"deeply sadden"?

Iowa?? Really??

Except this isn't Iowa... it's seven Iowans with robes.

Slowly, the last socially acceptable form of bigotry begins to fall...

Congrats to the Iowa Supreme Court and gay couples in Iowa (and elsewhere)!

Proud to be from Iowa!

as the judges cornhuskers or cornholers?

like presidential campaign caucus, as iowa goes, so goes the nation!

today we are all Iowans.

Elie you are incorrect to assert that "more people will be allowed to get married"

This ruling simply changes the definition of marriage in Iowa (to make it so that you have twice as many people to choose as a "marriage" partner")

flyover state

"Ready or not, history is coming."

Dude this smug attitude is what let prop 8 pass. Stop shoving it down people's throats.

hey Elie, aka Gavin Newsome, stop shoving your agenda down our throats. between this and the screed about Harold Koh, we dont come here to read about your fucking political views.

It would have been much more significant if a real state had done this.

What a fantastic ruling. Not that I would want to marry any of my young friends. But, this does give me some confidence in the willingness of the legal system to uphold my rights. Perhaps I'll consider moving to Iowa. I'm sure there is some young farm boys with very pretty mouths there.

So now there will be a constitutional amendment in Iowa redefining marriage.

7 - you're a moron. That's Nebraska.

Are the judges Buckeyes or Browneyes?

When I see old film clips of racist whites in the early Sixties, screaming at Dr. King and the Freedom Marchers, I always think that is how we will consider the anti-gay marriage crowd in 40 years.

really "sadden" that your grammar blows

Comment removed by moderator.

I loathe the smell of judicial activism in the morning.

yay!!!!!!!!!!!!!!!!!!!!!

PS just wait a year or so for a new constitutional vote to pass gay marriage in CA too.

SUCK IT BIGOTS

Iowa Constitutional amendment in 3...2...1...

Apparently equal protection can now be redefined every generation according to the whims of judges. That's what we all learned in law school wasn't it?

17 - you're the moron. That's Ohio.

Are the judges Hawkeyes or Browneyes?

What are the chances that Iowa amends their constitution? Better than Cali? It seems that Iowa would have more support for a popular amendment to the constitution. Does anyone know what the procedure is there?

Hey 4

So does this mean that any limitation on marriage is "bigotry"? Why are you singling out gay marriage? Is it "bigotry" to deny a marriage license to 5 men and 5 women wishing to all marry each other? The point is that society has a right to demarcate the bounds of a socially unique relationship like marriage. Marriage isn't a "right" that fell down from the sky; it's a creation of civil society and a privilege; society has every right in the world to limit it via the democratic process. Placing limits on marriage does nothing to infringe on anyone's natural liberty. Crying "bigotry" has become the standard liberal temper tantrum; I guess denigrating one's opponents is easier than making a cogent and logical argument, right?

10 clearly has never studied economics.

More choices = lower cost = more marriages. Do you analyze your litigation/corporate cases that poorly as well?

Next on the chopping block...

we're not in Kansas anymore.

Could someone explain the Partner Emeritus schtick to me?

Yes yes. But what about Michael Best?

http://milwaukee.bizjournals.com/milwaukee/stories/2009/03/30/daily67.html

http://www.madison.com/wsj/home/biz/444505

Is this heaven? No, it's Iowa.

30 - the above comment is from someone hoping to confuse people into thinking he is the real partner emeritus. note the spelling of emeritus in the above moniker.

haha @15 -- Partner Emaritus, the evil twin of Partner Emeritus

Is this heaven? No, it's Iowa.

Is this a barren wasteland filled with slow speaking inbreds? Yes, it's Iowa.

haha @15 -- Partner Emaritus, the evil twin of Partner Emeritus

www.dominatethebar.com

don't just study... DOMINATE!

27. Funny you should put it that way, since a lot of people who oppose gay marriage (to say nothing of the people who would advocate giving a marriage license to five men and five women who all want to marry each other) think that marriage is precisely something that "fell down from the sky."
-- Elie

18: "I always think that is how we will consider the anti-gay marriage crowd in 40 years."

Unlikely. With southern segregation, most of the country had long been integrated and the south was a backward anomaly. In this case the majority of the country is anti-gay-marriage.

Besides, this is all tied up with the religion issue unlike race. The anti-gay people will always have a good justification in the bible.

Um, 24, yes, the demands of equal protection under the 14th Amendment have changed significantly from generation to generation you ignorant f*ck. See Plessy, Brown, the early sex discrimination cases, Craig v. Boren, etc.

Are you the one person left who thinks equal protection is a useless enterprise?

When can I marry my cow?

Do what you want behind closed doors, heck, in the open, but until the two of you can shoot out a kid, don't come asking about marriage. Sorry.

16 and 23 are right.

Yawn.

The only suspense will be if the legislature can do the amendment on its own in the 31 days or if we have to wait till the next statewide ballot.

Totally don't care about Ellie's opinion. Go write for the NYT op-ed page...oh, wait, they require spell checking.

Shearman deferred.

Unanimous decision! Today I'm proud to hail from the great state of Iowa.

Now Stan and Kyle can stop pretending to be best buds, move to Iowa, and get married. SWEEEEEEET!

17, that's Ohio.

You mean Hawkeye or broweye.

17, that's Ohio.

You mean Hawkeye or browneye.

17, that's Ohio.

You mean Hawkeye or browneye.

17, that's Ohio.

You mean Hawkeye or browneye.

Unanimous decision! Today I'm proud to hail from the great state of Iowa.

Who cares if Iowa passed gay marriage ban? The religious institutions don't have to marry same sex couples if they don't want to. All the ruling says is that the state cannot place an absolute ban on same sex marriages. Basically, same sex partners can obtain a marriage license through the state. This is what the ruling says. All of the bigots who scream that this is unmoral and goes against the bible and teachings of Christ can still be bigots they wish to be.

"The only suspense will be if the legislature can do the amendment on its own in the 31 days or if we have to wait till the next statewide ballot."

44, any amenment to the Iowa Constitution has to be passed on by a majority of two successilve legislatures before it can be put to a vote. So we're talking 2012 at the earliest. So, no suspense...

And for all you other haters, I'll quote Kathy Griffin on the same subject: "What the f*ck Is it to you?"

http://www.towleroad.com/2009/03/kathy-griffin-to-samesex-marriage-foes-what-the-fck-is-it-to-you.html

"The only suspense will be if the legislature can do the amendment on its own in the 31 days or if we have to wait till the next statewide ballot."

44, any amenment to the Iowa Constitution has to be passed on by a majority of two successilve legislatures before it can be put to a vote. So we're talking 2012 at the earliest. So, no suspense...

And for all you other haters, I'll quote Kathy Griffin on the same subject: "What the f*ck Is it to you?"

http://www.towleroad.com/2009/03/kathy-griffin-to-samesex-marriage-foes-what-the-fck-is-it-to-you.html

28-

Don't be so sure of yourself. Elie said this ruling "allows" more people to get married. 10 is correct, this ruling does not increase the number of people legally permitted--allowed--to marry under Iowa law. Rather, the same number of people are allowed to marry but can now choose to marry a person of the same sex.

Sorry 28, you probably misread 10's post and were too quick to condemn. Or...perhaps you are bitter because you were laid off.

"The only suspense will be if the legislature can do the amendment on its own in the 31 days or if we have to wait till the next statewide ballot."

44, any amenment to the Iowa Constitution has to be passed on by a majority of two successilve legislatures before it can be put to a vote. So we're talking 2012 at the earliest. So, no suspense...

And for all you other haters, I'll quote Kathy Griffin on the same subject: "What the f*ck Is it to you?"

http://www.towleroad.com/2009/03/kathy-griffin-to-samesex-marriage-foes-what-the-fck-is-it-to-you.html

anyone else notice that gay couples dont have the right equipment to do what heterosexual couples do? thats not to say anything bad about either group, there's just a rational basis for discriminating between the group.

It will be a while before any Iowan Constitutional Ammendment:

Lobbying began immediately for lawmakers to launch the long process of a constitutional amendment to define marriage as only between a man and a woman. No such legislation will be approved this session in the Iowa Senate, McCoy said. Senate Democratic Leader Mike Gronstal won’t allow it, he said. Such an amendment requires the votes of a simple majority in both the Iowa House and Iowa Senate in two consecutive sessions, followed by a passing vote of the people of Iowa.... Such a change would require approval in consecutive legislative sessions and a public vote, which means a ban would could not be put in place until at least 2012 unless lawmakers take up the issue in the next few weeks.

44, Iowa law requires the amendment to pass by a majority in two consecutive Assemblies, followed by a majority in a statewide vote. Earliest that could happen is at least a couple of years.

I love my flyover state.

-Proud Iowan

Am I hearing this right that this was a *unanimous* decision? I for one am shocked!

@40: "Unlikely. With southern segregation, most of the country had long been integrated and the south was a backward anomaly. In this case the majority of the country is anti-gay-marriage."

Your knowledge of history is obviously in tip-top shape. Just ask the Southies in Boston, people on the Hill in St. Louis, and Detroit's white denizens what they thought of African-Americans circa 1962. Jackass

"esides, this is all tied up with the religion issue unlike race. The anti-gay people will always have a good justification in the bible."

If by good justification you mean shitty and poorly reasoned. Now if you'll excuse me, I have some unclean women to go stone...but don't worry, I have excellent religious justifications.

THE STUPID....IT BURNS!!!!

@40: "Unlikely. With southern segregation, most of the country had long been integrated and the south was a backward anomaly. In this case the majority of the country is anti-gay-marriage."

Your knowledge of history is obviously in tip-top shape. Just ask the Southies in Boston, people on the Hill in St. Louis, and Detroit's white denizens what they thought of African-Americans circa 1962. Jackass

"esides, this is all tied up with the religion issue unlike race. The anti-gay people will always have a good justification in the bible."

If by good justification you mean shitty and poorly reasoned. Now if you'll excuse me, I have some unclean women to go stone...but don't worry, I have excellent religious justifications.

THE STUPID....IT BURNS!!!!

How gay.

This blog is starting to suck BIG TIME now that it's just a clone of the Huffington Post. No one wants to hear your liberal ranting Elie, not about Koh, gay marriage, or anything else.

YESSSSS!!!!! 3 DOWN, 47 TO GO!

57 -- Nice argument on semantics.

I believe that both 27 and Elie are making the background assumption (you did learn about those, yes) that a homosexual individual can only marry another homosexual, not someone of the other sex.

In which case, as they were prohibited from marrying somebody of the same sex, they "couldn't" get married. Now, they can.

Your argument is correct in that physically (and legally) speaking, nothing kept gay people from getting married -- it kept them from marrying who they wanted. But this is a distinction without a difference. As they say, in france, the law in its wisdom prohibited both the queen and the pauper from sleeping under bridges.

I just hope this doesn't backfire. The conservative nut-bags like Ann Coulter have been pretty tame (comparatively) as long as gay marriage kept to the fringes of the NE and the West Coast. But if it starts popping up in the nice, safe heartland, all hell could break loose.

I hope this blog becomes history. It sucks.

Yeah, stop posting about anything other than who is getting laid off and where. I hate topical legal issues!

Elie/27:

maybe so, but those who root their arguments in the teachings of Jesus have just as much a legitimate point as those who root their arguments in the teachings of other philosophers. I personally find purely God/Jesus-based arguments to be rather unpersuasive but they are no less legitimate than arguments that appeal to other philosophical creeds. A Christian has just as much a right to seek the implementation of his objectives through the democratic process and marketplace of ideas as a (for example) socialist does.

you didn't address the point I was making, namely, that there is no coherent principle underlying the pro-gay marriage movement except an odd fixation on homosexuality. The vast majority of those who claim to be for "marriage equality" are in favor of every single other limitation on marriage currently on the books; thus, they're not really in favor of marriage equality at all and are evidently just as "bigoted" as those they criticize. What bothers me far more than gay marriage itself is this kind of irrational and intellectually bankrupt fervor of those who advocate for gay marriage and their concomitant tendency to try to silence all opposition by personal attacks. This attitude, in conjunction with their blatant use of the courts to impose this kind of policy agenda is, in my view, deeply dysfunctional to democracy.

--4

@65 (40 here):

"Your knowledge of history is obviously in tip-top shape. Just ask the Southies in Boston, people on the Hill in St. Louis, and Detroit's white denizens what they thought of African-Americans circa 1962. Jackass"

That doesn't change the fact that the south was a backward anomaly. Who cares if working class Catholics in Boston were afraid black people would take their jobs?

"If by good justification you mean shitty and poorly reasoned. Now if you'll excuse me, I have some unclean women to go stone...but don't worry, I have excellent religious justifications."

That's a cross-cultural comparison, not relevant here. The US isn't getting rid of the Bible anytime soon, so the Christian justification for being anti-gay marriage will not be viewed as backward for a long, long time.

36 - at least the "slow speaking inbreds" in the state of Iowa know the definition of barren. You can call Iowa a lot of things, but calling the most productive farmland in the country barren? Sorry dude, but that is the complete opposite of barren. Try Nevada.

p.s. - The children of these "slow speaking inbreds" managed to get the second highest average ACT scores and the highest average SAT scores in the nation last year. Perhaps they could assist you with your English.

In the eyes of the law, the only way that same sex couples can get corporate and survivor benefits are through marriage.

Allow a libertarian to solve the problem. All of this ridiculous fighting could be avoided if marriage (of any kind) was an institution outside of government control. The government should have no role in granting people a marriage license and the rights that accompany it.

25 & 49-52, can you explain to me - is there a difference between Iowa and Ohio?

I thought the blacks in Baltimore were bad. It turns out they're nothing compared to the fags in Iowa.

#73 is exactly right. Hell, Boston didn't even desegregate its schools until 1974. That's 30 years after Arkansas. And even then they had massive riots on ther hands:

http://www.youtube.com/watch?v=URpJrtd7KAs

36 = comment of the day

Wow, 59, no. I don't think anyone has EVER noticed before that gay couples don't have the "equipment" to "do" what heterosexual couples "do." I for one am outraged about the discrimination perpetrated by hardware and home improvement stores across this nation and will be lobbying for equal equipment rights from today forward.

Also, a lot of heterosexual couples (old ones, for starters) also do not have the "equipment" to conceive children, if that is what you're actually referring to. But most of us are well familiar with this line of argument and do not need to rehash it here on ATL. I'm glad that you have finally "noticed" it though.

75 - false, there are various will substitutes that can function to give a same sex partner the same survivorship benefits as a spouse. The only thing they can never have is the forced share. But that can be fixed if the deceadent partner actually wants to by provided the surviving partner enough that the forced share would never play anyway.

74 - Iowans have high scores on standardized tests at least in part because those tests are developed in Iowa and regularly given to Iowa students to refine the questions.

Gentlemen at the legal preparatory academy with which I was once affiliated, in a minority of circumstances, chose to engage in sexual and other relations with other individuals possessing the same chromosomal structure as themselves. Some of these gentlemen desired to enter into a legally binding contract pertaining to the relationship forged between them, and thereby to become the beneficiaries of the legal rights and to bear the burdens of the legal obligations that are part and parcel of the legal relationship commonly described as marriage. It wasn't a big deal, but for the notion held by others that such a relationship could not be countenanced at law or in equity.

Legal Fraternity Lothario concurs in the opinions of those who believe opponents of "gay" marriage will find themselves on the wrong side of history, just as those who have sought to discriminate on the basis of other perceived differences have been cast aside.

are there jews in iowa, and if so, can they marry non jews?

QUINN REMAINS unmarried ... sadly

Hallelujah!

And Elie, I LOVE hearing your liberal rantings. Makes my day.

Legal Fraternity Lothario FTW as always.

75 - True. Because the overwhelming majority of marriage rights and responsibilities have been created through statutes and regulations specifically for spouses, same-sex couples and their families are by definition left out, no matter what private contractual arrangements or other “work-arounds” they try to create. For example, New York State law limits Workers’ Compensation survivor benefits, like the vast majority of entitlement programs, to people who are married. Therefore, these benefits cannot be passed on to any other dependent, including a domestic partner, by hiring an attorney to put together a will or other private legal agreement between the partners or by any other way.

Furthermore, while married couples typically can predict how they will be treated by government based on their married status, LGBT couples and their families may be left at the mercy of a court or agency to decide whether their relationship will be deemed sufficiently committed to warrant formal recognition or whether they will instead be seen as mere strangers in the eyes of the law. This can be true even when a couple has gone to the trouble and expense of hiring an attorney to draw up legal documents confirming their relationship.

Does anyone else here think that the solution is just to get the government out of the marriage business? It is such a loaded term with a historical/religious connotation that we do not need. The state can still regulate the coupling of citizens with Civil Unions, which everyone will get regardless of sexual orientation. People can use the term "marriage" as they wish. Understanding that "marriage" is a fundamentally religious institution, wouldn't this work for everyone?

65 (If by good justification you mean shitty and poorly reasoned. Now if you'll excuse me, I have some unclean women to go stone...but don't worry, I have excellent religious justifications.):

You complain about ignorance, but you are obviously ignorant of the Bible and how the Old Testament applies vis a vis the New Testament.

You might also know that Jesus personally stopped a woman from being stoned ("Let he who is without sin cast the first stone").

Elie, don't be "sadden" that everyone on this blog hates you. We really just hate your gay agenda.

There is little interest in a constitutional amendment.Iowans frankly have more important things to worry about.GO HAWKS!!

In thirty or forty years, many of you miserable anti-gay rights fucks will have grandchildren, and those grandchildren will be ashamed of you for your homophobic views. When the issue comes up, they'll wave it off, saying "oh, that's just Grandpa, he grew up in a different time." And I just want to set the record straight that the time was fine -- Grandpa was just always a miserable, worthless fuck.

Not all Christians are against allowing same-sex couples to marry. Good for Iowa.

LET FREEDOM RING!!!

O! say can you see by the dawn's early light
What so proudly we hailed at the twilight's last gleaming.
Whose broad stripes and bright stars through the perilous fight,
O'er the ramparts we watched were so gallantly streaming.
And the rockets' red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there.
O! say does that star-spangled banner yet wave
O'er the land of the free and the home of the brave!

people forget that anti-miscegenation laws were justified by religion too. religion = tyranny

It saddens me to think how many more hundreds of thousands of hours will need to be spent defending today's decision and sustaining it against the conservative know-nothings who are consistently on the wrong side of history (see, e.g., civil rights, women's rights, gay rights), when such hours could be better spent making our society just a bit more fair and just in other ways.

Sorry, conservatives, if your "rigid" world-views cause you to keep fighting this. That won't prevent the rest of us highly-educated folks who manage every important lever of power in this society from looking down at you as reactionary, know-nothing, bigoted morons.

Hooray for judicial activism run amok! Hooray for tossing out established legal definitions that have existed since the dawn of Anglo-American jurisprudence! Hooray for pederasts and the lifestyle responsible for the plague of the late 20th century that is now wiping out the heterosexual population of sub-Saharan Africa! And hooray for Elie Mystal, who managed to get a job writing for a living despite the fact that every post he makes reveals that he is functionally illiterate.

@92

65 here - Yes Jesus said that his new law would wipe away the old law of Moses. I'm generally for that. What I'm not for is imbeciles picking and choosing what they want to apply from Leviticus and Deuteronomy while ignoring the core message of tolerance found in the Gospels (particularly Luke and Mark).

Furthermore, the wondrous New Testament has its share of shit piled into it. See the epistles from Paul (the reactionary ones were not in fact written by Paul - see John Paul Crossan's work on this) where he allows for slavery and misogyny, even though the real Paul almost certainly would have abhored these later epistles that were written in his name and adopted by the Church as justification for defense of the status quo (he even went preaching alongside women preachers in Anatolia, as mosaic evidence demonstrates).

But yeah, I'm still clearly ignorant on all things biblical. I just choose to apply a little fucking reason to what I read, unlike morons like you, who probably wish they could felate the rotting corpse of Jerry Falwell if they had an opportunity.

Finally! This is a ruling my pine tree and I have waited for for a long time. A long time.

83 - the tests aren't regularly given to most students in Iowa to develop and refine questions. Perhaps some small groups, but as a product of the Iowa education system, the only time I took the ACT was when I was applying for college. I'd guess it has more to do with a quality education system and a culture that puts an emphasis on hard work, which has also resulted in the second highest high school graduation rate in the country.

Hooray for people like 99, who, because of their ignorance and bigotry, inspire thousands of us every year to work towards upholding equality and justice for all!

Thank you, 99. You are what inspires me every morning to commit time and effort into fighting policies promulgated in the past because of ignorance and reactionary bigotry!

There is something about this post that is really gay.

98 = Iowan (see #36 - "Is this a barren wasteland filled with slow speaking inbreds? Yes, it's Iowa.")

Liberals are super mean. Everyone needs to chillax.

"there is no coherent principle underlying the pro-gay marriage movement except an odd fixation on homosexuality. The vast majority of those who claim to be for "marriage equality" are in favor of every single other limitation on marriage currently on the books; thus, they're not really in favor of marriage equality at all and are evidently just as "bigoted" as those they criticize."

Seriously? Aren't you a lawyer? The ONLY reason there is a ban on gay marriage is the religious reason. Religious policies are not for the government to impose. The other bans on marriage have important public policy considerations behind them...are you seriously suggesting that it is hypocritical to be against adults marrying children, for example, but to be for homosexuals having the right to get married? Give me a public policy reason beyond the bible, and we'll talk. Otherwise, I would like to go back to reading the Establishment Clause.

40/73. You're wrong. Most of the country had segregation laws, or at least widely tolerated the practice, up until shortly before the civil rights movement. Boston, New York City, Chicago, even the west coast. While the south was where the practice was most visible, due to the history of slavery and larger black population, to say that legalized segregation was only a southern phenomena, is just plain wrong.

Also, the Bible's teachings, and "traditional family values," were the exact same arguments used by opponents to racial integration. Acts 17:26, the confusion of the Tower of Babel, and many other stories were taken as an indication that segregation was God's will. Read the Supreme Court of Virginia's opinion in Loving v. Virginia: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

So no, segregation was not a backwards practice of a small region, and yes, the Bible was used to justify its persistence.

If liberal judges and law professors would just come out and admit the law is "whatever we happen to feel like at any given moment," it would make the whole charade of spending three years in law school to learn a bunch of theories and rules that are just going to change whenever they want to justify something else much simpler.

Finally some good news for us lawyer gays. Congrats to Iowa!

Also, I do enjoy watching all the Fed Soc types cry every time Elie posts something ever so left of center. Keep it up girls!

This is an important decision, but really it belies the Obamian way of life, which is to ENCOURAGE and PROMOTE discrimination, so long as that discrimination is not directed at, toward, and against the traditionally discriminated against population in this country.

Iowa ruined this country, but it did so during the caucus, not now.

110, I thought you didn't like girls.

What does this have to do with PA results coming out today?

99: Actually, it was not the "lifestyle" but rather, men (in conjunction with, perhaps, promiscuity). Homosexual woman didn't have much to do with the spread of AIDS; so why not just get rid of men?

And hooray for 103, who I doubt is, like me, a member of the elect, and thus lacks the intellectual capacity to understand that the willy-nilly abandoning of established legal definitions has dire consequences. Taken to its logical conclusion, the State of Iowa now has no basis to prevent polygamy or marriage between an adult male and a boy--actually read the opinion, it's positively Blackmunian in it's obtuseness.

And kid, frequenting truck stop glory holes does not constitute waking up every morning and fighting for gay rights--whatever that amorphous term might mean.

99: Actually, it was not the "lifestyle" but rather, men (in conjunction with, perhaps, promiscuity). Homosexual woman didn't have much to do with the spread of AIDS; so why not just get rid of men?

What a great way to streamline the U.S. government: Combine the judiciary with the legislature!! Separation of power was a stupid idea, anyway

Newsflash: it's not judicial activism every time judges make a ruling. They're judges, that's what they do. This was a UNANIMOUS state supreme court decision, based on the clear language of the state constitution. Iowans are free to amend their constitution if they so desire, and it is very likely there will be attempts to do so. But when a document says all people must be treated equally under the law, the only "activist" ruling would be to ignore the plain language of the document. The people of Iowa a free to add an asterisk to that equality if they so desire; thankfully, nine robed Iowans didn't do their dirty work for them.

I also amazes me that conservatives do not understand the concept of constitutional democracies. Judges interpret the constitution, which restricts the rights of the majority and protects the rights of individuals (and minorities).

You're welcome.

-- 110, lawyer gay

The snide comment on Iowa ("this is still Iowa we're talking about right?") was unnecessary/trite. Iowa was one of the first states to abolish slavery, Iowa University was the first public university to admit women, Iowa was the first state to admit women to the bar...

Iowa has been a politically progressive state throughout its entire history, frequently making strides on civil rights before the supposedly enlightened states on the coasts. Hopefully now people will finally stop ignoring that fact.

107, you want to back any of that up with some empirical evidence regarding the negative effects of polygamy? Group marriage?

Agree with other posters, government just needs to get out of the marriage game altogether. The word itself is too loaded, and people don't have the capacity to handle it. Civil unions for all, and do whatever extra you want outside of that.

What next, polygamous marriages? Bisexual bigamous marriages? Gay incestuous marriages?

I especially like the puerile 'wrong side of history' assbabble from soi disant progressives blind to the fact that social mores successfully conserved don't lend themselves to an arresting narrative. When the Supreme Court upheld the constitutionality of a ban on polygamy in Reynolds v. U.S., no one marched in the streets and waxed profound about how the status quo was on "the right side of history." Because maintaining the status quo just isn't as striking as changing it. A status quo was "right" before continues to be "right" without much fanfare. Progressive "change" on the other hand is trumpeted to the max, because it is a rare event against the ubiquitous backdrop that is the conserved status quo. It's a form of selection bias.

So if you think you're on the right side of history, think again. What you really are is a douchebag.

Anyway remember how back in the day gays were claiming that all they wanted were civil unions and no more? Well now they are clamoring for more, they want and crave social validation, negative externalities be damned. Classic douche behavior: give them a yard and they want a furlong!

So: 27 states currently have constitutional prohibitions against gay marriage. That's 23 to go. The catamites must not prevail.

: )

118, I'm almost positive that you do not want to read equal treatment so literally. Is it unequal treatment to prevent a man from marrying a 14 year old girl? What about affirmative action, that's not exactly equal either? Also just becuase something is unanimous doesn't mean it was the right decision. This is a lagislative decision and should be dealt with as such.

To cont -- it's kind of ironic, because conservatives are all in favor in judges interpreting the constitution to find a right to bear arms (which, is less than obvious despite their protestations). Yet, when judges interpret the constitution interpret the constitution to find a right to gay marry, they pretend there is no such thing as a constitutional limitation on democracy.

-- 110, lawyer gay

43: So infertile people shouldn't be allowed to get married? Post-menopausal women shouldn't be allowed to get married? Straight couples who don't want children shouldn't be allowed to get married?

Yeah, right.

43: So infertile people shouldn't be allowed to get married? Post-menopausal women shouldn't be allowed to get married? Straight couples who don't want children shouldn't be allowed to get married?

Yeah, right.

Ultimately, constitutions may be changed by democratic, majoritarian consensus. See Article V, and the amendment provisions of the various state constitutions. Hence Prop. 8.

Why do gaylords hate democracy?

121 - I assume you meant 106. I agree with you - I probably should not have said "all" of the other bans. Personally, I have no problem with polygamy as long as they are consenting adults and you don't run into problems with the kids like we have recently seen in what I am sure are the horrible exceptions to the rule. Although I can imagine thin public policy reasons against it do to considerations involving property rights, parental rights, inheritance, etc., I see no reason why the law (though unequipped to deal now) could not evolve to accomodate these problems.

I think 36 confused Iowa and Missouri.

You guys are all missing the single greatest argument against gay marriage. IT. IS. FUCKING. DISGUSTING.

128 here - before all of you grammar crackheads freak out - I clearly meant "due to." Thanks.

130 - I feel very sorry for you. And your parents. And your children. And your dog. And your crabs. And your proctologist.

130 - I feel very sorry for you. And your parents. And your children. And your dog. And your crabs. And your proctologist.

106-

really? So exactly what are those "important public policy considerations" justifying, e.g., bans on polygamy and incest? If (as you seem to think) having a sexual proclivity towards someone/something gives you an inalienable right to marry him/her/it, it surely needs to be an extremely compelling governmental interest to prevent it. If 5 men and 5 women all want to marry each other, or close relatives wish to get married (and assume further that they will not have children), how exactly do you propose to limit this without employing the same "bigotry" that you ascribe to conservatives?

Yes, I am a lawyer and have enough common sense to recognize that whatever else it was intended to accomplish, the Establishment Clause did not proscribe traditional marriage as the "establishment of religion" unless that clause has magically spawned a new meaning that no one ever foresaw or consented to in the intervening years. A misguided person such as yourself could conceivably devise a constitutional regime wherein recognizing marriage as it has been understood for most of the history of civilization = establishing a religion, but fortunately, that is not the Constitution we Americans devised and consented to.

4/72

123: As far as I know, dudes who want to marry 14-year-olds are not a suspect or even an otherwise identifiable class or group.

122: If the previously religious institution of marriage had not been conflated (improperly) into the state via the state's issuance of marriage licenses, if we had always had civil unions for all, and churches performing religious marriages as they chose, this would not be a problem. Unfortunately, since a contrary decision was made (not so long ago as you might think), and since conservatives obtusely refuse to say states may only sanction civil unions for heterosexual couples, and since conservatives refuse to decouple the previously-solely religious word 'marriage' from day-to-day state actions, it is no longer a purely religious term, it has become a secular term of exclusion, and so this is where we are. If, 100 years from now, decisons like this one lead to state-sanctioned polygamy (which I hope they do not), it will be because the 'people' have also come to moral decision to allow it. Life and morality evolves. (For example, we no longer think it's perfectly acceptable to torture a bear in a public square, or to kill people for stealing horses.) But there are very good arguments why this will never be extended to polygamy. In any case, every decision we make in life, both individually and as a state, is a decision about where to stand on a slippery slope. Suck it up and deal.

118

Sure Elie sucks as editor. Sure most folks don't care about his liberal agenda and how he awkwardly mixes it into his blogging. Those objective facts don't take away from the Iowa Supreme Court's awesome 69 page (yes, 69) decision.

Reading some of the comments, I fear that some folks are blindly turning their anti-Elie rage into anti-marriage equality just to lash out. Channel your legitimate anti-Elie rage to where it belongs. There's no need to take it out on the gays. They aren't responsible for Elie. *We* voted for him, not Lat.

Fight the real enemy!

Err 125, the infertile objection doesn't work, because any such law would be unworkable. Forced fertility tests would be invasive and likely violate the 4th and 14th Amendments, not to mention possibly breach doctor-patient privilege. It is costly, burdensome, unconstitutional, and impractical. Plenty of good reasons why limiting marriage to demonstrably fertile couples would be unenforceable. The state justifiably and accordingly uses heterosexual couplehood as a proxy for fertility.

By contrast, no such problem arises with gays. We already know that they can't have children together by biological default. In which case, why should the state subsidize their marriages which are sub-optimal in that regard? Remember, even Loving v. Virginia, so often cited favorably by gay marriage proponents, links marriage to procreation (it in turn cites Skinner v. Oklahoma for the proposition that marriage, because linked to procreation, is fundamental to the survival of the human race).

Anyone who takes precedent seriously ought to say no to gay marriage. Judicial activists need not apply.

42: Given that your cow is not a person, nor a resident, nor a citizen of iowa; it is not entitled to equal protection under law, including those laws governing marriage.

Proud to be from Iowa!!! Go Hawks!!!

42: Given that your cow is not a person, nor a resident, nor a citizen of iowa; it is not entitled to equal protection under the law, including those laws governing marriage.

Proud to be from Iowa!!! Go Hawks!!!

134 - I already responded to the polygamy question, and you answered your own question about incest. I did not ascribe any "bigotry" to conservatives - I simply said that the bigotry you ascribed to others for believing other bans were ok was not justified. I do not believe that all people who are against gay marriage are bigots. They may have perfectly justifiable (to them) religious reasons, and that is their right. The government, on the other hand, may not impose those beliefs by denying government rights or privileges on the sole basis of religion.

I may be misguided, but I think it is you who misunderstood me. Maybe I wasn't clear. I did not say that recognizing marriage equals establishing a religion. However, doesn't denying the right to marry because of religious beliefs create an entanglement problem?

Thank God!

1) Elie, ignore haters, this is a timely legal issue and you did not rant.

2) Many of the comments on this post are cool, but some just smack of ignorance on the larger issue of gay rights in the legal arena. For example, someone mentioned that the government should get out of the business of marriage. Are you kidding me? Go read one of the thousands of law review articles discussing the various rights and duties that connect directly to marriage.

3) The whole "more people" "not more people" can marry debate is ridiculous. It is a fact that in principle and in effect more people can now marry. The only argument supporting the idea that more people can marry would have to be premised on the fact that gay people can marry a person of the opposite sex. This is false. Gay people, by definition, do not marry people of the opposite sex. Some bisexuals do. Some closet cases do in what is called "sham" marriages (see Senator Craig, former Evangelical leader Haggerdy, etc.). But to be "gay" is a lifestyle choice of being out., Sure, Senator craig is at least bisexual and perhaps homosexual, but he is not gay. You are born homosexual or heterosexual or bisexual. You choose to be "gay" as a lifestyle matter. I know most of us gays don't often let you straights in on this littlle secret, because for political purposes our rally cry is that it's not a choice, it to an extent is. We just don't want to confuse you. In short, homosexuality is not a choice. Being gay and engaging in that lifestyle is. More people can now marry in Iowa because gay people, who by definition cannot marry someone of the opposite gender, can now marry someone of the same gender.

4) The argument about "rational basis" to differentiate is simply a hate analysis and farce. You mean "rational basis to discriminate." The idea that simply because two men or two women cannot make a baby as a justification for discrimination is absurd. Heterosexual old couples who cannot have children themselves are allowed to marry. Young heterosexual barren women are allowed to marry. Why should gays be different? Besides, artificial insemination is increasingly popular and adoption happens already. Gays have kids of their own and ones they adopt. Do not use biology to discriminate unless you're going to make an argument that accounts for the countless marriages that are allowed where reproduction is not possible.

5) Opponents of gay marriage are on the wrong side of history. A brief review of history will tell you this. The "gay" movement has all the hallmarks of a civil rights movement whether you look in US history of world history. Denial of rights, organization to change the law, followed by small advances and then small setbacks, slow movement forward and then ultimate success. State after state will begin granting more and more marriage rights, just as other countries (even Spain, which is heavily Catholic) continue making it a national right.

6) for the record, a civil union is not equivalent to marriage. Even if it has all the same rights, the denial of the term marriage is discrimination and hate. Would you tell an interracial couple that they can have a civil union, complete with all the perks, but not the term marriage? Hell to the no. The same is true here, so don't start a civil union should be a good substitute argument.

7) As one comedian said, I support gay marriage because i want gays to have the same chance at being miserable as us straights enjoy.
:-)

122:

What "negative externalities" are you referring to? Also, how many of your negative externalities would survive in a hypothetical society where people paid no more attention to homosexual relationships than to heterosexual ones?

135 is incoherent and obviously sucking it up the nose and dealing on the side. 122 didn't say anything about religion. You're teabagged and owned.

As for 134. public policy considerations could include a legislative determination that children generally fare worse, or non-optimally, in polygamous families. So the state declines to encourage such arrangements by way of subsidizing them (which is essentially what marriage and marital subsidies do). This entails the non-recognition of polygamous marriage. Such a proffered rationale would easily pass rational basis review.

Ach ja or Nicht Nicht?

Comments about marrying a child or a cow ignore the fact that marriage involves a contract, and neither a child nor a cow has the legal ability to execute a contract.

This blog has become utterly intolerable (maybe it always was, I never frequented it during my law school days and had generally avoided it until the events of the last year drove me to turn to it for news relating to firm layoffs).

What it has devolved into is a sounding board for run-of-the-mill, dime-a-dozen, white, upper middle class frat-boys (or even worse, greek system rejects) turned law students to compete in an endless battle to be either more vulgar or more mysoginistically "witty" than the rest of their ass-clown peers.

The problem, aside from the obvious raging ass-clown issue, is that when it comes to actual substantive, real-world issues, the people leaving posts (i) are primarily law students, and thus don't know jack about anything (aside from how to be an ass-clown), and (ii) aren't particularly funny or insightful.

A sample post, which I think sums up this place:

"First! Suck it! Who the f*ck cares about [insert name of state or law firm other than New York or a V10 firm]. I would rather be [insert reference to death via some sort of violent sexual invasion] than [live/work] [in/at] [repeat reference to state or law firm other than New York or a V10 firm]! [Somehow integrate use of "TTT" and end with a petty insult aimed at another poster]. "

Now, I know all this seems harsh, but I say this as a guy who used to be in a frat at a snooty undergrad school just like the ones you all attended, and went on to do quite well at an elite lawschool just like the ones you all attend now. In fact, I currently have a swank biglaw job, and even so I didn't emerge as a total ass-clown. So, there is hope for you all.

137:

So... if the goal is procreation, please demonstrate how *preventing* marriage between infertile couples *furthers* making babies. I fail to see the correlation.

Iowa? IOWA? Are you fucking kidding me?

You are all idiots.

137:

So... if the goal is procreation, please demonstrate how *preventing* marriage between infertile couples *furthers* making babies. I fail to see the correlation.

"Go read one of the thousands of law review articles discussing the various rights and duties that connect directly to marriage." - posted by 141

I believe post 76 already addressed this concern of yours. The rights and duties of marriage should be abolished along with the government's business in controlling who is considered married.

137:

So... if the goal is procreation, please demonstrate how *preventing* marriage between infertile couples *furthers* making babies. I fail to see the correlation.

138, I agree that the marrying a cow argument is ridiculous. But you should notice that the way the court went about amending the law, the right to marry is not limited to Iowa residence or citizens. Anyone can come in from a neighboring state and get married in Iowa. I think that they should raise the price of obtaining a marriage license. The gays coming in from neighboring states will pay it and Iowa will get a ton of revenue.

Negative externalities like the state subsidizing gay marriages that are mostly barren. Since most gays simply don't have children by biological default, extending the fiscal benefits of marriage to such unions is a priori an inefficient use of limited state resources. Negative externalities like gay parenting being sub-optimal for children, should gays choose to have children whether by surrogacy or some other method. Negative externalities like expanding the scope of marriage to include polygamous, bisexual bigamous, and other non-traditional, sub-optimal forms of "marriage" because the same judicial logic used to compel gay marriage would likewise apply in an equal protection challenge by polygamists, bisexuals, etc. Once that happens, anyone can get married in any configuration, and marriage loses all significance as a public policy tool meant to encourage the type of family unit the legislature deems best suited and optimal for child-rearing. The incentives that attach to optimal one-man-one-woman marriage are no longer incentives because they apply equally to any permutation of non-optimal "marriages." Legal privileges like spousal privilege lose their meaning. Criminal conspiracies could game the system by simply getting polysexually and polygamously married: instant layer of protection from compelled testimony by invoking privilege.

There are probably more externalities I haven't thought of. The precautionary principle counsels against gay marriage, and most crucially, the judicial imposition of gay marriage. Judges are not best placed to weigh the policy wisdom, costs, externalities and/or benefits of gay marriage. Those are best determined by the political branches, not an overreaching bench.

141 -

The government getting out of the business of marriage would include amending all those rights you say are linked to marriage to attach those rights to civil unions. Also, I never said anything about civil unions being a good "substitute" for marriage.

I would absolutely love for the state to be able to tell an interracial couple that they could have a civil union that entails all the legal results that used to be tied to marriage.

I would also love to tell the white, middle-class, heterosexual couple the same thing.

121

From Iowa.

Iowa Law.

Put up with all sorts of "drive your tractor to work" bullshit from a bunch of trust fund prissies from Yale. Not so much these days.

Proud to be a Hawkeye representing out East.

146. 146. 146.

151, it does so by extending marital benefits only to heterosexual unions, which tend to yield children, and are thus "incentivized" relative to other forms of social union, which may be sub-optimal. If marital benefits apply to any permutation of "marriage" -- polygamous, incestuous, gay, or otherwise -- then the state would no longer be able to encourage the type of optimal marriages it wants to encourage, since the incentives once reserved for heterosexual monogamous marriage are no longer unique to it and ubiquitously available for other forms of marriage. Marriage as a policy tool is blunted as a consequence. Resources are also diverted to low-yielding or barren gay marriages, which in turn drains the pool of resources that could go towards marriages that do yield children. QED.

I support gay marriage for one reason and one reason only, and that is I would like for the homos to shut the hell up about it.

4 / 72 / 134: You put Elie to shame. On a legal blog, everyone should salute one of the few cogent arguments presented in these comments, whether or not they agree with you. Heaven knows there are enough really, really faulty ones.

140 : My outside observation is that you missed the point of 134's comments. There is no "entanglement" problem with someone basing their vote on an issue on their religious (or social, or moral, or philosophical, etc. etc.) beliefs. Isn't that how democracy works? And yes, many people are opposed to same sex marriage for non-religious beliefs. But in the end it doesn't matter.

154, you would not need to amend all of those rights you would just write into the legislation creating the universal civil union that all of the rights/privileges formerly granted by marriage will be conferred by civil unions. The main point still being that the use of the term "marriage" to a state conferred status creates problems. At the core we are really talking about semantics. This debate ends if we solve the linguistic problem. Homosexuals want the same rights as everyone else, they would get them. Opponents do not want gays to use the term "marriage", they won't, and neither will anyone else. I just don't see how trying to change each states law, one supreme court at a time, is a better solution.

"Criminal conspiracies could game the system by simply getting polysexually and polygamously married: instant layer of protection from compelled testimony by invoking privilege."

LOL
This is some excellent logic.

157 - before commenting on the legal basis for this decision, you should have at least read the opinion. Which you obviously did not.

The issue is whether the state interest (promoting procreation) is substantially related to the means (excluding gay marriage.) since gay people are not going to procreate either way, the state interest is not furthered at all by excluding gay marriage.

Ps - adding "QED" to the end of your statement does not make your faulty legal analysis any more accurate.

154:
Fair enough. But perhaps I didn't explain myself as well as I could have, so let me try again and see where this gets us. My comment was meant to, vaguely, show how much legal work is done around the institution of marriage. More importantly (and unfortunately I failed to explicitly state it), the existence of society as we know it would look fundamentally different. For example, suppose there is no marriage/union and two people separate. The wife who would have been entitled to 50% of the property and alimony (assuming she didn't cheat) is now left destitute. While this could be cured with a prenup, let's get realistic. Most people don't know the law, know lawyers, or sign prenups. It's entirely fair for you to say that marriage/unions shouldn't exist, but I simply want use to ask ourselves whether we want to live in a society like that. Also, spouses often get hospital visitation rights, what happens if my husband/wife gets hospitalized? Am I next of kin if a power of attorney hasn't been filled out? What about in instances of death. Do I inherit my spouse's property as next of kin (if a contract does not exist) or does it go to his/her family?

My point: The world would look very different. This isn't necessarily a bad thing, though I am arguing it is. You can disagree, but please tell us first how we'd begin to "undo" all of this since people have relied on this right up until now and then tell us why you believe the alternative world, that I've only briefly described, would be preferable to the one we have now in regards to marriage/unions.

Kind regards,
141

Homos would be cool if they weren't so gay about being homosexual.

161,

It's iron-clad logic pal. I know some people are probably thinking slippery slope fallacy blah blah, but they would be incorrect. See, e.g., Eugene Volokh on judicial "small change tolerance" slippery slopes and the extension of precedent in "The Mechanisms of the Slippery Slope," 116 Harv. L. Rev. 1026 (2003); and "In Defense of the Slippery Slope," Legal Affairs (2003) (observing that "slippery slopes [are] most applicable to judicial decisions, where judges are supposed to follow precedent and one decision is legally supposed to lead to others.").

Another reason why judicially imposed gay marriage is douchebaggery of the highest order. A legislature can draw the line where it pleases. Judicial logic, however, is compelled to follow the import of its own reasoning to sometimes undesirable endpoints. Poor reasoning that ill-accords with precedent in one case can severely warp settled jurisprudence in an area of law, contributing to the general incoherence. Ultimately, it distorts the rule of law.

Moral of the story: say no to gay marriage.

153, 157:

So, if I understand correctly, the central argument is that marriage exists to subsidize procreation / rearing of children?

1) I don't see why marriages of people who have been determined categorically infertile shouldn't therefore be invalidated based on that infertility. (Implemenation: affirmative duty of health-care providers to report infertility upon discovery.)

2) Banning a class of persons from marriage rights often simultaneously prevents those persons from adoption of children otherwise cared for by the state. This seems to be a net economic drain on the system alleviated if otherwise qualified adults could provide these children with a loving, supportive home.

3) I believe most gay couples that do currently have children are lesbian relationships. Because these women are rearing children, shouldn't they receive the same tax advantages (beyond just per child credits) as offered to the rest of the community? Why shouldn't this apply to gay men who raise children (theirs or adopted)?

I respectfully disagree with your central premise about the purpose of marriage. I believe that marriage evolved over the span of human existence as individuals' desire to mutually ingrain each other in each other's lives. My understanding is that the state recognizes this impetus, and also the economic benefits resulting from an emotionally fulfilled populace (assuming marriage as an idealized social state), and offered resulting benefits accordingly.

161,

It's iron-clad logic pal. I know some people are probably thinking slippery slope fallacy blah blah, but they would be incorrect. See, e.g., Eugene Volokh on judicial "small change tolerance" slippery slopes and the extension of precedent in "The Mechanisms of the Slippery Slope," 116 Harv. L. Rev. 1026 (2003); and "In Defense of the Slippery Slope," Legal Affairs (2003) (observing that "slippery slopes [are] most applicable to judicial decisions, where judges are supposed to follow precedent and one decision is legally supposed to lead to others.").

Another reason why judicially imposed gay marriage is douchebaggery of the highest order. A legislature can draw the line where it pleases. Judicial logic, however, is compelled to follow the import of its own reasoning to sometimes undesirable endpoints. Poor reasoning that ill-accords with precedent in one case can severely warp settled jurisprudence in an area of law, contributing to its general incoherence. Ultimately, it distorts the rule of law.

Moral of the story: say no to gay marriage.

Negative externalities like expanding the scope of marriage to include polygamous, bisexual bigamous, and other non-traditional, sub-optimal forms of "marriage" because the same judicial logic used to compel gay marriage would likewise apply in an equal protection challenge by polygamists, bisexuals, etc
************************************************

That's just some bad reasoning. The government has no compeliing reason to prevent one homsexual adult from marrying another.
Not so for polygamists, as the legal ramifications of marriage would become impossible to untangle with multiple marriages. (I think thst called a "rational basis."). The same is true for anything more than one marriage at a time.

Negative externalities like expanding the scope of marriage to include polygamous, bisexual bigamous, and other non-traditional, sub-optimal forms of "marriage" because the same judicial logic used to compel gay marriage would likewise apply in an equal protection challenge by polygamists, bisexuals, etc
************************************************

That's just some bad reasoning. The government has no compelliing reason to prevent one homosexual adult from marrying another.
Not so for polygamists, as the legal ramifications of marriage would become impossible to untangle with multiple marriages. (I think thst called a "rational basis."). The same is true for anything more than one marriage at a time.

Ok - if you guys think some of these comments are hateful and wrong - take a gander at the user comments at the Des Moines Register website (it's a newspaper in Iowa, made from corn and hogs, or whatever joke you want to insert here). Anyways, it's pretty harsh. The yokel -religious types in Iowa are pissed!

I'm really proud of the Iowa courts for getting this one right. But what is particularly enjoyable about this momentus day is the fact these homophobes in the heartland HAVE to put up with it until, at the earliest, 2012! Keep praying, you silly farmers! Where's your god now? It is my sincerest hope that these bible thumpers wake up in a year or so, realize the universe has not ended and that having married gay couples really isn't so bad.

Ok - if you guys think some of these comments are hateful and wrong - take a gander at the user comments at the Des Moines Register website (it's a newspaper in Iowa, made from corn and hogs, or whatever joke you want to insert here). Anyways, it's pretty harsh. The yokel -religious types in Iowa are pissed!

I'm really proud of the Iowa courts for getting this one right. But what is particularly enjoyable about this momentus day is the fact these homophobes in the heartland HAVE to put up with it until, at the earliest, 2012! Keep praying, you silly farmers! Where's your god now? It is my sincerest hope that these bible thumpers wake up in a year or so, realize the universe has not ended and that having married gay couples really isn't so bad.

165:

That's like logic that says that if we legalize heroin, we'll all become heroin addicts. This is often stated by people who have never tried heroin. And that assumes that drug use is rooted in government sanction, and ignores a number of other factors contributing the drug use.

By analogy, sure, if we legalize marriage to more than one person, there will be instances of people marrying more than one person. But that doesn't mean there's going to be a mad rush to get married due to spousal privilege. #1, because you've supplied and I know of know evidence indicating that spousal privilege is a general impetus for marriage; and #2 marriage to multiple people would be a financial and emotional nightmare whose benefits would likely be considered to pale relative to the financial and emotional toll.

169,

Compelling reason? That's just bad reasoning AND bad law. The proper standard is not strict scrutiny (thereby requiring a "compelling reason") but rational basis review, at least under federal law.

The cocks on the Iowa Supreme Court adopted intermediate scrutiny when interpreting its own (state) equal protection clause, so even there, you'd be wrong.

Please retake your prelaw classes before, thanks.

169,

Compelling reason? That's just bad reasoning AND bad law. The proper standard is not strict scrutiny (thereby requiring a "compelling reason") but rational basis review, at least under federal law.

The cocks on the Iowa Supreme Court adopted intermediate scrutiny when interpreting its own (state) equal protection clause, so even there, you'd be wrong.

Please retake your prelaw classes before further comment, thanks.

172,

No it isn't. Good grief. You completely misconstrue the argument. Please, no more TTT prelaw arguments. I shall no longer respond to arguments I deem retarded.

160 -

Yes, legislation substituting "civil union" for "marriage" in all instances would certainly be a more efficient way to make the transition. I wasn't clear enough when I spoke of "amending the rights," but that seems like a decent-enough solution to me.

141 - I was not at all suggesting we should not have default contractual rights conferred by the state through the use of some sort of union. All those rights that you speak of (hospital visitation, next of kin, etc) would remain for all, in the form of civil unions. When I said the state should get out of the business of "marriage," I was speaking specifically of that term. States should still be involved in the business of licensing civil unions.

Bottom line:

Abolishing state "marriage" law and replacing it with civil unions should satisfy both camps. The state is not distinguishing, even semantically, gay and straight. The "sanctity of marriage," whatever that means, is maintained through whatever independent religious ceremony a couple would want.

Then again, I'll never understand how the religious right justifies its stance by reference to the "sanctity of marriage" - a sanctity that they already willingly turned over to a secular state. Baffling.

121/154

"There is no "entanglement" problem with someone basing their vote on an issue on their religious (or social, or moral, or philosophical, etc. etc.) beliefs. Isn't that how democracy works? And yes, many people are opposed to same sex marriage for non-religious beliefs. But in the end it doesn't matter."

159 - I40 here. I agree with you. My point is that there is an entanglement problem not with people basing their votes on religious beliefs, but with government denying rights based solely on religious reasons. What plausible argument can be made in support of the discrimination as it now stands in most places other than the bible?

166,

1. I've addressed this. Burdensome, impractical, costly, likely unconstitutional, and your reporting mechanism breaches doctor-patient confidentiality, exceptions for which are usually made in cases of a threat to public health. Infertility hardly qualifies as a public health hazard.

2. False. I'm quite sure several states concurrently allow single-parent adoptions (regardless of sexual orientation) while banning gay marriage. Iowa IIRC was one such state.

To be sure, places like FL ban both, but that's a poor economic argument for gay marriage, since it fails to deal with the second prong of my argument: that single-gender parenting is not best situated for raising children. The state therefore has no obligation to encourage sub-optimal unions for that purpose.

In any event, given that most gays don't, in fact, adopt even where they can -- your argument that they present a net financial gain to the state by alleviating the burden on the state's warding function is speculative at best.

3. Because the state does not wish to encourage family arrangements it thinks are sub-optimal. It's the same reason the state does not extend marital benefits to singles with children, or polygamous unions with children -- because they don't want to encourage single-parent families or polygamous families to begin with. By incentivizing deficient or sub-optimal family arrangements, they end up encouraging them, which effectively undercuts the state's policy goals.

Finally, your understanding that the purpose of marriage is to "ingrain each other in each other's lives" (which just sounds like a long winded way of saying "love") is facile. If love were all there is to it, polygamous marriages, bisexual bigamous marriages, gay incestuous marriages, and any possible configuration you can think of would be entitled its own form of marriage. And we've already gone through why that's a hysterically bad idea.

Elie stop the blatant propaganda. In no way does this decision mean "that more people will be allowed to get married." All of the people impacted by this decision were already allowed to get married.

90 -- I TOTALLY agree. It's high time for this to happen. The State has a number of health and societal reasons to want to "encourage" monogamy, fidelity, and families not breaking up. THAT's why the State would sanction "marriage" by providing benefits to married couples. But ours is a secular Government, and religious reasons and justifications should be left to the church. So let's scrap marriage in the public realm and have the State give civil unions. If a religious body then wants to allow for a religiously approved "marriage" in some way, then they can do that on their own, but it won't hold any political significance.

Also, 120-- thanks for enlightening me. As someone who was born and raised in Iowa, I can be a little harsh on the state sometimes. I can say today that I'm proud of all these accomplishments of the state.

175, and, alas, you still respond.

It's not my fault your TTT brain can't wrap its head around basic syllogism.

Criminal conspiracies abound!
If we allow gay marriage people are going to get married so as to gain spousal privilege!
Don't give limited state resources to people who pay into them!

What plausible argument can be made in support of the discrimination against bisexual polygamists as it now stands in most places other than the bible?

170 = bigot

Actually, 173, gays are subject to intermediate scrutiny -- not rational basis. But good try!

I'm pretty sure there are bisexual polygamists IN the bible.

I love that Iowans wrote the Constitution. A Constitution that had to go through all of the obstacles of passage and ratification. And that Constitution puts the legal hierarchy in place. And set up the separation of powers. And yet, when a statute gets overruled, everyone screams democracy has failed.

178 obviously has a lot of authority upon which to state that gay parenting is not optimal. This is why he cites so much.

#130 - "You guys are all missing the single greatest argument against gay marriage. IT. IS. FUCKING. DISGUSTING."

Thank you for being honest. When you boil down all the arguments against gay marriage this idea is at the core of all the arguments.

As a gay man I find hetro sex FUCKING DISGUSTING.

#130 lets call a truce. I won't force you to have gay sex or get gay married as long as you don't block my ability to marry the person I want and don't force me to have hetro sex. Deal?

140

As to your Establishment Clause point, the historical evidence contradicts it. At the time the Clause was written and ratified, marriage rights did not extend to gays (presumably partly because of religious reasons); no one seemed to think that this constituted "excessive entanglement" and presumably the Clause never would have been consented to if it had reached so far. Now, as I say, one could draft a much broader version of the Establishment Clause that would require such laws to be invalidated but that's not the one we have. For you to say that the EC has spontaneously expanded to reach such laws without anyone ever consenting to this de facto amendment of it is to engage in a unilateral re-writing of the Constitution. you may be correct that many courts are willing to do just that, but that doesn't stop it from being completely illegitimate.

I saw nothing in your original post about polygamy and my point about incest still stands: both they and gay marriage have been proscribed precisely because they're held to be contrary to deeply held social norms. I still fail to see exactly what the "important policy considerations" are that justify bans on the first two but not the latter.

I do think that one can make sociological arguments about the deleterious effects of gay marriage (they may not be compelling but the equal protection clause requires only minimal rationality (that is, unless you're going to say that the EPC has magically spawned new provisions, too)). And frankly, I don't think the legislature needs any reason at all to ban gay marriage. As I said before, laws limiting marriage do not deprive anyone of a preexisting liberty; rather, they simply limit the dispersion of a government-created privilege. To anticipate your likely response, I understand that courts have interpreted the Equal Protection Clause to reach laws not necessarily touching on race, but I find such readings to be entirely illegitimate: the clear intent of the EPC was to force states to be held accountable for potentially racially discriminatory practices. If we are to redraft the EPC to contain a more expansive theory of equality to extend to people's various sexual proclivties, that prerogative lies with the people, not judges.

I want to marry my dog. I demand equal rights!

First

(166 here)

178, first, thanks for your response:

Re 1: If the goal is to bar facially infertile couples, and it serves a permissible public policy objective, health care providers could be required to report to the county clerk's office persons who are no longer able to have children. I fail to see why, if this is an overriding public policy concern, it should be less workable than regulations forcing disclosure of gunshot victims or instances of suspected domestic violence. So, hypothetically, if your wife goes in for a hysterectomy, your marriage should be over. Conceptually, even if you find it fiscally unworkable, do you agree? If not, why not?

Re 2 & 3: I'm originally from a state (Utah) where, I believe, homosexuals are not allowed to adopt. Florida, as you mentioned, is another. I do concede that my economic argument is speculative, and based on individual choice. I also point out that homosexual parenting, or adoption, does not necessarily imply a "single-parent" household or relationship, but under the current legal framework, dual mothers or fathers may not be able to exercise any rights over the child in the event of the incapacity of the blood/adopted parent.

I respectfully disagree that two same-sex parents are a "sub-optimal" family unit for purposes of benefitting the child. Regardless, If procreation were truly and completely the purpose of marriage as an institution, rational basis review would absolutely be met by a legislature's decision that heterosexual parenting should be the defining factor.

As I mentioned in my previous post, my understanding of marriage is that it is an institution recognizing individuals' relationships *to each other* and to the greater community as a whole. It is encapsulated by the right of individuals to be free to express their attachment to another person, both to that person, and to their community.

I do concede that you are right in your last paragraph, and has been mentioned by others, that the logical conclusion of expansion of marriage rights is that there is no substantive difference between recognizing marriage between two people or three, or incest. I also understand that many people think of gays with as much vitriol as they would when thinking about incest or plural marriages.

Perhaps, then, the answer lies not in maintaining your subsidy for procreation, and elevating it to a status on high, but to dissolve it entirely under the secular state? Or, if groupings of one person to one person is the goal, with specific restrictions, why NOT label currently defined secular "marriage" as a "civil union" and leave the definition of relationships between people to the parties involved?

I believe the reason why such action is not taken is that "marriage" is more than just a vehicle to subsidize procreation. It is an ingrained social institution, one that shapes behavioral patterns of both marriage participants and those who interact with married persons.

Ironically, in typing through this, I find myself increasingly understanding of why social conservatives feel that expanding the inclusion of gays into this institution alters the foundation of marriage itself, that they view it as a corruption on an established natural order of things. My only response, I suppose, is to try to offer an empathetic appeal: consider existing in a state where, though you feel as strongly about sharing your life with another person, you are denied that opportunity for what you feel is a facially irrelevant characteristic between you and that person.

Isn't Iowa the Cornhole State?

146 is the voice of reason.

192 here. My apologies for the length of my post.

188 = Elie.

190 = Elie.

OMG people, whoever says same-sex parents are sub-optimal or not ideal parents has no familiarity with science. Science, not just US science, but the international community unequivocally stated in the late 90s that LGBT parents are just as effective as straight parents.

For example, this quote is taken from the opinion (despite the 196 comments on this board, I would venture to guess only 5 or so commentors actually read the damn opinion):

Many leading
organizations, including the American Academy of Pediatrics, the American
Psychiatric Association, the American Psychological Association, the National
Association of Social Workers, and the Child Welfare League of America,
weighed the available research and supported the conclusion that gay and
lesbian parents are as effective as heterosexual parents in raising children

Are these authoritative enough for you? Or should we rely on the far-right, Limbaugh, and Coulter to decide what an "optimal" family is?

185 -- Best comment on this thread by far.

But I think all that is in the OT, 185, and haven't you heard that the NT supplanted the OT? I believe that Jesus or Paul or someone like that, after consulting with attorneys, essentially said (or is said, post-Council at Nicea, to have said): "To the extent of any conflict between the provisions of the OT and the NT, the provisions of the NT shall govern."

You see, a lot of people not very familiar with Christian theological history miss this because it's in a tiny footnote on Exhibit ZZZ, which is titled, "We Don't Have Enough Original Material for our Own Stand-Alone Religious Text, but We're Not Going to Go by Everything those Crazy Jews said in the First Half of What We're Calling the Bible, Especially since Jesus has been Dead for Hundreds of Years Now, and We're Only Now Finally Getting Around to Codifying a Standard Text to be the Basis of our Religion."

Look you queer defending morons, will you please explain to me how a man falls in love with another man's hairy ass (to paraphrase the late, great Sam Kinison)? Just answer this with a reasonable explanation and I will welcome queerdom for the masses, but you can't because in order to love licking man ass one needs to have a mental sickness, which is what homosexuals suffer from. Immediate forced psychiatric evaluation is in order for any queers who submit marriage applications.

199=flame(r)

For the record: Elie was 100% correct about more people being able to marry now. As the opinion states (read the opinion people):

"Thus, the right of a gay or lesbian
person under the marriage statute to enter into a civil marriage only with a
person of the opposite sex is no right at all."

Again, "is no right at all."

187, obviously.

"By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws encourage procreation to take place within the socially recognized unit that is _best situated_ for raising children. . . . we cannot conclude that the State's justification lacks a rational relationship to legitimate state interests." Citizens for Equal Protection v. Bruning (8th Cir. 2006) (emphasis added, international quotation marks omitted).

"It is hard to conceive an interest more legitimate and more paramount for the state than promoting an optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society -- particularly when those future citizens are displaced children for whom the state is standing in loco parentis. More importantly for present purposes, the state has a legitimate interest in encouraging this optimal family structure by seeking to place adoptive children in homes that have both a mother and father. . . . Florida's interest . . . is not simply to place children in a permanent home as quickly as possible, but, when placing them, to do so in an optimal home, i.e., one in which there is a heterosexual couple or the potential for one." Lofton v. Sec. of the Dept. of Children and Family Servs. (11th Cir. 2004).

Feel free to cite contrary authority in the federal courts.

192,

1. Because you would have to perform invasive and mandatory fertility tests, otherwise the requirement would be unenforceable as people would simply avoid getting tested. What are you going to do then? Force them? Constantly monitor their fecundity? That would be an impracticable administrative burden, costly, and unworkable. It would also very likely be unconstitutional under current doctrine, whether under the 14th Amendment right to privacy, or the 4th Amendment freedom from "government invasions of . . . the privacies of life."

Under Griswold, a law that "operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation" is presumptively "repulsive to the notions of privacy surrounding the marriage relationship." Indeed, "it is difficult to imagine what is more private or more intimate than a husband and wife's marital relations." If a law barring contraceptives is an unconstitutional intrusion upon the right of marital privacy, then it's difficult to see how a law mandating fertility tests would not, likewise, so intrude.

2. Huh? See my reply to 187.

3. Love is irrelevant. Marriage is best seen as a policy tool, used to encourage certain socially desirable outcomes through the use of efficient incentives. See "An Economic Assessment of Same-Sex Marriage Laws," 29 Harv. J.L. & Pub. Pol’y 949 (2006) (arguing that "marriage is an economically efficient institution, designed and evolved to regulate incentive problems that arise between a man and a woman over the life cycle of procreation.").

I don't think of gays with "vitriol," since I don't think of polygamists or incestuous couples with "vitriol" either. They're just not best situated for certain functions (like raising kids). That's a structural limitation inherent in single-gender unions, and polyamorous unions for that matter. It's nothing personal. Just biological reality. Gays seem to think of gay marriage as an appropriate vehicle for social validation. It isn't. Think of the children. :-(((

lol @ "international" quotation marks. I meant internal.

202 flamer. See my earlier post where the Iowa Supreme Court cites every major medical association that has ever looked at the issue and concluded unequivocally that same sex parents are as effective as opposite sex parents. In fact, most studies find that there is somewhat of a benefit (i.e., they're taught tolerance, Broadway, and arts haha). I think that every major medical association is CONTRARY AUTHORITY. I could care less about federal court authority. This issue is about the truth, not about what truths the federal circuit wants to acknowledge. Cite one peer reviewed and credible article OR one major medical organization (US or world) that says same sex parents are less than ideal.

From the opinion:

"Plaintiffs presented an abundance of evidence and research, confirmed
by our independent research, supporting the proposition that the interests of
children are served equally by same-sex parents and opposite-sex parents.
On the other hand, we acknowledge the existence of reasoned opinions that
dual-gender parenting is the optimal environment for children. These
opinions, while thoughtful and sincere, were largely unsupported by reliable
scientific studies."

-Again, the best bigots have are federal court opinions that are UNSUPPORTED by RELIABLE scientific studies.
-Iowa pwned them!

197, the science is not conclusive, and as long as the science is not conclusive, notwithstanding the positional statements of institutionally liberal organizations like the APA, a plausible risk remains that single-gender parenting is not optimal. That suffices as a rationale to bar gay marriage under rational basis review. See Bruning, cited above.

I note also that pediatrician groups like the American College of Pediatricians have issued positional statements opposing gay parenting. Whatever the merits of the scientific debate, it is far from conclusively settled. The courts seem to agree with that assessment of the current state of research.

Personally, it perplexes me how psychologists can claim that mother and father figures play an integral role in childhood behavioral development, and yet claim otherwise when it comes to single-gender parenting, which definitionally lacks either a mother or a father figure. Maybe some discomfiting research subjects are just verboten.

205, and I can quote the 11th Cir. stating that

"Openly homosexual households represent a very recent phenomenon, and sufficient time has not yet passed to permit any scientific study of how children raised in those households fare as adults. Scientific attempts to study homosexual parenting in general are still in their nascent stages and so far have yielded inconclusive and conflicting results. Thus, it is hardly surprising that the question of the effects of homosexual parenting on childhood development is one on which even experts of good faith reasonably disagree. Given this state of affairs, it is not irrational for the Florida legislature to credit one side of the debate over the other. Nor is it irrational for the legislature to proceed with deliberate caution before placing adoptive children in an alternative, but unproven, family structure that has not yet been conclusively demonstrated to be equivalent to the marital family structure that has established a proven track record spanning centuries."

Your point? All this establishes is that one may "reasonably disagree" on the pertinent research, in which case a plausible risk remains. If you want to cavalierly dismiss that risk, it just shows that you're not serious. Again, it's not all about you. Think of the children. And get over yourself, hopefully. : )

204, cock gobbler. Read nn. 24-26 of Lofton. At a minimum, the cited peer-reviewed research shows that the research is not yet conclusive. In which case I hasten to remind you again, a plausible risk to children remains.

According to at least one professional pediatrics association:

"The research literature on childrearing by homosexual parents is limited. The environment in which children are reared is absolutely critical to their development. Given the current body of research, the American College of Pediatricians believes it is inappropriate, potentially hazardous to children, and dangerously irresponsible to change the age-old prohibition on homosexual parenting, whether by adoption, foster care, or by reproductive manipulation." American College of Pediatricians positional statement.

You're owned. You can either cry about it or you can deal with it. : )

206, wrong. READ the damn opinion. Homosexuals are a "quasi suspect" class at all levels in all courts in this nation.

Law 101:
1) Rational basis review (very deferential to legislature, presumptively valid law, automatically applies unless trumped).
2) Heightened Scrutiny/intermediate scrutiny (presumptive validity of the law, applies to "quasi suspect" classes, such as gender, age, and homosexuals/LGBT.
3) Strict Scrutiny (law presumptively invalid, applies in cases of race, national origin, etc).

The court made it very clear that HEIGHTENED scrutiny applies here. You would know that had you read the case (or your case book during law school).

Finally, the APA being a "liberal" organization? Umm, if by liberal you mean grounded in empirical science and intelligent. Much like ALL leading institutions are decidedly more "liberal" than other institutions. Listen, you sound absolutely ridiculous not taking the very reasoned conclusions of all major medical associations. You say there's conflicting science, but this science isn't peer reviewed and you cite none. Also, you say that the conclusions of these scientific and respected organizations are "policy positions." Dude, you really did pick the right career, you can spin anything. The sad thing is that your trying so hard to rhetorically win (you can't win on the facts) that it's blatantly obvious and kind of sad. Just come out, say you hate LGBT people, and that you are a bigot. I could honestly accept that. I cannot accept your inane spin and baseless rhetoric.
-204, a proud "liberal"

We can be cold
As our falling thermometers in December
If you ask about our weather in July.
And we're so by God stubborn
We could stand touchin' noses
For a week at a time
And never see eye-to-eye.
But what the heck, you're welcome,
Join us at the picnic.
You can eat your fill
Of all the food you bring yourself.
You really ought to give Iowa a try.
Provided you are contrary,

"Homosexuals are a "quasi suspect" class at all levels in all courts in this nation."

209, False. Wilson v. Ake (M.D. Fla. 2005):

"Lawrence did not hold that same-sex couples constitute a suspect or semi-suspect class under an equal protection analysis . . . . Therefore this Court must apply rational basis review to its equal protection analysis of the constitutionality of DOMA."

"As we have explained, Florida's statute burdens no fundamental rights. Moreover, all of our sister circuits that have considered the question have declined to treat homosexuals as a suspect class. Because the present case involves neither a fundamental right nor a suspect class, we review the Florida statute under the rational-basis standard." Lofton (11th Cir. 2004).

"[T]he Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes. The Court’s general standard is that rational-basis review applies ." Citizens for Equal Protection v. Bruning (8th Cir. 2006).

See also Romer v. Evans (finding that, in applying "this conventional inquiry" to a state law targeting homosexuals, "a law [that] neither burdens a fundamental right nor targets a suspect class . . . will [be] uph[e]ld . . . so long as it bears a rational relation to some legitimate end."). That's rational basis review.

See further Lawrence v. Texas ("Under our rational basis standard of review, legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.") (O'Connor, J., concurring).

Homosexuals are clearly not "a quasi suspect class at all levels in all courts in this nation." Not at the Supreme Court, not at two Circuit Courts of Appeals, nor at a district court. You're an ignoramus who needs to retake prelaw 101 before talking to me.

As for the "peer-reviewed science," see footnotes 24-26 of Lofton. Just because you're too lazy to look it up doesn't mean that I "cite none." Now you're owned. Go win a gay pride contest.

170 - most of the commens on the DSM Register site are probably not from Iowans. Anti-gay-marriage groups are out in full force. I read one comment from a guy in California complaining about the decision and offering advice on how to get an amendment passed like in California.

Dubuque, Des
Moines, Davenport, Marshalltown,
Mason City, Keokuk, Ames,
Clear Lake
Ought to give Iowa a try!

"Plaintiffs presented an abundance of evidence and research, confirmed by our independent research, supporting the proposition that the interests of children are served equally by same-sex parents and opposite-sex parents."

-

Yes, I really would have expected the court to come out and say "okay, you caught us, we're just making this up as we go along."

-

"-Again, the best bigots have are federal court opinions that are UNSUPPORTED by RELIABLE scientific studies."

-

. . . or, you know, the law?

You want fairness, justice, and opinions based on scientific research. I'm willing to bet my ideas of fairness, justice and scientific research are somewhat different from yours. The law is what makes us play by the same rules. If you toss out the rules that restrain you, you also toss out the rules that restrain your opponents. Good luck with that.

The best evidence against homosexuality's status as a mental disease is ass licking and the love of a man's chocolate starfish. Will someone please answer 199's question and then you are free to explore the legal ramifications of gay marriage. Polygamy does not inherently involve man ass love.

198: Thanks - I thought it was pretty decent myself. However, your additions put the comment to shame, I'm afraid. Hysterical.

189: I addressed polygamy in an earlier post: "I agree with you - I probably should not have said "all" of the other bans. Personally, I have no problem with polygamy as long as they are consenting adults and you don't run into problems with the kids like we have recently seen in what I am sure are the horrible exceptions to the rule. Although I can imagine thin public policy reasons against it do to considerations involving property rights, parental rights, inheritance, etc., I see no reason why the law (though unequipped to deal now) could not evolve to accomodate these problems."

As for incest, you made your own point when you were forced to qualify by assuming they would not have children.

As for the Establishment Clause, I am apparently not expressing my point clearly. Regardless of whether you think the EC should have anything to do with this debate, it is not "illigitimate" to suggest that personal religious views should have nothing to do with which citizens are afforded rights by the state.

Finally, in my opinion, your comment that the Equal Protection Clause should only be interpreted to apply to race does not even merit a response.

Don't bother calling me an idiot - I'll save you the time: 216: you are a total moron and should have your legal license revoked for spending all of this time debating with those you know will keep their minds closed when you could have been billing hours. You should know better. I hope you have to spend your weekend in the office making up for it. Epic Fail.

216-

You were the one who raised the EC issue but if we set it aside, then I think my point is even stronger: why is it legitimate to suggest that religious views should play no role in public debate? Why are views that are informed by the philosophy of Jesus somehow less legitimate than views informed by the philosophy of [fill in whatever thinker/philosopher here?]. Like it or not, religion has played a huge role in informing social understandings of what a just and decent society should look like. You don't have to agree with them, but I fail to see why it's an illegitimate basis for democratic decisionmaking in the marketplace of ideas.

I'm going to assume that your refusal to respond to my EPC point is an implicit recognition that it indeed makes a multitude of sense. In fact, I fail to see much support for the contrary position. Those who consented to the EPC believed that it would effectively forbid discrimination on the basis of race by states. They surely did not believe they were effectuating a mandate that states in essence recognize a right to marry someone/something based on one's sexual proclivity to do so; the amendment surely never would have been ratified if it did. So my point is that if you're proposing that the EPC should apply outside of the race context, the burden should be on you to explain exactly why. Did the EPC spontaneously expand its own reach without anyone ever consenting to it? It's an interesting philosophical issue as to whether having a sexual proclivity towards something or someone gives rise to an obligation on the part of the state to extend marriage rights to you, but it's certainly not one that Americans ever agreed to enshrine in our Constitution. If you're going to contend that a few unelected lawyers can- on the basis of their own ideology- unilaterally spawn such new rights, the burden should be on you to explain how and why this is legitimate under any conception of democracy. And furthermore, what is the stopping point? Does a court have the power to create any and every such "right" that the individual judge believes is "just" in a modern society or is it limited to only those brand-new "rights" that happen to accord with your own ideology?

-189

Stop effin discussing law, people... equal protection this, rational basis that... blah blah blah.
There is only ONE thing to focus on and that is providing an explanation as to how a man can fall in love with another man's hairy ass. They can't, unless they are mentally ill, which is the condition suffered by queers. Immediate psychiatric treatment for all those afflicted. Now STFU with your legal theories people.

if two men were suppose to be having children one of the men would be capable of getting pregnant. But after all that where can Iget a license, my widowed Grand dad has a fine looking BUTT

Scalia's most adhesive critiques of the legal reasoning applied in these various "pro-gay" cases are embodied in his polygamy and incest examples (his other examples are readily distinguishable), where the law has seemingly endorsed the moral condemnation of polygamy and incest, yet the same condemnation of homosexual sodomy is allegedly irrational due to its bare desire to harm an unpopular group (see Lawrence v. Texas and is confusing application of rational basis review). Although I believe the underlying motivation behind the historical criminalization of polygamy and incest can ultimately be reduced to moral disgust, I would argue, moving forward, that they are perhaps distinguishable due to various public policy considerations.

1) Polygamy - beyond the administrative indeterminacy (of where to place an upper limit to the number of spouses one is allowed to acquire) and infeasibility (of re-structuring the tax system to accommodate such complexities) involved, there is a strong argument that polygamy represents a form of institutionalizing the subordination of women.

2) Incest - this one is actually tougher because there are some cultural sub-groups that have a higher incidence of birth defects than the rate associated with incest, yet we do not proscribe procreation in these subgroups. One solution would be to just let family members get married if they want to, subject to certain reasonably calculated limits (e.g. not between parent and child given the strong psychological evidence that even entertaining the possibility of such a relationship leads to severe social-emotional maladjustment).

P.S. Although I think criticizing judicial activism is totally fair game, my sense is that many people on this board use it as a intellectual veil to hide their emotional disgust for anal sex and thus their disgust for gay marriage.

"Look you queer defending morons, will you please explain to me how a man falls in love with another man's hairy ass (to paraphrase the late, great Sam Kinison)? Just answer this with a reasonable explanation and I will welcome queerdom for the masses, but you can't because in order to love licking man ass one needs to have a mental sickness, which is what homosexuals suffer from. Immediate forced psychiatric evaluation is in order for any queers who submit marriage applications."

Well, why don't you explain how a man could possibly fall in love with the hairy pussy -- you know, vagina, vulva, wetness coming from who knows where. Explain that and I will explain the mysteries of the hairy ass.

-- Laywer gay

For those of you who support gay "marriage," it is you degenerates who "know-nothing." There is absolutely no legal, constitutional, secular, religious or psychological reason for perverting the comcept of marriage, which from the earliest of times has been exclusively between a man and a woman. Homosexuals and their supporters have plucked a completely ficticious and nonsensical concept out of thin air, breathed political soul into it and pushed it onto society.

Same-sex "marriage has absolutely nothing to do with human rights, equal rights, civial rights or even gay rights. It is about legitimizing the lifestyle of a special interest group. And, I might add, a group that hates the will of the people whenever they vote against the same-sex unions, therefore you throw democracy aside and go through your activist friends in the courts to impose your selfish, perverse will on the people. I hope that California upholds Proposition 8 and starts a renewed effort to save America from this tiny minoirty group of sexual degenerates. Better still, why not have you gay "pride" parade in Saudi Ararbia or Iran? Then you will know what "intolerance" really is all about.

This has to be the most specious line of argument of this whole gay rights affair -- the contention that introducing gay marriage WILL NOT also eventually open the door to polygamous marriage.

Once you make marriage about "love" and "commitment" between consenting adults and not about an institution to help with the raising of children, then you open the door to all consenting adults that "love" each other, not just homosexual couples.

One of the reasons the same people who argue so ardently for gay marriage are so dismissive of polygamy is because of the stereotype associated with polygamist unions. Most see them as a type of marriage observed by backwards, hickish, fundamentalist religions with a big boss guy and a bunch of little starlets popping out kids. But, I'm taking a much broader view of polygamy.

What if, for example, three gay people, three guys say, all wanted to marry. Under what argument could you deny them? They're all in "love" theoretically, committed, and consenting. What about a woman and a man and the gay lover the woman decided to take on after ten years of marriage? Maybe they all have threesomes, they all love each other, and they all want to be married. Why not them?

Why not a brother and sister who agreed to be surgically sterilized? The BBC did an entire piece (look for it on youtube) about brothers and sisters who are separated by adoption when they are young. Upon reuniting, many of them translate their love for each other into a sexual relationship in a well documented psychological phenomenon. Why not them? Why not a mother and son, or a mother and daughter, etc.?

Why not broaden it? Why can't groups of people get married? Maybe someone has a cult, and all of the people in that cult want to be married to each other. If they're all consenting, why not?

See, the arguments against polygamist marriage are pretty thin if you look at marriage as nothing more than a commitment between loving adults. I can't see a reason. Of all of the websites (yours and at least 20 others) I've searched for a valid, legal distinction that makes sense to me, I haven't been able to find any. Most of the arguments against extending gay rights to polygamy have been, as I say, based off religious bigotry. It's more "acceptable" to be pro-gay than pro-fundamentalist in our society. But, the dichotomy flies in the face of reason.

If you decide to extend the definition of marriage, I really feel you have to include everyone under the big tent.