From Virginia Postrel:
This is not just rude. It's bad politics. If you want to get Californians to vote against a state-constitutional amendment to ban same-sex marriage, you should keep the obnoxious leftist lawyers out of sight and highlight the happy families--preferably with kids, mothers-in-laws, grandmas, siblings, etc. joining the celebration.
I suspect that California's gay community is going to ultimately regret this judicial overreach. Particularly if it results in California going to McCain in November.
[9 AM update]
Eugene Volokh has some thoughts on the collision between gay rights and religion:
Instead of gay marriage causing a collision, both gay marriage and religious conflicts with antidiscrimination law are themselves the product of a much larger trend that is moving the tectonic plates of our culture. That trend is the increasingly common view that homosexuality is a natural and harmless variation of human sexuality, that gay people are entitled to be judged on their merits and not on the basis of outdated opprobrium, and that these beliefs should to a significant degree be reflected in law.
Many people in our society object strongly to this trend. I think the law should make room for them to a considerable extent. It should be possible, in particular, to recognize gay marriage and to continue to protect religious faith at least to the extent we have already done so when religious views about marriage diverge from the secular law of marriage. Of course no religion should be required to change its doctrine to recognize gay unions. Of course no religious official should be required to perform a same-sex marriage (or an interracial wedding, as some once did, or a second-marriage wedding, as some do now, or any other wedding he objects to). These things have never been required and nobody is asking that they should be.
While marriage and religious belief are one creature in the minds of many people, they are separate things in the law. Catholicism and Orthodox Judaism, for example, refuse to recognize secular divorce. But few argue that we should refuse to let people divorce for this reason. One can be divorced under the law but married in the eyes of the church. The statuses can be separated without a diminution of religious liberty. And nobody thinks that this de-linking of the two constitutes official oppression or the obliteration of religious freedom. Similarly, in principle, it should be possible to have a regime in which same-sex couples are married under the law but not married in the eyes of a given religion -- all without extinguishing religious faith.
A lot of this would go away if the state got out of the marriage business.
A lot of this would go away if the state got out of the marriage business.
Bingo!
A lot of this would go away if the state got out of the marriage business.
But they can't. One of the oldest functions of the State and the Courts of Common Law are to judge inheritance and property disputes. Such disputes are indivisible from issues of marriage.
One of the oldest functions of the State and the Courts of Common Law are to judge inheritance and property disputes. Such disputes are indivisible from issues of marriage.
Nonsense. The State handles such disputes everyday as it involves property between individuals who have formed partnerships, it is just called business and not marriage.
Leland, if you think corporate law can sub in for family law, you clearly have no exposure to either.
Nice rhetoric, but not very functional as an argument. Tell us, Brock, how Corporate law handles gay couples, not recognized by the state as married, adopted a child and then seperated? Did the state first have to get involved in marriage in order to handle such a case in family law? Maybe you think two children fighting over inheritence are married to each other?
Leland, I believe either one of us is misunderstanding the other or you are being deliberately obtuse. I would never suggest that Corporate law could "handle" disputes among divorced gay couples' children; I was saying just the opposite.
I took your first argument to mean that "the law governing business partnerships is sufficient to handle inheritance and family disputes." My contention is that it is not. A specific body of law governing inheritance issues (which is closely linked to real property law for a host of good reasons) is needed to resolve disputes of this nature, and if the Courts are ever going to resolve those dispute they will need to have a jurisprudence for determining who is and is not married, who is an heir, and who has rights in probate and trust law.
The Courts hold the reigns of the police power and are therefore the dispute mechanism of last resort. Any dispute mechanism must have rules for deciding how things are, and what things are relevant and irrelevant to the dispute. Including marriage.
To address Rand's point, the State cannot simply "opt out" of deciding who is and is not married. It must be involved, for the reasons outlined above.
I don’t see why the government cannot change the name of the form to Civil Union and dispense it to anyone wishing to pay the $25. If your church requires it before they will marry you so be it, otherwise, that’s fine too. In the case of the government, the whole purpose of the process is to ensure the orderly transfer of property between the participants and their heir’s in the event of disillusionment. If gay people wish to have the right to sue each other in court when their relationship dissolves, that’s seems reasonable to me. Why should hetero couples have to support all the lawyers? At present any gay couple can be married in any church that condones such behavior. So be it.
There's a difference between being the final arbiter of contracts including marriage, and deciding not to recognize some contracts because a few voters are squeamish about homosexuality.
"a few voters"?
More like a solid majority in every state.
There's a difference between being the final arbiter of contracts including marriage, and deciding not to recognize some contracts because a solid majority are squeamish about homosexuality.
Fixed.
Brock, I think you're wrong. You would certainly have to do some fiddling here and there, but it would not only be possible but highly desirable to substitute ordinary contract law for the detestable mish-mash of institutionalized prejudice, dated crap unconnected to 21st century reality, and logically inconsistent emotionalism that is our loathsome excuse for "family law."
There is no need to determine who's an heir, because a man should have the right to write that down for himself in his will. If he dies intestate, there's no reason not to let everything escheat to the Crown, so speak. Gives people a very good reason to write their damn wills and not burden the rest of us with figuring out posthumously what they wanted.
The only reason we have the garbage we do in inheritance law is because the majority feels like forcing its views on testators, with not providing them with complete freedom of choice in how they dispose of their wordly goods. Well, screw that. Belongs back in the time when families determined who daughters could marry.
And as for marriage? Let people define their mutual rights and responsibilities however they wish, and then let the Courts retreat from their present false position as moral judges to an impartial enforcement of contracts. And if you failed to get something important in writing before tying the knot? Too bad. You're as out of luck as if you forgot to sign up for medical insurance when open enrollment came around.