California Judge Reverses Prop 8: A Right To Marriage?

A judge in California has, as we have all heard, struck down the publicly created law which bans two-person, same-sex marriage. This was no surprise, as most expected that this contentious case would spend many days in court.

Marriage between male and female is found (or so we have read) in all cultures, both historical and modern. The tradition for this view of marriage is long and deep.

Polygamy, which is marriage between one (usually male) and many (usually females) is rarer; and in many or most of those cases, one of the females is usually seen as the “first” or “head” spouse. The tradition of this kind of marriage is shallow and variable.

Marriage between three or more mixed sexes—groupings variable in number and composition—is exceedingly rare, and barely, if ever, countenanced. There is no tradition at all for these experiments in living.

For a moment, consider only traditional, male-female marriage. Forget the talk of reproduction, religion, and so on. For it is important to understand what most have forgotten. Marriage is not a “contract” between a male and female. That is, it may be partly that—the couple usually pledge allegiance of some kind, such as forswearing all others; again, traditionally—but marriage is not predominately an inter-personal contract.

Instead, marriage is a “contract”, or rather agreement, between the couple and the culture in which the couple lives. It is the culture which confers the special status of “husband and wife.” Marriage, culture says, is different, legally, religiously, and morally, from, say, two (or more) people merely cohabitating.

Another way of stating this is to say that it is everybody but the couple that confers the right of marriage. After all, the couple looks to society and asks each member of that society to recognize the couple’s bond, a bond to which is attached certain privileges and responsibilities.

To emphasize: it is other people, not the couple, that confers the right (and duties) of marriage.

Californians created a law which said, in essence, “We recognize traditional marriage only.” We can now see that this is another way of saying that the majority of the voters (especially the large majorities of Black and Hispanic people) did not want to confer a newly created right.

The judge who canned the law argued that society is wrong and that society must confer the right, a brand new right the judge was lucky to discover. They must, that is, abandon tradition and create a new culture.

There are three points of interest here. The first is tradition itself. As already said, by any reading of history, tradition is on the side of two-person, male-female marriage.

Those outside of two-person, male-female sets who want conferred upon them the status of marriage paradoxically ask to be part of tradition. That is, they want the trappings of marriage: the ceremony, the rights and, although we rarely hear about these, the responsibilities. But they also want the tradition overthrown, or abandoned. There is no solution to this paradox.

The other point is the wisdom of the judge over the wisdom of society. Now, it is certainly possible that the judge, acting in a parental fashion, knows what it is best for all society. And not just in the legalistic sense. The judge could have, for instance, nullified the proposition because it was discovered somebody forgot to dot an i.

But this is not what happened. The judge instead claimed that the right of marriage for two same-sex persons was there all along, only hidden from view. Society must confer this new right, sayeth the judge.

Once more, it is logically possible that the judge is correct, and that society should be coerced into doing something it does not want to do. But wholesale changes of these kinds, where entire traditions are upset, are never painless and are always, at the least, tumultuous.

The third, and most fascinating point, is that the judge, in slaying tradition, only discovered a right for two same-sex persons. He did not (yet?) unearth a right for three, four, or more mixed-sex persons. Nor did he tell us that people and cats could be wed.

Pose these kinds of scenarios to supporters of the judge and they will scoff and consider such absurdities unworthy of answering. In not answering, these supported admit defeat, or at least admit that their arguments are not sound.

Some see this and say it is obvious that marriage is only between two people. But, of course, that argument can only rely on tradition, but only on the part of tradition that they find comforting to their desires.

Since our California judge made this decision, which has already being appealed, the only thing for certain is that the acrimony has just begun.

46 Comments

  1. Mike,

    I do. Yet another typo inserted by my enemies. They are everywhere!

    Mittens,

    I wish to say to you—and to everybody—that I have absolutely nothing against the number 8. I am no bigot. Eight is a perfectly fine integer. True, it’s not prime, nor is it a square. It is at least even, though somewhat difficult to write legibly.

    I do prefer 9 because it is a square, and I like 7 because of it’s primeness. But I can live and let live with 8.

  2. I also think this situation is a paradox.

    What the gay community is really after is to have society acknowledge their loving committed relationships as identical to a heterosexual loving committed relationship (both having gone through a ceremony).

    To me, they are not identical, just because of biology.

    What is wrong with having a different word than marriage to denote the different biology involved in the relationship.

    What bothers me about this decision is asking a court to order a redefinition of a word, rather than waiting for the words meaning to mutate and change over time (as words are wont to do).

  3. What this item misses, or glosses over, is a subtle point that marriage is a contract both between the parties being married and the State (meaning the state/local and/or Federal goverment) in which that contract is consumated — the State confers certain rights, priviledges & responsibilities on those with a marriage contract. In a free society those might be considered as reflective of society, but this is debatable. For example the “marriage tax” penalty is a whim of government action & is a unique responsibility conferred between those married & the government independent of all others.

    All of which goes to show that if this topic were addressed by the voters & judiciary in contract language rather than the emotionally-charged term, “Marraige,” things might have [may yet, perhaps] proceeded more objectively.

    But I doubt it…

  4. Actually, throughout human history, the more common form of marriage is the harem – one male, multiple females. Male-female couples are rather recent, in only the last few thousand years becoming popular.

    The idea that someone has a right to marriage is a new one as well. In the West, women were seen as property of men, as recently as a century ago. Women were not allowed to vote, own property, or represent themselves in court. They did not have the right to divorce, and they were used as a form of money in arranged marriages. This is still going on in many places in the world. It was the men who decided a woman’s fate, no matter what she wanted. Women were chattel, not persons, in the eyes of society and the law.

    The idea that a couple would marry for love is something new, when for most of the last hundred thousand years, the people you would marry would be the ones who were in your village for whom your parents and their parents would make an arrangement for your mating… and you wouldn’t get much of a say. Now, this is taught in passing in history class, but you don’t get to learn a lot about it unless you get deeper into anthropology and cultural studies, but it’s obvious you didn’t bother with that.

    Oh, and the marrying cats thing? You really need to understand something simple – today, marriage in the West is a social contract between individuals who are able to legally represent themselves. Cats and other animals are considered property in the eyes of the law. The slippery slope argument is fallacious.

    Education is a wonderful thing. You may want to try some.

  5. 1) How is marriage different between same-sex and opposite-sex couples? Unless you can show a difference (as recognized by law, so sex doesn’t work), then you are misstating that Judge Walker is “creating a new right.” In fact, as Walker so pointedly said in his ruling, it is the exact same right, not a new one, that same-sex couples marry. Your argument here falls apart when you place it in another scenario. In your scenario, the 19th Amendment to the constitution created a new right, instead of sharing that right to another repressed population. Would you agree that a new right was created?

    2) “Those outside of two-person, male-female sets who want conferred upon them the status of marriage paradoxically ask to be part of tradition. That is, they want the trappings of marriage: the ceremony, the rights and, although we rarely hear about these, the responsibilities. But they also want the tradition overthrown, or abandoned. There is no solution to this paradox.”
    Just like mixed-race couples, and the right to marriage for former slaves. The traditions changed, because the law changed. This tradition will change, as well.

    3) Judges overrule the “wisdom of society” nearly every day. And it’s a good thing, too. The reason we have representatives instead of direct election of legislation is to protect from what Jefferson called the “tyranny of the majority;” that is, the violating of a minorities rights by the will of the majority.

  6. That’s a very poorly supported argument you’re making, Mr. Briggs.

    In modern democracies the only way in which society confers rights to anyone is through laws. Laws which are not, as men, created equal, but which are ranked in importance. All the judge said is that the amendment of the Constitution of California in proposition 8 is against the rights protected by the US Constitution. He is not imposing onto the Californians any other burden apart from having to abide with the US Constitution. If the Californians don’t like that, they should get their representatives to amend the federal Constitution: if instead of proposition 8 it had been the 28th US Constitution Amendment, then there wouldn’t have been any discussion possible.

    As for your proposed multiple arrangements, again the judge is not making up any new laws, just forbidding inferior laws from going against superior ones. If the State of California issues a new law legalizing polygamy, and this is not against the state’s constitution, or the federal one, then the Californians will have a right to threesome marriage if so they please. Including animals would probably also require a constitutional amendment, as I don’t think that pets are currently entitled to the same rights as humans.

    But hey, whatever you want, all you’ve got to do is convince 2/3 of both Congress and Senate, and then have it ratified by 3/4 of the states, and there’ll be no judge spoiling the fun…

  7. DB’s “education” apparently did not include updates in current events wherein a movement in Switzerland recently wished to confer special legal rights to “social” animals. Briggs’ reference to a “cat” might seem silly, but substitute “goat” or “sheep” or other common farmyard “social” animals, and hordes of non-city dwellers will understand and accept the analogy. DB shows anew how blind one becomes to logic and reality when one seeks to impose her/his will or beliefs on others.

  8. DB,

    I TAed a class on sociology of marriage, and my understanding, though now a few years removed, is that only wealthier folks could afford the multi-spouse setup. Unless you’re referring to marriage prior to recorded history, in which case it’s rather difficult to say for certain. However, in most cultures throughout time, the commonfolk were in single spouse marriages of some sort.

    You are correct about women as property, though I’m not entirely sure where that comes into play?

    Same with love. Where did love come into this?

    And while I agree that Mr. Briggs took it too far when he delved into animals, what about the bigamy argument? It’s a slippery slope to a degree, but who determines what “marriage” is? Since marriage is, by definition, a social construct, why is bigamy excluded?

    Matt,

    The problem with submitting to society is that society can by tyrannical. The problem with submitting to the authority is that the authority can be tyrannical. But, if in this case it is the authority that is imposing its will upon the society, is it wrong? My feeling is that we should allow same-sex marriage of some sort, but I’m not entirely convinced that ramming it through will make things better for the same-sex couples themselves.

    I’m also not convinced, however, that we should submit to the majority. After all, the majority can be gravely mistaken in many cases (Jim Crow, Apartheid, Titanic.)

  9. And animals have always had some rights, 49er – like that we can’t beat them, or simply not feed them when they are in our protection.

    You still fail to show that an animal can enter into a contract, which marriage is, according to the state.

  10. Ari,
    Polygamy, like incest, could easily be stopped by the state showing a compelling interest in stopping them. The current ruling comes from the state failing to show any compelling interest in denying the right of marriage to gay and lesbian couples.

    As for “ramming it through the courts,” as the old maxim goes “justice delayed is justice denied.” Why should people have to wait to get access to a right that others have?

  11. “Rights?” Under what definition of “rights” is the ability to have your relationship with an individual categorized under a certain social custom considered a “right.” You can’t just redefine things all willy-nilly just because someone feels slighted. If I go to the store and ask for an orange only to be handed a grapefruit I’m going to say “Hey man. This isn’t an orange,” is the grapefruit farmer now supposed to complain about unequal access to my kitchen?

  12. PJ

    Loving v. Virginia
    “Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”

    via the Ninth Amendment to the United States Constitution. (People tend to overlook that one!)

  13. Andy,

    Animals have always had rights?

    I don’t think such a concept existed in most of Asia until quite recently. And really, beating an animal wasn’t a crime until maybe the 20th century, even in the animal-friendly West.

    Also, what compelling interest is there in stopping polygamy? Incest at least causes genetic problems in offspring. What compelling interest is there in stopping polygamy other than social distaste for it?

    And whether it is truly “justice denied,” it doesn’t necessarily make the case better for the individuals we’re concerned about in this situation. I’m less worried about gay marriage than I am about overall gay well-being. If marriage comes 5 years from now but also comes with great social acceptance, it may be worth it. The fact that Prop 8 even passed is at least some evidence that there is social unease about the notion of same-sex marriage. This is a serious concern, and all the lawyers in the world won’t make it better.

    Let me make this clear before anyone calls me some anti-gay bigot: I want there to be same-sex marriages. I’m just not convinced that the road being traveled to get there right now is necessarily the best one.

  14. Ari,

    Just because we didn’t recognize those rights, don’t mean that they weren’t there; we just denied them. (Of course, this is a tangent.)

    Maybe I should phrase it: “We’ve always had responsibilities to animals in our protection. We may not have always recognized them, but we are now.”

    And Ari, I wouldn’t call you a bigot. I’m interested in genuine discussion, not name-calling and silliness.

  15. “And it isn’t “Social Custom,” but the law. There is a difference.”

    Yes. The difference is that “the law” is any social custom that we decided is important enough to be worth bullying people into concordance over. But “the law,” in and of itself, carries no moral weight. What is it about law school that makes people incapable of having a normative discussion?

    And beyond that, where does the ninth amendment tell you people have a right to marry? Once again, you’re not defining anywhere the meaning of the word “right.” A “right” isn’t just “I want that!” That’s a desire. Desires =/= rights.

  16. Andy,

    Is case law now the ultimate authority on what constitutes a right now?

    What if I, daresay, disagree with some case law and believe the reasoning to be poor?

    I do not believe marriage is a right. That doesn’t mean that I believe it should be denied to people, but I don’t believe it is a right.

    I believe rights are specific, limited in number, and immeasurably precious to our existence. In that regard, I am rather strict in my interpretation of Western political philosophical canon, for better or for worse. I do not believe this is necessarily bad, however, as I believe that making everything a “right” confuses the discourse and cheapens the notion of rights as we understand them in our society.

    Also, are you implying that the 9th Amendment necessarily grants someone the right to marriage simply because it is not enumerated in the Constitution?

  17. “Maybe I should phrase it: “We’ve always had responsibilities to animals in our protection. We may not have always recognized them, but we are now.””
    A responsibility isn’t a right.
    I have a responsibility towards my fellow man such that I feel obligated to administer first aid if you collapse in the middle of the street. That doesn’t give you a right to my first-aid providing services. There’s a difference.

    If I refused to help you could justifiably call me an asshole. But to be an asshole is. . . my right!

  18. Law need not carry moral weight. Marriage, according to and in the eyes of the state, is a contract. Whatever Mr. Bigg’s is arguing isn’t codified in law in actuality, though he does wish it so.
    And every law isn’t social custom, just as every social custom is not law. Moreover, the origins of a law have little to do with it’s applicability to people.

    The SCOTUS, in Loving v. Virginia, found that right. Just because it isn’t enumerated, doesn’t mean it doesn’t exist. That’s what the Ninth Amendment is all about. They find this to be, more importantly, a “fundamental right.”

  19. Andy,

    Perhaps you wouldn’t call me a bigot, but I have been called such simply for saying that I do not like all of the methods used by the LGBT community.

    You said:

    “Just because we didn’t recognize those rights, don’t mean that they weren’t there; we just denied them. (Of course, this is a tangent.)

    Maybe I should phrase it: “We’ve always had responsibilities to animals in our protection. We may not have always recognized them, but we are now.””

    I disagree in this case. Animals lack rights because they are almost certainly lacking in the higher faculties possessed by humans. You could possibly make an argument for rights amongst certain apes and large sea mammals, but that’s about it.

    That said, the reason why I disagree with the “marrying a goat” argument is that the goat lacks the ability to make the decisions necessary for a marriage. The same goes for a child below a certain age.

    Well, or most people I meet on the subway, but I digress.

  20. 49erDweet: Still can’t represent themselves in a court as individuals, can they? No contracts or legal standing, as Andy said. Funny how you take “rights” and turn them into “OMG, gonna marry a fish!” Again, slippery slope, and again, a stupid argument.

    Ari: As i recall, one of the issues in societies with harems is that the wealthy/powerful in smaller social settings monopolize breeding females (wifes/concubines) and limit mating prospects for less-status males. The children born from those harems did not have the father’s status, only those of the primary wife. The nonmating males were pretty much left out in the cold if they could not find another woman.

    My point about women as chattel is that it was tradition as well… and we changed that. Women are able to enter into contracts and represent themselves. Before, they could not, and yet “marriage” was still used as a term for the coupling of a man and women for social/economic/political purposes, with or without consent of either or both parties. We are now disgusted with the idea that a father could force his daughter to marry someone against her will.

    The idea of marriage for love as the PRIMARY reason for marriage is something new, not traditional. For farming societies, you got married to have kids so that they would work the farm. A woman with good hips and a strong back was more desirable than a thin waif, because not only could she work the fields, but she could have strong children herself, and survive childbirth. Love may have been there, but a weak woman was a liability in the fields, so it was better to get a strong one.

    As far as bigamy and polygamy/polyandry are concerned… Tripods in politics and social contracts are the most unstable of relationships. It is difficult to have three people in an equal partnership, and those relationships tend to degrade eventually. I’ve known about five poly groups, and in every case, there were issues of jealousy or unequal time/access that doomed the partnership. The most stable of these relationships are one unequal ones, where there is a dominant member, and multiple subservient ones. The one on top has the power, the ones on the bottom have much less (eg., Mormon polygamous groups). You then have a harem, not a partnership.

  21. Andy,

    I might point you to a more recent ruling than Loving, by the NY Court of Appeals, as regards the Loving case’s applicability to this:

    “[T]he historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism’s worst manifestation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950s and 1960s, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. It is true that there has been serious injustice in the treatment of homosexuals also, a wrong that has been widely recognized only in the relatively recent past, and one our Legislature tried to address when it enacted the Sexual Orientation Non-Discrimination Act four years ago (L 2002, ch 2). But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.”

    Furthermore, your argument that the 9th Amendment is a free-for-all rights granting law is wrong. I think Lawrence Tribe said it best:

    “It is a common error, but an error nonetheless, to talk of ‘ninth amendment rights.’ The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”

  22. Ari,

    The reason that case law carries so much weight is because it is, in fact, the official interpretation of our constitution. Is it set in stone? Nope. But it’s all we’ve got. Without some authority to make these interpretations, we would never have any definitions of our rights.

    No, I would never imply the Ninth Amendments makes everything not listed a right, but even the most “inalienable rights” of life, liberty, and the pursuit of happiness are not listed in the Constitution. I was simply pointing out to PJ that the Constitution is not all-inclusive of our rights.

    /Not a lawyer

  23. Andy,

    Forgetting for a second that case law exists, we can actually discuss rights normatively and intelligently as concepts, rather than laws granted upon us by the powers that be.

    Wasn’t one of the big fears of the Founders had when writing the Constitution that people would rely only on it as the guarantor of rights and liberties? This was the big concern many of the Federalists had when writing the Bill of Rights.

  24. Andy,

    No, but it’s also an important legal body whose precedents affect legal canon. The SCOTUS is not the only legal body that matters in this country.

  25. I would be more than happy to discuss rights with you. Where shall we begin?

    What rights, do humans, inherently have?

  26. Andy,

    I’d love to keep this up, but I unfortunately do have to get to work. I’m not bowing out, wussing out, etc. I’m simply getting back to my job.

    I’ll see if I can pick this up later when I’m home– but no guarantee as I have Starcraft II waiting at home. The right to kekekeke zergling rush is definitely up there tonight…

  27. Ari,

    Have a great day. Please don’t think I’m being obtuse, I just like a good debate occasionally. 🙂

    Have fun with Starcraft.

  28. I’m also not convinced, however, that we should submit to the majority. After all, the majority can be gravely mistaken in many cases (Jim Crow, Apartheid, Titanic.)

    That’s democracy . And the democracy will force to submission anybody according to the wishes of the majority .
    The majority rules will differ from country to country (50% +1 , 2/3 , 3/4 whetever) but there will always be a provision saying that a majority can change even … the majority rules .
    This is not about rights or responsabilities and never was .
    The desires and opinions of everybody are irrelevant as long as they do not contribute precisely to pass some threshold above which these opinions and desires become law .
    I am not familiar with this case .
    But the judge clearly interpreted in a new way existing rules (laws) .
    The important word here is existing .
    I am ready to trust the judge’s professionalism that his interpretation is completely and logically consistent with existing rules . After all that’s his job he gets paid for .
    However this is just a very formal game (yes judges will always prefer to use formal points rather than deeper facts if they can) .
    .
    Actually this interpretation is very transient and fragile .
    If some majority simply doesn’t like his interpretation and also here the right word is “like” , it will change the rules of the game so that the judge’s interpretation will become inconsistent with the new rules .
    And then the exactly same judge will make a ruling completely negating his previous ruling because his job is consistence and not some higher callings .
    .
    In depth William is right . It is really everything only about traditions and what the people like .
    There is only one invariant law known alreday by the Man of Cromagnon – if your group is larger , you can and will beat into submission any smaller grou .
    Today we became more civilised and instead of using stone maces we beat minorities into submission with judges .
    And yes it is tough having an opinion that is not a majority’s opinion because then it will be YOU who will be beaten into submission regardless how worthy and lofty you hold the said opinion .

  29. “Rights” is a pretty ill defined concept, as the above discussion shows. In the USA in times past, rights were those things listed in the Constitution, usually expressed as freedoms from government coercion. These days, in the USA, a right seems to be anything that a sufficiently vocal minority agitates for and a judge can find peeping out from under a penumbra.

  30. There is an argument that in cases like this
    where the existing laws, constitution,
    prevailing social principles, etc. are in
    conflict, the judge’s task is to essentially
    assign a pecking order to these rules
    for the case in question. I don’t really
    see it as him trying to bend society to
    fit his personal preferences.

  31. Person of Choler: That’s a pretty good assessment. The Supreme Court has found that marriage is one of those rights.

  32. Marriage cannot be considered without reference to propagation. It is about property rights. It is an institution recognised by society that the male partner has absolute right over the property of the union -such property being the wife, his children and wealth generated by him or the partnership – that ensure the exclusivity of his genetic line and that his property and wealth will be inherited only by his genetic line.

    Women being allowed to own property in their own name; being allowed to divorce their husbands; marital rape; mothers given custody over children in the event of divorce are all relatively recent modifications to the conventions of marriage.

    Since property rights and inheritance down the genetic line cannot apply to same sex unions, marriage has no place. In fact arguably, given modern modes, it is outdated for opposite sex marriages too.

    Time then marriage was replaced by some other institution more appropriate to modern times and its eventualities.

  33. Yes Andy you are right, the SC has, through the years, used the constitution, like a magician’s hat. A plain reading of the constitution is not enough, it requires a priesthood to tell us the latest Easter eggs, it has found therein.

    Democracies correct themselves albeit not at the pace the keepers of “right view” want. There is no substitute for agitating and having your legislators legislate, rather than judges. To believe otherwise is to believe in dictatorship, perhaps benevolent.

  34. Imo, the value of a traditional marriage has been practically weakened and, in a way, abandoned by our own selfishness and acceptance of divorce, but not by the recognition of same-sex marriage. So, is this really about the abandonment of traditional nature/definition of marriage?

  35. I am a California resident. I thought long and hard before voting against Prop 8. I’m not gay, and I’m not married, so there are no real impacts on my personal life. As a Libertarian, I concluded that when marriage became an institution that REQUIRED a piece of paper from the County Clerk it became a right available to everybody. The root of the problem is blending the religious and legal aspects into one concept called “marriage”.

    I happen to favor an arrangement where marriage is a religious ceremony and you have one if you (and your partner) want one and can find a religous organization that will provide it on terms agreeable to both partners AND the church. Adherence to those terms has implications for your membership in that religious organization, but no legal standing.

    But everybody (gay couples and straight) that want the legal protections (and obligations) now provided by a marriage goes down the the county clerk and signs that “piece of paper” that defines the terms, rights, and obligations. The legal contract is completely separate from the religious marriage ceremony, but is required by every couple wanting the legal rights/obligations now provided by marriage.

    In the first case, the religious organization makes the rules on who can participate. In the second case, any two persons that are legallly able to sign contracts should be eligible. And note that neither minors nor animals can sign contracts, so they would not be eligible.

  36. Deebee – how do you explain the text of Amendment 9? Obviously there are rights that are not in the constitution, correct?

    So the Supreme Court, our ultimate authority on constitutional law, has found rights there. That isn’t a magician’s hat, any more than right the right to keep guns, instead of “arms,” as the amendment 2 clearly reads.

  37. Pardon the delayed response. Andy said:

    “And animals have always had some rights, 49er – like that we can’t beat them, or simply not feed them when they are in our protection.”

    I would respectfully disagree. What Andy is describing are “duties” of individuals not “rights” of the neglected. The presence of one does not impute the other – on a legal basis – unless so stated by statute. Or that is what I remember from “contracts” and “torts:

    And Andy also said:

    “You still fail to show that an animal can enter into a contract, which marriage is, according to the state.”

    .

    Currently an animal can’t. But a human can “own” an animal, just as men once “owned” their wives, and can enter into contracts for the animal to provide or perform “services”. Whatever that means. In other climes and eras fathers entered into “marriage contracts” that were then legally enforceable. What may be unthinkable today could become commonplace tomorrow.

    Anyone thinking animals will never be allowed to enter into some type of “marriage” arrangement are simply not following the logic chain here. Could that be wishful thinking? Or merely self-induced denial because it doesn’t fit within their narrative? All I know is that centuries ago most men would never imagine the day could come when their wives would be able to enter into their own contracts or vote in public elections. Rule #44. Things change.

  38. For the last 150 years, it has been the state, not culture, that conferred special status to “husband and wife.” The state and the culture are not the same entity. Certainly, some in a culture use the state for their own purposes, just as some folks 150 or so years ago began using the state to define marriage. Today, folks are married if and only if the state says so.

    The decision in California is just another step in this direction. Now the culture MUST confer special status to same-sex marriages.

    The issue in all of this is the state and its use of force to force folks to confer that which they do not want to confer.

  39. 49er – Please read my restatement of the “rights” vs “responsibilities” in animals idea. I already agreed it was misstated.

    Your argument about animals getting marriage rights is what is known as a slippery slope. It’s also a logical fallacy. There is no reason to think that this action will cause that.

  40. Andy, I’m hoping the idea of “marriage” to animals is as you and DB state. I understand it is what you both believe to be the case. My concern is that I’ve lived too long to believe that what “everyone” believes now will forever be in force. Rule #44 Things change. Tuck that rule away in your memory bank. Some day it will dawn on you. “That old 49er fart was right”! [Smack on forehead]. I think over the weekend I’ll post my predictions on this topic on my own blogsite.

    Btw, thanks for the civil discourse. You represent your pov well.

  41. Not to quibble but TomVonk said:

    That’s democracy . And the democracy will force to submission anybody according to the wishes of the majority”.

    Which is true. But again the classic disconnect between the form of government we actually have and what others apparently wish we had.

    A democractic republic goes about things a trifle differently than a democracy. As do we. Sometimes that difference is important, other times not so much. But imho we need to keep the difference in mind.

  42. I think some clarification is needed about the concept of marriage.

    First, marriage can only be between to people since both spouses have to agree/consent to the engagement. The obligation of consent means that animals and things cannot get married since they can agree or consent. Multiple marriage is another problem that might be brought up to court in the future, and the legality/illegality may get muddier.

    Other than that, civil marriage is a simple contract that give some advantages to the married couples which affect taxation and heritage. That two men, two women or a man and woman get married, doesn’t affect the right of the others.

    Religious marriage is another matter, and I don’t believed that any states/countries obligated any religion to proceed with same sex marriage. So religious belief aren’t affected by the right of same sex civil marriage.

    The day that people will stop trying to control the life of the others will be the happiest day.

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