part of your statement: “If we’re talking about a “right to be treated equally”, I’m not convinced that there isn’t already equal treatment.” The issue that I take is that there are numerous examples of how, where same-sex marriages are not allowed, domestic partners do not receive equal treatment. Simply look at health care (in terms of insurance, access to records, or visitation rights) for examples.

    What are you basing your argument that there is already equal treatment on?

  67. OzarkHillbilly says:

    @James Pearce (Formerly Known as Herb):

    @G.A.Phiilips:

    “You clowns have indoctrnated most of the country’s under 50′s into knowing so much bull**** as fact I don’t see why it took this long.”

    Ha! Indoctrinated?

    GA goes to church and bible study on a regular basis. But he is the clear eyed judge of who is being indoctrinated, James. Can’t you see that?

  68. SAH says:

    @Rafer – you could indeed persuade me on the “no such thing as natural rights” line of thinking.

  69. wr says:

    @James Pearce (Formerly Known as Herb): “You should look up what that word means, Mr. “Words Have Meaning.””

    Hey, GA only said that words have meaning — he didn’t say he knew what the meanings were.

  70. matt bernius says:

    @SAH:

    invented as in it was invented by a human, versus a natural right

    Ok, so I was correct. This also means that we probably should just agree to disagree. While the idea of natural rights is a compelling one, it’s problematic (if you look cross culturally) and arguably problematic depending on what you define as “natural.”

    Ironically, invented rights are largely designed, I would argue, to necessarily curtail true “natural rights” for the good of society.

    I don’t think race and sexual orientation are apples to apples.

    What’s your rational for this argument?

  71. wr says:

    @G.A.Phiilips: “Gay Marriage is not a word,”

    Well, I’ve got to give you credit when you’re right, and this time you are indeed right. Gay Marriage is a not a word, as you have clearly spotted by the subtle clue of the space between the y and the m. Gay marriage is actually a phrase consisting of two words.

    Why this should have anything to do with its legality is beyond me. We do allow things that take many words to describe…

  72. matt bernius says:

    @SAH:

    @Rafer – you could indeed persuade me on the “no such thing as natural rights” line of thinking.

    First, kudos to you for this post (+1). You’re taking a difficult position, you’re going to have some invectives thrown at you, but if you’re really open to discussion, please stick with us…

    I think a lot hangs on definitions. So before we go to far, do you mind sharing what you mean by “natural?” I think that will go a long way to establishing some common footing.

  73. rudderpedals says:

    @SAH: I think you’re right about the 1920s decision. I remember something from that era holding the other way and allowing the state’s eugenics-based marriage ban too. Easy come easy go for man made law. What rights do you find in natural law? I think of natural law as what’s found in tribes of people or animals, red in tooth and claw.

  74. matt bernius says:

    @Rafer Janders:

    animals don’t seem to have any concept of natural rights.

    Slow down… that might not be exactly true.

    Two questions for you sir(?):
    1. What do you mean by “right?”
    2. Does one need to have a concept of “rights” in order to have “rights?”

  75. matt bernius says:

    @rudderpedals:

    What rights do you find in natural law? I think of natural law as what’s found in tribes of people or animals, red in tooth and claw.

    This is a particularly good question to think with. Though, I’d already argue that using a term like “natural law” is already problematic, as “laws” are already a construction.

    This ties back into the question of what constitutes a “right”?

    “Natural being” – as in a state of being — is probably a better phrase to use for this discussion.

  76. SAH says:

    @matt bernius: Men can marry women, regardless of their sexual orientation. That’s what I meant by equality. Individuals have equal options for marrying.

    Now, every loving couple is not treated equally. Married couples who are in love get different visitation privileges than non-married couples who are in love. That’s why I would vote to allow same-sex marriage.

  77. swbarnes2 says:

    @SAH:

    Men can marry women, regardless of their sexual orientation. That’s what I meant by equality. Individuals have equal options for marrying.

    And white men could marry white women, and black women could marry black men.

    Look, just forget about sexual orientation for a minute. What we have now is a government-enforced, rather sloppily applied penis check. If the government thinks you as a couple have two penises, they won’t give you the license. If they think you have zero, they won’t give you the license.

    So all you have to do is drop the penis check. Why do you think the government should be checking penises?

  78. SAH says:

    “natural” meaning no one has to grant me that right. Other people could find ways to interfer with my natural right, but no one has to grant it to me.. I think people have a right to fall in love with whomever the wish. I would consider that natural. But, do people have a right to a marriage license? I say, no, a marriage license is a tangible thing that is created by a third party.

  79. SAH says:

    @ swbarnes2 “Look, just forget about sexual orientation for a minute.”

    Okay. I’ve said in an earlier comment what does love or sexual orientation have to do with marriage?

    “So all you have to do is drop the penis check. Why do you think the government should be checking penises?”

    What do you mean by checking penises? Mine was never checked when I applied for a marriage license. I think my birth certificate was used to prove my gender. My penis was already checked for when I was born by a hospital which ultimately reported it to government.

  80. @JKB:

    Well, by all means, let’s get rid of federalism to avoid the stupid and inefficient.

    You are (without meaning to, of course) underscoring why extreme views of federalism are folly.

    Federalism rightly allows basic, daily governance by government closer to the citizens, but it ALSO allows for universal governance on many issues.

    Indeed, what you are arguing for is confederation, not federation. People who makes states rights claims need to understand what it is they are arguing in favor of.

  81. @JKB:

    Ann Althouse had a link to a story of a man and woman who met in college, she the daughter of two lesbians, he the son of a single lesbian, both the product of a sperm donor. After years of marriage and several kids, he searches out his donor father only to discover it is the same as the one his wife searched out years before. The man was writing for advice since he now saw his wife as his sister. Modern romance, so fraught with the gooiness of the modern melting pot

    Yes, that sounds like the kind of case that one needs to use as a template for a law.

  82. @OzarkHillbilly:

    GA goes to church and bible study on a regular basis.

    Then he should pay attention next time. The message is not really sinking in.

    @wr:

    “he didn’t say he knew what the meanings were.”

    That’s obvious. While he’s going blue in the face about gay marriage being an oxymoron, they call it “a fact of life” in several states with more to follow.

  83. swbarnes2 says:

    @SAH:

    What do you mean by checking penises?

    This isn’t that confusing. Right now, in most states, if the clerk looks at a couple, and believes there are two penises, they don’t issue the license. If they look at a couple, and decide there are not enough penises, they don’t issue the license. That’s the penis check. I’m arguing that they should not do that, you seem to be arguing that they should carry on. What’s the point? Why not just count persons, instead of penises?

    I’ve said in an earlier comment what does love or sexual orientation have to do with marriage?

    Congratulating yourself about how fair and generous it is of you to allow people to marry people they don’t love isn’t as effective a rhetorical technique as you seem to think it is.

  84. Al says:

    @SAH:

    But, do people have a right to a marriage license? I say, no, a marriage license is a tangible thing that is created by a third party.

    OK but you’re arguing against the established law of the land. Marriage is considered a basic civil right in the US.

  85. matt bernius says:

    @SAH:

    Men can marry women, regardless of their sexual orientation. That’s what I meant by equality. Individuals have equal options for marrying.

    Now, every loving couple is not treated equally. Married couples who are in love get different visitation privileges than non-married couples who are in love. That’s why I would vote to allow same-sex marriage.

    Let’s leave “loving” out of the equation…

    The reason some of us are suggesting that you’re trying to have “equality” both ways, is your reasoning above. The combination of your #1 and #2 create a fundamentally unequal situation.

    Given that you feel that #1 features no discrimination, it seems to me that — keeping your framework — the answer to #2 would not be to allow same sex marriage, but rather to extend marriage rights to unmarried couples.

    The fact that the situation needs to be remedied by allowing same sex marriage (and I’m glad to see we agree on that) suggests that #1 isn’t an equal situation in the first place.

  86. matt bernius says:

    @SAH:

    “natural” meaning no one has to grant me that right.

    Other people could find ways to interfer with my natural right, but no one has to grant it to me.. I think people have a right to fall in love with whomever the wish.

    Ok, I can see this, I guess. But what makes “falling in love” a right?

    And what does that mean, beyond that you can do it (and do it by nature)?

    And what, if anything else, are examples of “natural rights?”

  87. matt bernius says:

    @SAH:

    I think people have a right to fall in love with whomever the wish. I would consider that natural. But, do people have a right to a marriage license? I say, no, a marriage license is a tangible thing that is created by a third party.

    Here’s another reason why I find “love” problematic for this discussion. You keep bringing it up in relation to marriage. But based on your own reasoning, the two have nothing to do with each other.

    Or rather, at best, following your logic, we can say that while falling in love may be a natural right, there is nothing natural about marriage. Which means that it needs to be dealt with in the “social law” framework.

    If that’s that case, it cannot be considered by itself, and needs to be approached with an eye to all of the surrounding laws that create the “social law” framework. Hence why the question of discrimination cannot be removed from the equation, as, for the most part, social rights are not granted in a vacuum, and the granting of one right often has implications on other existing (and future) rights as well.

  88. SAH says:

    @matt bernius: No other human grants me the love I feel for someone, so that’s why I say it’s a natural right.

  89. SAH says:

    @matt bernius: You are right. There is indeed discrimination involved. A man can not marry a 10 year old girl. A women can not marry her brother. But, all people can marry a person of the opposite sex that is not their sibling and is at or above the age minimum. I don’t see a failure to provide equal protection here.

  90. SAH says:

    @matt bernius: “>Given that you feel that #1 features no discrimination, it seems to me that — keeping your framework — the answer to #2 would not be to allow same sex marriage, but rather to extend marriage rights to unmarried couples.” Except, “love” is very subjective. How can two people prove to a 3rd party that they love one another. Okay, I can probably convince someone after sitting down with them that I love my wife, but that’s not realistic for every clerk to have such conferences with every couple who aspires to marry.

  91. SAH says:

    @swbarnes2: I’m not arguing for any penis check. Furthermore, I think marriage licenses should be granted to same sex couples. What I’ve been arguing is

    a) I don’t think it’s a violation of the 14th amendment if the a state only gives licenses to opposite-sex couples

    b) I don’t think there is a fundamental right to marry.

    Just my opinion. I’m not a judge who is going to be ruling on this.

  92. Al says:

    @SAH:

    So basically you’re saying you don’t agree with Loving v Virginia?

  93. SAH says:

    @Al: I agree with the outcome of Loving v Virginia.

  94. Rafer Janders says:

    @matt bernius:

    2. Does one need to have a concept of “rights” in order to have “rights?”

    To some degree, yes. In the state of nature animals do not have any rights to or against each other. The gazelle has no right not to be eaten by the lion, just as the lion does not have the right to have the gazelle give its life so the lion may not starve.

    This is getting sideways to the main discussion a bit, but the point I wanted to make was that the entire concept of “rights” is one that human beings have invented, and that did not exist before we conceived it.

    Now, that does not mean that we don’t have rights, natural or not. The fact that rights are invented does not make them not inherent to humans, since, after all, and as I said before, everything involving most of human society is invented by humans.

  95. Rafer Janders says:

    @SAH:

    No other human grants me the love I feel for someone, so that’s why I say it’s a natural right.

    But that has nothing to do with the concept of a right. No other human grants me the enjoyment I get out of looking at a rainbow, but that doesn’t mean I have a “right”, natural or otherwise, to enjoy rainbows.

  96. Al says:

    @SAH:

    You may think you do but you don’t. (b) in this post directly contradicts it. (a) is what’s going to be argued before the USSC at some point.

  97. PD Shaw says:

    @SAH:

    I agree with this:

    I don’t think it’s a violation of the 14th amendment if the a state only gives licenses to opposite-sex couples

    But that’s because “marriage” is a legal term that specifically meant a man and a woman under the Common law, the law at the time of the U.S. Constitution and at the time of the Fourteenth Amendment. People that think there is a fundamental right to marriage err in believing that right encompasses the additional right to define marriage any way they want to.

    I think the ship had sailed on the holding on Loving, though the case was clearly about the State’s effort to control procreation; it wasn’t directly about marriage.

  98. anjin-san says:

    But, do people have a right to a marriage license? I say, no, a marriage license is a tangible thing that is created by a third party.

    FIne. I don’t think conservatives should be allowed to marry anymore. They tend to be a bit dense, gullible, and self-centered, and these are not traits that society needs encourage. If we don’t allow them to have children in wedlock, perhaps they will die out.

    Since you have no right to a marriage license, you don’t really have a beef if you disagree.

  99. anjin-san says:

    @ Rafer Janders

    Actually, you did have the right to look at a rainbow not so long ago. It is one more freedom that Obama has taken away.

  100. matt bernius says:

    @SAH:

    Except, “love” is very subjective. How can two people prove to a 3rd party that they love one another. Okay, I can probably convince someone after sitting down with them that I love my wife, but that’s not realistic for every clerk to have such conferences with every couple who aspires to marry.

    Again, I ask… and forgive me if I missed your answer to this — what does love have to do with marriage?

  101. matt bernius says:

    @Rafer Janders:
    What you have yet to do — and I think it’s critical to this discussion — is define exactly what is meant by “right.”

    I know it seems pedantic, but skipping over that step opens up lots of problems.

    Likewise, @SAH, you’ve yet to really articulate what you mean by “right” other, than perhaps, a biological imperative (if we accept that “love” is to some degree a biological function).

  102. @PD Shaw:

    “But that’s because “marriage” is a legal term that specifically meant a man and a woman under the Common law, the law at the time of the U.S. Constitution and at the time of the Fourteenth Amendment.”

    You really think that’s going to hold up?

    I mean, I know it’s not going to hold up, the prop 8 supporters don’t think it will hold up, all the GOP state reps who spent the last ten years getting gay marriage bans passed in their states don’t think it will hold up. But you do?

    Well……good luck with that.

  103. matt bernius says:

    @PD Shaw:

    People that think there is a fundamental right to marriage err in believing that right encompasses the additional right to define marriage any way they want to.

    I think the ship had sailed on the holding on Loving, though the case was clearly about the State’s effort to control procreation; it wasn’t directly about marriage.

    However, the tool that the state used in Loving to control procreation was marriage.

    BTW, as you might tell, I’m trying to get us away from the framework of “fundamental rights” in this discussion as it muddies the waters.

    The question is not, what was the definition of Marriage at the founding or writing of the 14th Amendment or even 10 years ago — though all of that should be considered.

    The question is to what degree does the state (broadly defined) grant/deny its citizens a right to marry and how is the framework of that right structured by other legislation?

    I’m sure there is a better way to say that (especially in legal terms) but I believe the point still stands.

  104. SAH says:

    @matt bernius: That’s really my point. Just because two people love one another doesn’t mean they have a fundamental right to marry one another.

  105. SAH says:

    @PD Shaw: But at that time, did the US Government have a definition for marriage?

  106. SAH says:

    @Al: Well I respectfully disagree with your assessment.

  107. matt bernius says:

    @SAH:

    Just because two people love one another doesn’t mean they have a fundamental right to marry one another.

    Drop love from the equation. Again, it has nothing to do with this and I really don’t understand why you keep including it.

    There is no fundamental/natural right to marry. And I don’t think I have ever argued that there was.

    However, there is a *right* created by the *state* to marry. And that state created right is surrounded by other state created rights.

    And, again, note that when I say state here, I’m referring to all levels of a government.

    And, as Loving v. Virgina demonstrates, while states passed legislation that prevented inter-race marriages, the fact was that the state given right to marry AND state given right to equal treatment (among other factors), meant that anti-inter-race marriages laws were ILLEGAL.

    In the same way, we must ask ourselves, in the present context, if existing state laws that ban gay marriage, when taken in the totality of state law, are likewise illegal.

    So it doesn’t matter if there is a fundamental right, a natural right, love, or anything else. What matters is *social law* in the context of *social law.*

    BTW, this is also why while same-sex marriage may become legal, inter species marriage, marriage of more than two partners, and marriage to minors will not suddenly become legal. Because, in each of those cases there are additional laws on the books which structure the interpretation of the law as a whole.

  108. swbarnes2 says:

    @SAH:

    Just because two people love one another doesn’t mean they have a fundamental right to marry one another.

    And just because they have two penises shouldn’t mean they can’t either, but you to think that it’s fine for the government to condition marriage license on the penis count.

  109. An Interested Party says:

    what does sexual orientation have to do with civil marriage? What does love have to do with civil marriage? People can wed legally if they are in love or are sexually attracted to one another, or, they can not.

    I’m not quite sure why you directed that at me…you originally questioned the link between “race” and sexual orientation…as I told you, they are linked because they both are innate…

  110. @OzarkHillbilly:

    The problem with slavery wasn’t that all could not partake in the rights of slave ownership, it was that it treated some as second class citizens. Like slavery, government recognition of marriage should be abolished.

  111. SAH says:

    @swbarnes2: Actually, I am for marriage licenses to same-sex couples. Give the couple a license regardless of their number of cumulative penises.

  112. SAH says:

    @matt bernius: T

    Because, in each of those cases there are additional laws on the books which structure the interpretation of the law as a whole. – See more at: https://www.outsidethebeltway.com/why-gay-marriage-cant-be-left-to-states/?#comment-1713229

    Two humans want to marry each other, state says yes; two other humans want to marry each other, state says no. The criteria sets the parameters and shuts out some. Why are the laws preventing intrafamily marriage constitutional but state laws that prevent same-sex marriage in violation to the 14th amendment?

  113. @Al: I say the issuing of any marriage license is wrong. The government recognition and additional liberties the license affords violates section one of the 14th amendment because these additional liberties are not afforded to the unmarried individual. The government cannot deny the individual of any privilege, liberty, or equal protection. The privilege and liberty afforded married couples of filing jointly denies the unmarried individual that equal protection of tax law.

  114. Al says:

    @A’eron Blackman:

    I… I think I should be applauding your brilliant satire that works on multiple levels? Maybe?

  115. G.A.Phiilips says:

    GA goes to church and bible study on a regular basis.

    GA don’t go to church , Ga can read his own bible and study history…he can read the freaking dictionary too..Ga thinks the goverment should be removed from the marriage game all together, and that people should be able to make their own mind up on who to leave their money to, all of it. Who they want to spend thier life with and who they can see in the hospital.

    GA also understands what marriage is!!! And what “gay marriage” is all about. So keep hateing me,and voteing down my logic and common sense, and my jokes.

  116. @G.A.Phiilips:

    and that people should be able to make their own mind up on who to leave their money to, all of it. Who they want to spend thier life with and who they can see in the hospital.

    And this is the fundamental problem: such things require LAWS. That is, it requires GOVERNMENT ACTION. The EASIEST WAY TO ACCOMPLISH THIS IS MARRIAGE EQUALITY.

    It is the SMALL GOVERNMENT solution because it requires THE LEAST AMOUNT OF LEGISLATION.

    And yes, caps intended.

  117. matt bernius says:

    @Steven L. Taylor:

    And yes, caps intended.

    I think you’re trying to tell us something… but I can’t quite figure out your meaning…

  118. @matt bernius: It is often hard to know, to be sure.

  119. matt bernius says:

    @SAH:

    Why are the laws preventing intrafamily marriage constitutional but state laws that prevent same-sex marriage in violation to the 14th amendment?

    Again, you are pretending that laws are passed in a vacuum.

    The issue is anti-discrimination/equality laws – in particular, if the state has passed laws stating that you cannot discriminate against individuals based on sexual orientation.

    Once that sort of law is in place — or an existing law begins to be routinely interpreted as providing those protections — that changes the nature of how other laws/rights, including marriage, must be interpreted.

  120. JKB says:

    @Steven L. Taylor: Federalism rightly allows basic, daily governance by government closer to the citizens, but it ALSO allows for universal governance on many issues.

    Oddly, some very good legal minds have submitted an amicus brief to the SCOTUS making a very lucid argument that marriage is not a matter for the federal government and belongs to the States. They happen to be arguing that section 3 of DOMA is unconstitutional but the argument is the same. The definition of marriage, outside of requirements for federal programs, belongs to the States. So it would seem that universal governance isn’t thought to be permitted on the issue of marriage.

    Instead, it is an unprecedented expansion of federal authority into a domain traditionally controlled by the states. The federal government claims a hitherto unknown and sweeping power to determine marital and family status.

  121. @JKB: All well and good, but isn’t an answer to my point.

  122. JKB says:

    @Steven L. Taylor: Then I’m not sure what your point was. I made the statement that we shouldn’t do away with federalism just to solve James’ concerns over same sex marriage. The link I provided demonstrates that others more learned also do not feel marriage is an issue for federal takeover.

    The Constitution does permit the federal government to impose universal governance on may issues that fall within its enumerated powers. It also, uses the power to control taxpayers dollars to induce states to behave as if there was universal federal governance in some areas. But that still doesn’t mean that the federal government can impose universal governance in areas not covered by those two means.

  123. Al says:

    Yes, let’s go ahead and upend fifty states worth of family law because gays are icky. That sounds like it’ll be really helpful.

  124. SAH says:

    @matt bernius:

    Again, you are pretending that laws are passed in a vacuum.

    The issue is anti-discrimination/equality laws – in particular, if the state has passed laws stating that you cannot discriminate against individuals based on sexual orientation.

    Once that sort of law is in place — or an existing law begins to be routinely interpreted as providing those protections — that changes the nature of how other laws/rights, including marriage, must be interpreted.

    – See more at: https://www.outsidethebeltway.com/why-gay-marriage-cant-be-left-to-states/#comments

    That makes sense. Can you give me an example, however, to complete the point. What anti-discrimination state law would be a valid example to show a state not applying the same consistency if it does not permit same-sex marriage?

  125. Al says:

    @SAH:

    A state that bans same sex marriage and civil unions (such as Michigan) and recognizes sexual orientation as a criteria for protection against discrimination (Michigan again) would discriminate against a same sex couple by not affording them the same rights (hospital visitation, spousal privilege and so on) as a married opposite sex couple.

  126. SAH says:

    @Al: Okay, but what does sexuality have to do with marriage?

  127. Al says:

    @SAH:

    I’m just going to skip ahead to the part where I say that argument didn’t work in 1967 either.

  128. matt bernius says:

    @SAH:

    Okay, but what does sexuality have to do with marriage?

    WTF?! Really?! I mean REALLY?!

    Sex is key here. Marriage — especially in states where anti-gay legislation has been passed — uses gender as being equivalent to sexuality. Yes. a gay man could be married to a gay woman — I’m sure it’s happened before. Surely one gay spouse could be married to a straight spouse. But the underlying idea of one man/one woman is to propegate marriage as a heterosexual institution.

    But regardless of the question of whether or not Michigan’s consition explicitly enshrines hetersexuality, the fact remains that you did not in the least bit address Al’s larger argument — namely that by not allowing Gay couples to marry (or form domestic partnerships), they are not able to access certain rights granted to heterosexual, married couples. And since marriage is the only way to gain those rights, you have a conflict with the discrimination laws that were past.

    Look, as I suggested early one, we need to agree to disagree. Because if you don’t understand the thread that Al just laid out, we can’t have this conversation. By that I mean, you are either looking at this from such a radically different perspective that we really don’t have enough common perspective to continue this conversation OR you are being intentionally obstinate.

  129. SAH says:

    @Al: Don’t lose patience with me yet. I’m seeing where you are coming from and I want to be convinced.

  130. SAH says:

    @matt bernius: So Pete and I want to access the same rights as Mary and Bill. Mary and Bill are granted those rights because they are able to get a marriage license. Pete and I can not, because my state bans same-sex marriage. Our state, however, does have other other laws applying to other situations where gender can’t be a basis for discrimination. Therefore,it is not equal protection of the law to have Pete and I get discriminated against for a marriage license but for other males to be protected from some other gender discrimination. A state must either protect against gender discrimination or not protect against gender discrimination. You can’t protect against it here and not protect against it there. Okay, I got it. I’m good. We can agree to agree now.

  131. matt bernius says:

    @SAH:

    Okay, I got it. I’m good. We can agree to agree now.

    Umm.. ok, glad to hear it.

    Though let me point out one thing about your previous post:

    gender can’t be a basis for discrimination

    The discrimination issue here isn’t *gender* it’s *sexuality.*

    Saying marriage can only be between one man and one woman isn’t intended to be a gender issue, it’s a sexuality issue.

    Hence the problem with banning gay marriage (again, sexuality issue), while awarding special rights to married couples (which becomes an denial of rights based on sexuality).

  132. SAH says:

    Noted. Cheers.