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Go Home Richard Just On The Gay Marriage Ruling

THE PLANK MAY 16, 2008

Richard Just On The Gay Marriage Ruling

Many are celebrating yesterday's decision by the California Supreme Court to legalize gay marriage in the state; others are bracing for a referendum battle; and some, cooped up in campaign offices, are trying to figure out how best to play it. So, in an effort to see the ruling from as many perspectives as possible, we've enlisted a few friends of the magazine to offer their thoughts. Here's Richard Just, deputy editor of The New Republic. 

I have to respectfully disagree with my colleague Jeff Rosen's take on the California gay marriage decision. First, his comparison of the California decision to Dred Scott strikes me as exactly backwards. Jeff seems to imply that the problem with Dred Scott was that it took a stand on a politically controversial question. But the problem wasn't that it took a stand; the problem was that it took the wrong stand. Dred Scott enshrined into law a political consensus that the country--not to mention history as a whole--was rapidly moving away from. (By the time Dred Scott was decided, in 1857, much of Europe had already abolished slavery.) The California decision, by contrast, enshrines into law a political consensus that history, the country, and especially liberal states like California are rapidly moving towards. (Everyone who has ever looked at an opinion poll on gay issues that disaggregates the numbers by age understands that this is the case.) That's a pretty key difference.

At worst, the California court is guilty of overanticipating that consensus--of forcing the public to a consensus before it is ready. The risk of doing this is that, by enraging those who believe that they have been denied their day at the ballot box by an imperial judiciary, the Court could end up sabotaging (as opposed to solidifying) the emerging public consensus. But I doubt it. For one thing, California's gay marriage opponents have hardly been denied their day at the ballot box, since state legislators have twice passed bills legalizing gay marriage--and those legislators are directly accountable to voters. For another, California's November ballot will likely offer gay marriage opponents a chance to overturn the court's decision. If gay marriage holds up, no one is going to be able to argue that the public or their elected representatives were denied the chance to weigh in.

What's more, as EJ Graff predicted in a wonderful piece she wrote for TNR around the time that Massachusetts gay couples began marrying, state court decisions that permit gay marriage are unlikely to spark a backlash within those states; in fact, they are likely to do the opposite--they are likely to solidify the consensus in favor of gay marriage. That's because gay marriage is much more threatening in theory than in practice. Conservative arguments against gay marriage all rest on dire predictions about how it will tear apart the country's social fabric. Once gay marriage is a reality and those predictions don't come true, the arguments against gay marriage start to look silly at best, cruel at worst. EJ's predictions were vindicated in Massachusetts. In February 2004, according to The Boston Globe, a majority of residents (53 percent) opposed gay marriage; by March 2005, just ten months after gay marriages began taking place, a majority (56 percent) supported them. Why did so many people change their minds once gay marriage was a reality? I'm guessing many of them went through the same evolution as the Massachusetts legislator who explained why he switched sides on the issue in the years after the state court made it legal: "I couldn't take away the happiness those people have been able to enjoy."

Jeff's argument suffers from another problem. He criticizes California's court for assuming that homosexuality is immutable, and describes the research surrounding the issue as "contested science." This simply isn't true. There is, to be sure, plenty of contested science surrounding the question of why people are gay. What is the role of genetic factors? How do they work? Do genetic factors interact with environmental ones, and, if so, how? Is the process the same for gay men and lesbians, or different? How does bisexuality fit into the picture? And so on. What is not contested at this point--except by religious fanatics and bigots--is whether gay men and lesbians can change their sexual orientation. Yes, there are some people who persist in believing it. But there is also a swath of the population that believes in UFOs. I would hope our legal system would take neither view seriously.

Last point: What happened yesterday in California was, first and foremost, a wonderful moment. When I saw the news, my heart leapt, and I was not alone. Progress does not always happen perfectly in a democracy. Sometimes it happens at the behest of courts, sometimes at the initiative of legislators, sometimes thanks to the work of governors or presidents or even faceless bureaucrats. The point is, if we demand that progress only happen in certain ways, then we set ourselves up for a situation in which progress becomes impossible. I concede that there are sometimes costs when judges impose progress; and, though I am not a legal scholar, I do think that Jeff's philosophy of liberal judicial minimalism carries a lot of intellectual force. At the same time, against the undeniable appeals of this philosophy, you have to balance another concern: the very real aspirations of millions of gays and lesbians to live their lives fully as first-class citizens--not in some theoretical, distant day to come, when the maddeningly slow work of legislators and governors finally delivers the outcome via means that we might regard as ever so slightly more democratic, but now. What happened in California yesterday was that judges played a role in nudging forward a day that was going to come anyway. The only difference is that now it comes sooner. How can this not be something to celebrate?

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45 comments

I think that Jeffrey Rosen has the better of the argument here. Attitudes are moving in the right direction and the legislative route is preferable to the judicial route. The fact remains that gay marriage has not become legal through the California political process and that is likely to provoke a backlash. California is not necessarily Massachusetts; I would not want for this decision  to become a judicial template.

- liberal reformer

May 16, 2008 at 9:25pm

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Contrary to LR, I am of the opinion that Richard Just is the one who gets it right. In fact, I think his fantastic post summarizes it all exactly as it is. As I have pointed out previously in my post on the thread related to the analysis offered by Rosen, it is rather a stretch to argue that sexual orientation is not innate. Plenty of psychological research, as my psychology instructor explained back in college, has identified a biological basis for sexual preferences. Whether these chemical factors interract with, or are even superseded by, the environmental ones remains of course an open-ended question. But I highly doubt that, in the light of all disadvantages homosexuality brings about in a society that has by and large remained uncomfortable with the concept, many would consciously and willfully choose to be gay.

At any rate, discriminating against a person on the basis of who they choose to sleep with is practically akin to disliking an individual for the religion they choose to practice. We do not condone the latter so we should not justify the former either.

As for the potential for backlash, I may be wrong but I highly doubt it will occur. It did not in Massachusetts and, for all talk of referendum, I doubt the case will be such in California. Arnold the governor has already declared himself willing to uphold the ruling and expressed opposition to any voter initiatives seeking to overturn it. And given that all three presidential candidates happen to have identical stance on the issue of gay marriage, it seems illogical to expect that the Dem nominee will be pilloried, or even specifically associated with the decision at hand.

Instead of engaging in ridiculous dispute over whether a court of law had the right to interpret the California Constitution to resolve a burning question it was presented with, we should be celebrating the fact that it brought about a progressive ruling that may very well assist America in the effort to finally do away with its longstanding prejudices towards a herotofore mistreated section of the population. Is that not (in part) what we turn to courts of law for anyway?

- jkolic

May 17, 2008 at 1:18am

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I wonder if arguments about "how" gay marriage rights are implimented are camouflage of resistance?  Really, in a nation that oeprates on a separation of church and state, the only valid arguments are those based on the constitution.  The CA judges ruled that banning gay marriage is unconstitutional.  So have and will other judges.  Judges are the leaders here, they interpret the constitution.  Voter initiatives empower all sorts of perspectives that may or may not be constitutional.  As such, they can be ways to justify unequal rights, which is what they would produce for gay Americans.  To somehow suggest that gay marriage decisions would be more valid if they came this way simply violates the principles of our nation.   Anyone who lines up behind such voter initiatives not only threatens inequality for gay americans, but also supports undermining the consitutional principles of US democracy.

- TammyA

May 17, 2008 at 8:28am

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Jkolic: I respectfully disagree with you but I appreciate your civil, intelligent reply. Actually, I am closer to you than I am to Jeffrey Rosen on the immutable nature of homosexuality. But I am with him in that I oppose the judicial actiivism of this decision. I prefer legislative consensus.

TammyA: You speak of the constitution as if is a Platonic entity. It is a document, to be interpreted like all others. Last time I read it, I didn't see gay marriage anywhere. Surely, the Founding Fathers would have been horrified by that concept. We have advanced morally since then and so we interpret constitutional provisions differently. I assume you that you locate in the constitution - presumably in the equal protection clause of the Fourteenth Amendment -  the implicit inclusion of gay marriage. But that is not a knockdown argument; it has to be contended for and placed in context.

- liberal reformer

May 17, 2008 at 10:15am

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"At worst, the California court is guilty of overanticipating that consensus--of forcing the public to a consensus before it is ready."

I'm a little confused about this judical/legislative thing:

Once the court decided to hear the case (did they have a choice not to?) are they not obliged to rule on the constitutionality of the case. I don't understand what public consensus has to do with constitutionality.

Perhaps it might have been wiser to duck the case altogether, if that were a possibility. But having accepted the case, should the judges not render their honest legal opinion.  Did they have any other legal alternative that would allow them to avoid the decision. Surely, they shouldn't have rendered dishonest opinions because public consensus would not support their honest opinion.

As I see it, the only choice was to hear or not hear the case, and I don't know if they had a choice or not ... am I wrong?

- jts44

May 17, 2008 at 10:16am

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It's a no-brainer LR.  The 14th amendment said nothing about race or gender either, but has been used to protect those rights as well.  I make no Scalia-like originalist argument.  Of course the Constitution is a living document that needs to be amended over time to reflect modern life.  Who cares what the founding fathers would think about gay rights?  That legislative, judicial and executive tactics are used to deny the promise of the 14th amendment to gay Americans is an abomination.  That neither democratic candidate is willing to stand up for gay marriage is a disappointment and a failure of character and leadership.  Point is: judges who sit on appellate courts interpret the Constitution.  Denial of gay marriage is a violation of the 14th amendment.  Judges will continue to rule as they just did in CA and those rulings should not be trivialized or delayed until some voter referendums confirm their decisions.

- TammyA

May 17, 2008 at 11:29am

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Jts44 - No, you are not wrong. I think that what Just meant to convey in words you quote is that court has perhaps been too liberal in its reasoning/phrasing/expaining of the rationale behind the ruling. If you look at the analysis Rosen delivers, you will notice that he holds that judges ought to have confined their justification for gay marriages to a mere assertion that defining  that union as solely between a man and a woman is arbitrary and that they ought not to have gone as far as to conflate discriminations on basis of sexual preferences with racism. Just, for his part, believes that this liberal line of thinking is exactly what the society is headed for and that, at worst, the court may have come out to formulate it a bit sooner than the voters are ready for. Hope that helps.

LR - I am glad we agree on the nature of homosexuality. I do not view Constitution as a Platonic entity either. It is clear that Framers purposefully wrote it in general, ambiguous terms, hoping to present the new Republic with a skeleton whose details would be filled in by later generations. Yes, I too am sure the notion of gay marriage would have horrified them - but then again, so would have the idea of blacks being equal to whites or the 19th Amendment. Reasonably deriving rights/constraints from a document thus broadly constructed is, in my mind, what the courts are there for - though it certainly helps when legislature/voters share their opinion.

I think we basically differ here in our concepts of what constitutes - as well as arises from - instances of judicial activism. I would not label the interpreting of the Constitution to reasonably find support for gay marriage judicial activism. Moreover, even if their decision is define as such, I do not think that, ultimately, gay couples will be any worse for the fact that the privilege was not granted through a legislative consensus. Just my two cents...

And by the way, thanks for a civilized disagreement on your end as well. I must say I see the ability to disagree respectfully lacking at times here on TNR...

- jkolic

May 17, 2008 at 11:32am

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Jkolic: Thank you for your gracious reply. Civil exchanges are too often lacking out here. This, I believe, is democratic discourse at its best. Moreover, while I haven't yet changed my mind, because of the eloquence of both Richard's post and your response,  I am now somewhat less wedded (pun intended) to my position.

TammyA: Well, to you it is a no - brainer. At this time and in this place. I assume that you probably are not on board with de jure polygamy. So what prevents Warren Jeffs from saying that it is a no - brainer when it comes to the rights of people practicing polygamy; after all it is in the Fourteenth Amendment? Or, say, someone wants to marry a twelve year - old. I know, I know: I can hear you screaming that it is against the law. Precisely. That underscores my contention that we arrive at the point of moral consensus. You are looking for a knockdown argument that just is not there. No matter how many times you assert that, it still is not there. I am with the conservatives - and Raoul Berger, too - who are suspicious of locating unenumerated rights in the constitution. This umbra and penumbra nonsense is just that. Having said this, I wish also to say that there are huge numbers of conservatives who rail at judicial activism only when it is on the left but are completely content when the activism is to their liking. Further, I am totally amazed by the naivete of conservatives' Platonism when it comes to the constitution. This to me is just a self - refuting position. Where I agree with the non - hypocritical conservatives is on the notion that we should proceed with caution in locating "rights" in constitutional provisions that are not explicity ennumerated. It has long amused me that so often it is those who talk reverently about "the people" who are so willing to do an end run around legislatures and ram decisions down the public's throat by means of the judiciary. This phenomenon helped mightily in keeping Democrats out of the White House for two generations now.

- liberal reformer

May 17, 2008 at 1:00pm

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LR -

I'm thinking out loud about this but the point you bring up with TammyA about incest and polygamy is one that I've heard before and I don't think (at the moment) that it holds up. Both these kinds of relationships are by and large harmful or destructive to one of the individuals in it. There might be a small minority of healthy polygamist / incestuous relationships out there, but the laws making them legal are at least partly there to protect the helpless. Of course it is also against societal norms, in much the same way as same sex marriages was/is but there doesn't seems to be any evidence that gay relationships are harmful to either participant. If current laws against polygamy and incest where strictly constructed on moral grounds then I could see the call to a slippery slope, but they are a different category of relationships than gay marriage.

- richardjpra

May 17, 2008 at 9:50pm

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Richardjpra: Thank you for your thoughtful reply. I agree with you, though.  That is just my point - moral consensus has to be hammered out and the legislative process is the best place to do it. By the way, I said nothing about incest but, rather, I postulated the example of a 12 year - old getting married. Remember, too, that the majority opinion held that homosexuality was a disordered relationship a few decades back. It was only in 1973 that the American Psychiatric Association voted to remove homosexuality from the list of mental disorders.

- liberal reformer

May 17, 2008 at 10:40pm

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LR, I'm gonna try to be as civil as I can be, but really, I'm tired of people using sexual perverts as comparable examples to discuss gay rights.  Really, can you consider how wrong and offensive it is to compare marriage between two consenting adults (who happen to be the same sex) with an older man and a minor (that is illegal in every state) or polygamy, which is essentially one of the most sexist institutions remaining?  I'm not surprised you pivot from that the the APA reference.  

There was no moral consensus on various civil rights issues before the courts paved the way for them.  Maybe you, personally, are pissed off that judges doing their jobs-- not waging a campaign (which is the def you should consider for activism)-- decided in a fashion that offends you.  

LR, I'm guessing you're a heterosexual white male, someone whose identify politics are clearly in-line with the Constitution (if you are not, then consider the example from another angle).  The living document approach to the consitution is the only way in which society can advance and stay relevant.  Waiting for a moral majority to be reached is a luxury the privileged group  has.  When you're on the receiving end of the inequality, you experience the pain.  

- TammyA

May 18, 2008 at 3:34am

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Terrific posts - just one quibble, but an important one: the terminology is sexual orientation, not sexual preference.  A preference is a choice, an orientation is not.

- Wandreycer1

May 18, 2008 at 9:26am

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Bravo Tammy!

- Wandreycer1

May 18, 2008 at 9:27am

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Tammy, you are Ghandi.

LR - comparing sexual minorities to criminals (polygamy, incest) is midevil, I'm afraid.  While I found your Constitutional arguments unpersuasive, I was not offended by them.  They weren't offensive.

But it is you who become uncivilized by choosing those perversion straw men to further your arguments, not the people calling you on the attempted manipulation - this transparent attempt to cloak yourself in the mantle of the intellectual just having their say, trying to make the anger you invoke somehow not acceptable.  

Well- this is what we call BULLSHIT. I can't imagine where you derived your Talkback name from with your views on sexual and gender minorities, they are shameful.  I have to just hope you are open to learning and growing, changing your closed, mean mind about stigmatizing people this way.  I have no doubt inmy mind that this has never happened to you.  

This is a standard technique of yours - throw a hate bomb, which you handily characterize as a nuetral intellectual point and wax offended when you are called on it.  Its manipulative and dishonest shtick I've seen you use countless times now  - claim the mantle of civility when trafficing in ugly stereotypes or name calling.  

Well, your perversion arguments are ugly, non-intellectual stigmatization and bigotry, Pat Robertson-esque in their smallness.  I'm not going to pretend to be polite about it, it's one thing when the clowns in the religio-fundamentalist-moron movement shower us with this garbage, its another when someone who is supposedly a liberal reformer (how again?) does it.  

These attitudes harm real people, cause real damage - kill people.  If that's liberal reform, I'm Cindy Crawford (which I am not).

- Wandreycer1

May 18, 2008 at 9:49am

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Here here Wandrey.  You wrote it better than me.  Thanks for having my back AND more importantly, all the backs of those waiting for the elusive goal of equity.  I'll be your wingman/woman any time.

- TammyA

May 18, 2008 at 10:31am

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By the way, all of the CA justices had to stand for election [even though they may have been appointed originally] - so they are voted in by the voters, just as the gov and leg are, and just as this referendum was. The voters have spoken with many voices. It is up to the Justices to interpret the Constitution - and if we listened only to the will of the people none of the civil rights rulings would have taken place.

Moreover, most of the founding fathers were suspicious of the will of the people/mob rule, thus we have such things as the Electoral College.

- mcgumbleton

May 18, 2008 at 11:19am

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Wandreceyrl: I"m sure you aren't Cindy Crawford. This being TNR, there is some very good commentary out here. But then, too, there is the obverse. I have had a few exchanges with those who clearly are not the brightest bulbs in the chandelier. You, however, set a new standard for density. First off, you denominate TammyA as "Ghandi". Not that you would know, but Ghandi slept naked next to teenage virgins to test his willpower. But even if you were cognizant of that fact, it probably would be okay by you because he was not a white male. From the texture of your communique, I would guess that you don't get out much, so I will clue you in: there are black males and black females and white females who think as I do on the prudence of the legislative path over the judicial. I happen to be a white male but you just got lucky because that guess arose out of your ludicrous misreading of my argument. Further, this will undoubtedly impinge mightily on your highly - challenged neocortex - Sheena, my fiancee, is a bisexual African - American (I checked with her while typing this to make sure that my citing her here was okay). I have long supported gay rights and gay marriage and you come at me with a meat cleaver as if I were Pat Buchanan, merely because I think that the legislative route is morely likely to advance the cause faster and deeper than judicial recourse would. As for the nature of my examples, any sane, competent reader could see that I cite them to show that there is no Platonic constitution or moral code out there that we might have recourse to. As for my examples, in no way did I invidiously locate homosexuality in the matrix of these examples. Back in the '70's, someone at National Review, I think maybe James McFadden, speaking of letters from readers that the conservative publication recieved, said that National Review had some of the dumbest readers on the planet. Unfortunately, the same can also be said of The New Republic in this century.

- liberal reformer

May 18, 2008 at 2:30pm

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Rereading my comments above, I was horrified when I saw that I mispelled Gandhi's name. Bleary - eyed from yesterday's unseasonable heat and working off the spelling in the functionally illiterate post above, I misrendered a name that I have encountered thousands of times. Mea culpa.

- liberal reformer

May 18, 2008 at 6:08pm

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Gee LR - that Gandhi stuff, that's DEEP.  

I am shocked, SHOCKED that you are a straight white male, I never would have known, it doesn't show or anything.  It's somewhere between a neon sign and a goodyear blimp.

The legislature in California has passed a half a dozen measures supporting gay marriage within the last few years.  My uncle's firm worked on several of them actually. But, I'm sure since you're so much more clever that me, you know that.  

But then - your unconvincing hooey of an argument makes no sense in the first place.  Oops.

I suspect you are lying about your "fiance" as well.  If not,  if she - assuming she's a she - doesn't mind having her civil and human rights being diminished by being compared to felons and sexual predators by her own fiance, then perhaps you are right - perhaps you are simply too evolved in some way mortals cannot fathom for me to possibly comprehend.  

Self-identified bisexual people typically deal with mistrust from the gay community, but can enjoy the privledges of the straight world whenever they chose. But even so - a majority legally telling them they are semi-human pretty much sucks however they are living their lives.  

But then, I'm sure you know that.

I don't even finish most of your self-serving, psuedo-intellectual posts LR, but this time your hypocritical antics were too gross, you liberal refromer you!  

You go Obambi man!  Your favorite slur!  You in fact, ARE Gandhi - spelled however it works for you - come to think of it.  

- Wandreycer1

May 18, 2008 at 7:35pm

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Wandreycerl: I  called you on your fatuous comments and you didn't even flinch before dishing out more of the same. Why are you shocked that I am a white male? Some people of color have views very similar to mine. In fact, there actually exist African - Americans with views way to the right of mine. Thomas Sowell, for example. This being America, it is allowed. What a devotee of groupthink and what an intolerant you are. You simultaneously illustrate two observations that I have retailed for years (1) That women can be just as vicious as men and (2) That it is invariably the biggest fools who are the first to denominate someone as stupid or pseudo - intellectual. You are an hysteriac who rants and raves and uses exclamation marks because you prose is too insipid and flimsly to convey any rational points, just like the nutters with their frequent use of caps in their typing. Anyone with any sense of style could see that my prose and thought are infinitely superior to yours. That is why you throw your little - girl hissy fits, hit shift and then the 1 key. Oh, there is one more observation that comes to mind that fits you: liberals can be a least as intolerant as conservatives are.  For your information, "Obambi" is not my favorite slur, it is Mo Dowd's. I used it just once. And this is the richest of all your inanities - you refer to me as a pseudo - intellectual and then confect the locution "...you liberal refromer, you!". You go girl Einstein. Sheena is not too happy with you and wants to kick your --- but I will apply my usual sweet reason to calm her sweet soul. She is a tigress in my defense, the most wonderful person in the cosmos. If I were the only person on a deserted island with you, I would defect forthwith. Disagreement is one thing, even of the vituperative nature, but you hit a new low with your statement that you suspect that I am lying about my fiancee. I invite you to come visit us but I am confident that you would never show your cowardly face.

- liberal reformer

May 18, 2008 at 8:46pm

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LR - Oh, you bet - women can be as vicious as men, usually more. Thank you! Your white maleness is fine with me, I'm married to one myself, have three white male sons as well.  Your privledged position was so clear, so ingrained, so knee-jerk - there was no doubt, though.  It was funny.

Sure, I'd be happy to meet with you - next time you and said the fiance are in Manhattan, anywhere near the upper west side or Columbia University, come on by. I'm not perfect, but I'm certainly not remotely afraid or intimidated by you in the least.  Not after the life I've lived, it's kind of hard to be truly afraid of much, let alone someone hiding behnd Maureen frigging Dowd.

I'm a social worker, been on the front lines of AIDS work and gay youth in New York City for 23 years - you and tigress can come to one of the groups I run with kids - mostly of color - who get beat up in school every day for being gay (or "perverts" as they are often called by their parents and peers) they are all pretty used to those pedophilia comparisons, they are old hat.  

I work with homeless youth here in the city too, most (but not all) of whom are gay and been kicked out of their homes. I try to get them off the streets and having to sell their bodies to survive.  Last week, I placed a 15 year who had been selling himself for 2 years now.  He thinks of himself as disgusting - gee, I wonder why?  I haven't been in the best mood or cultivated my patience because of this boy - a real victim if there every was one - these last few days.

I  would love to introduce you around the office.  Maybe you can share your comparisons of LGBTQ sexual identity with pedophilia and polygymy with professionals who have given their lives to work against such bigotry and ignorance. I'm sure it would go over well, you'd be a hit - I just know it.  

Again, I know you've stated how much smarter and courageous you are than I am several times now, that very well could be - I'm pretty fried these days. But at least make the effort to get the facts right on this ruling before you brag about your brilliance.  

The California legislature passed several bills supporting gay marriage and an activist (har) Govenor vetoed them.  What's left to get the people's views - as represented by the bills passed in the legislature -  finally passed? The courts, as Arnie said when he agreed with the ruling. I love Arnie, but he was dead wrong on this, went against the voters in his own state, went against what is right as well -  and he accepts that now.  You should too.

Seriously, anytime you're in town - I'd love to show you and tigress around my office.  We're not much, but we are commited to our work and will never back down from this sort of conversation, would be happy to continue it forever.  I am not much of a liberal warrior, being a pro-war Democrat and all. But you are wrong on this and fighting bigotry is not the domain of one ideology.  It transcends it.

Maybe you'll at least try to see how offensive you can be, and certainly was on this, although personal accountability hasn't been your thing so far as I can see.  I have never seen you take in someone being offended by your often offensive posts and just trying to learn from it, show some humility.  I guess you're just too brilliant for that.

I do regret saying I thought you were making up the fiance, it seemed pretty pat and handy. My bad, I apologize.  But I stand by the rest completely and then some.

- Wandreycer1

May 19, 2008 at 8:17am

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Colour me naive, but both pieces by Rosen and Just seem, wrongly  to me,  to frame their analyses and evaluation of the Caliornia decision within its political ramifications. What about the legal issue irrespective of political consequences? If denying gays the right to wed raises an issue as to their constituionally protected--state or federal constitution--rights, then isn't the issue is justiciable, and then oughtn't  its determination be poltically disinterested.

Given the constitutional make up of America, as I understand it, I don't get the argument about leaving the issue to the legislature. (But then, at the risk of biting off more than I can chew,  I'm one of four people in the known world that thinks the majority's reasoning in Roe wasn't so terrible and that Brandeis was right in Olmstead famously to say that every fourth amendment issue raises a right of privacy issue.)

- basman

May 19, 2008 at 11:44am

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Wandrey, you haven't answered the question.  If there's nothing magic about the traditional definition of marriage, then what's magic about 2?  By what principle do you deny full marraige to 3 people who are in love?  It's against the law?  So was homosexuality at one point.  How do you deny it to adult brother/sisters?  Oh, I know, it's the ick factor - except that what's conservatives said about homosexuals, and you ridiculed them.  What if I want to marry my grandmother so she can be on my health insurance?

Once you unmoor marriage from its traditional understanding, by what principle do you disallow - indeed, REQUIRE the state to recognize any voluntary arrangement between/among adults?

- butchie b

May 19, 2008 at 11:49am

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butchie b respectfully your question seems misconceived. With it you conflate numbers with gender. Numbers don't  require gender to pose themselves as a question. By what principle do you defend marriage as a two person union leaving out the question of gender? That principle will answer the question of numbers. If you say simply the principle is the tradiitional definition of marriage, that is not a principle I don't think,  and, I further think, you are arguing in a circle.

- basman

May 19, 2008 at 12:09pm

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Basman,

I agree with you. Questions involving constitutional law ought to be settled in a politically disinterested fashion, with justice as the sole criterion. In an imperfect world we live in, however, it is somewhat hard for the Supreme Court - state or national -  to issue a ruling that does not take political ramifications into consideration to any extent whatsoever. Thus, for better or for worse, public opinion has always played some part in opinions rendered. (Recall that during the FDR era national Supreme Court initially doggedly rejected all legislation that sought to place limits on the private sector, only to abanon its stance after the President threatened with court packing and the public displeasure soared high.) This is not to say that justice/legality should not always be the primary criterion - but it is to suggest that constitutional courts have always had to carefully balance that requirement with the political aspect of questions they were asked to resolve, a fact that, I think, explains why both Rosen and Just spend such ample portions of their blogs focusing on the political ramifications of the gay marriage ruling.

And by the way - count me in with those four people who approve of the reasoning behind Roe vs. Wade and support Brandeis in his assertion that every fourth amendment issue raises questions of privacy rights.

- jkolic

May 19, 2008 at 2:15pm

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Basman, we'll simply disagree then.  I believe that the traditional undestanding of marriage should stand until someone comes up with a good reason to change it.  Guess that's why I'm a conservative.

You want to change the understanding of what is state-sanctioned marriage.  My question is, why stop at gay marriage?  If 3 or 4 or 20 adults love each other, why should the state not be required to legally recognize it?  And why not adult siblings?  And what's love got to do with it anyway?  Oh, sure, that's the ideal, but it's not necessary.

I understand I'm making the slippery slope argument, but I struggle to understand why gays are worthy of the legal rights of marriage but polygamists are not.

- butchie b

May 19, 2008 at 2:46pm

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basman, I think both sides of the court's vote claim have based their vote on a strictly legal basis and seem to have taken pains tho make clear that their personal views were not in play. (Considering that Scalia had recently made the same claim about his decisions, one might take this with a grain of salt.)  So I think you must take a look at the decision as written.  Personally, I'd like to known where they got the notion, beyond sentiment, that marriage is a right.  Apparently they base their thinking on Perez, viz. if you can't outlaw inter-racial marriage, then you can't outlaw same-sex marriage.  I think that's glib and specious.  They are inferring a universal to marriage from a set of specific decisions.  Perez would seem like a no-brainer, since racial discrimination is proscribed explicitly by the Constitution, so it must follow...

The Equal Rights Amendment to the U.S. constitution is defunct.  One reason may be the fear that a constitutional proscription of discrimination on account of gender might be construed as mandating that institutions like marriage not only be color-blind but gender-blind.  Is there an ERA in the California Constitution?  The only prohibition of sex discrimination in the Calif. Const. regards employment.

Thus, the California Supreme Court has in this instance manufactured a right out of whole cloth.

- jm_rice

May 19, 2008 at 4:35pm

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Wandreycerl: I don't understand what this whole debate was about. You stand by what? Your bizarre outburst at someone who basically agrees with you? I can only imagine how you would respond to a conservative on this isuue. AK-47 anyone? I think that you were lampooning me by twice quoting my "tigress" conceit. It was just that - an ironic reference to Sheena, who is so sensitive that I worry terribly about her. I sense that you very well may have been treated abusively by a male(s) somewhere in your past. It would explain a lot. We are planning on having a baby soon and we will endeavor mightily that she or he not exhibit the venom and intolerance that you project. It is obvious that you have sustained some grave psychological trauma and I am sorry that this is the case. May all that is cosmically good be with you.

- liberal reformer

May 19, 2008 at 8:21pm

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It seems that, liberal reformer, who fancies himself a gentlemen, hasn't wasted more than a few minutes before finding himself embroiled in yet another flamefest.  And once again liberal has indulged his penchant for defending himself by offering up details of his marital and sexual life as if they are somehow either interesting or relevant.  What is the reason for this exhibitionism?  He deploys his standard cliched insults while, as usual, purporting to discern the psychological state of those who are offended by him -- in this case, "abuse" and "grave psychological trauma."

All of this from a man who, while noisily declaring his homosexual rights bona fides, just coined the neologism "fellabama" over on The Spine, by which he equates support for Obama with homosexual fellatio, intending both as a slur, and then went on to declare himself quite proud to have done so.  

Even basman seems to have no appetite for coming to his defense.  Pity the baby.

- roidubouloi

May 20, 2008 at 2:45pm

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Roidbot: The hyperintellectual has reared his ugly head yet again, this time deploying that brilliant psychological term "baby'. Where do you find time to become so brilliant?  Just as over on the Spine , I was flamed first by someone even more fatuous than you, 'bot. I had an extremely civil disagreement with a gentleman on the topic at hand (cf. above). But then along comes w., who attempted to denominate me a bigot for reasons I still don't understand. So I responded. I have long noted that intelligence draws the nutters into opposition. I know your type 'bot, from schoolyard days on up. I am extremely nice, I give of my time and money but I can be a streetfighting man if the occasion calls. The bullys and punks of the world do not daunt me so have at it, 'bot. It is obvious that you're onanistic posts are your life.

- liberal reformer

May 20, 2008 at 6:30pm

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Boy are you dim, liberal.  Quite clearly, the baby that I pity is the one you say you are going to have.  

To have to grow up in the household of a pompous, bombastic, pseudo-intellectual, dishonest bigot like you will no doubt result in a lifetime of psychotherapy.  Or perhaps you can just grace the world with another loathsome thing like yourself.

- roidubouloi

May 21, 2008 at 8:17am

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genug!

- basman

May 21, 2008 at 10:32am

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Roidbot: You are the dim one. Anyone outside of your valets can see that. The "baby" trope is ambiguous; you are such a name-caller that I simply assumed you were at it again. Speaking of which, the issue of who the pseudointellectual is becomes obvious to everyone - besides your valets, of course - who reads your libelous screeds. My posts are peppered with learned references, yours are littered with "pig" and "clown". You wrote recently over on the Spine that you spent thirty years in banking; you write more like you have spent one year in middle school. You are a prominent example of a phenomenon that I often talk about: someone can get by in, say, the world of work, but simultaneously can suffer from severe arrested development. Anyone who knows me knows I am not a bigot. They would find that laughable. I am betrothed to a bisexual African-American woman and I am a bigot?  'Bot, I don't think that even you are fatupus enogh to believe this (if in reality you do, you are even more brain-damaged than I thought). I think that it is just a talking point for another of your extremely mindless onanistic posts. As for our baby, she will get an incredible amont of love and care. She will be treated just the way I treat everyone, save for naughty in-your-face little boys who never back down. Funny about the baby remark. I was just telling Sheena that I feel sorry for your children, if you have any. "Pig" and "clown" are not good names for the little ones.

- liberal reformer

May 21, 2008 at 11:55am

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I love watching the steam come out of your ears, liberal.  You are such a child -- and also a pig, in your homophobic attitudes, and a clown, in your behavior.  A trifecta.  And here you are yet again boasting about how your "posts are peppered with learned references," laughably oblivious to the fact that no one of any genuine intellect or education would say such a self-humiliating thing.

You claim to have read Freud, yet you seem to believe naively that having a bisexual African-American girlfriend (just now promoted to fiancee, I see) means that you cannot be either racist or homophobic.  Freud knew otherwise.  Who can count the number of overt white racists who have sexual relations with blacks?  Who can count the number of overt homophobes who are themselves having homosexual relations?  These stories are a commonplace.

It is your own words that tag you for what you are, liberal, a foul-mouthed bigot.  No amount of declamation about your girlfriend, who may or may not exist, gets you off the hook for the vile things you actually say.  If you are reading other posters' comments about you, it is pretty clear that everyone gets you.  Wandreceyer, who never to my knowledge has gotten into one of these flamefests you love with anyone other than you, called it spot on: You lob one of your hate-bombs and then prattle on about "civility."  No one is taken in by your act.

- roidubouloi

May 21, 2008 at 1:23pm

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It's a good thing everyone is listening to me and that everybody has kissed and made up!

- basman

May 21, 2008 at 2:33pm

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Ah well, it has to run out of gas eventually.

- roidubouloi

May 21, 2008 at 4:57pm

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'Bot: Given the pseudointellectual you are, I am not surprised that you do not know that Freud was far more the fantasist than the scientist (therefore he is perfect for you). Some of us had a good exchange over on the Spine on just this issue a few short weeks ago. A pity you missed it but no matter, it would have gone over your head anyway. Frederick Crews superb Follies of the Wise would be in the stratosphere in relation to your cranium. My relationship with Sheena morphed because - gosh, it does actually happen - we just recently got engaged. Your cortical faculties are so cramped that you cite me as homophobic simply because I cracked a joke - and a good one - at your expense. I know all about self-hating homosexuals, probably before you even knew what homosexuality was. I have gay friends who I am extremely nice to and regard highly, I recommend good books on the topic of gay rights, ad infinitum but you act as if you know me. You are extremely narcissistic - you write as if the world revolves around you (e.g., you mistook me lecturing the little boy that is you for me lording it over all the bloggers out here), you personalize disagreements, you have no sense of ambivalence. You would have made a great grand inquisitor. Where are the auto-da-fes when you need them? Lastly, I pity Paris and your children (if there be such).

- liberal reformer

May 21, 2008 at 7:12pm

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Yes, liberal, you are just the sort who thinks one can oppose racism while telling nigger jokes and be for gay rights while trying to insult people based on their sexual orientation.  The more you wriggle and jiggle and try to paint your loathsome behavior as if it is due to my misunderstanding, the more evident it is that you are every bit the disgraceful human being that you appear to be based on your own words.  

So glad you are nice to your gay friends.  I am sure they are grateful.

- roidubouloi

May 22, 2008 at 1:34pm

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'Bot: You are the biggest fool out here and that is really saying soemthing. You almost - hell, what am I saying almost? -  have the demeanor of the four-year old who thinks that if he just says something often enough, it will come true. I so loathe the racist term you use I will not even employ it in speech or in print. It is beyond interesting that you have no such compunction.

- liberal reformer

May 22, 2008 at 2:03pm

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It is very unfortunate, liberal, that when you are frustrated and on the losing end of an exchange you cannot do better than to resort to homophobic jokes to try and bail yourself out, but it is a pretty clear indication of your low character.  You might consider at least learning how to behave in public even if you are unable to get your emotions under control.  If you can grow up and at least behave like the civilized human being you like to imagine yourself to be, you may find that, over time, you can internalize that and actually become a civilized person.  

No time like today to start.

- roidubouloi

May 22, 2008 at 8:11pm

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'Bot: Nothing like being called a juvenile by a juvenile. Or being downgraded from human status by a reptile. So any joke involving homosexuals is homophobic? Is that your position, nutbot? Sounds like the pwogs who won't tolerate any kind of joke about blacks, no matter how nonracist, because it involves poor oppressed people. What a piece of work you are. I swear you must be related to that dotty white lady in one of Shelby Steele's books, a university person, who spoke for him on his views concerning affirmative action - she signed on to it for him because he is black, therefore she "knew" his position. 'Bot, you p.c. police kill me. By the way you do know that there is a lot of antigay sentiment among blacks, don't you? Well, probably not. But it is a fact. The excellent African-American columnist Leonard Pitts has written about this phenomenon. So I am going to put your "convictions" to the test. I want to see your antiracism collide with your puatative antihomophobia. Now that you know this datum, I challenge you to cite a huge swath of the black community as homophobic. Will you do it? Of course not. The 'bot is all rabid-dog foam.

- liberal reformer

May 23, 2008 at 1:43am

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This is fun, liberal!  I've got you by the nose.  I've got you by the tail.  And you just continue to spew incoherent venom.  Another one of your ridiculous challenges to adopt some absurd point of view of yours. On pain of what, you silly little boy?  You're going to REALLY, REALLY throw a tantrum that's worse than the tantrum you have been throwing for nearly a week now?

You are about as threatening as any two-year old kicking and screaming and throwing himself on the floor, because that is exactly how you behave.  Not an impressive display.

It is of no current interest or relevance that there are homophobes in the world other than you, liberal, or that some of them, maybe many of them, are black.  You are embarrassed by your own crude, homophobic speech, as you should be.  Accusing lots of other unnamed people of being homophobic too doesn't get you off the hook.  It does not make your behavior and less deplorable.

- roidubouloi

May 23, 2008 at 5:43am

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"Bot: At last. An admission that you are having your juvenile fun. I am doing my civic duty, attempting to delouse the venerable TNR. Can you say "arrested development"? I cited Leonard Pitts as the source of my comment. Let's see, who is slightly smarter, the 'bot or Mr. Pitts? Could a termite outthink Albert Einstein? One won a Pulitzer, the other couldn't think his way out of a paper bag. You are against the unnamed? You must reject entire disciplines like sociology, which are big on numbers-crunching but short on naming names. As I have said before, you are so literal. You are exactly the type of person that mollysimon blogged about on the Spine early this month: literalist, no sense of irony, etc. That is why you enjoy bashing Hillary so much - it is something you can get your tiny mind around. Sweeping conclusion and abstract thought are allergies attacking your brain. As for my joke that clearly deranged you more than you already were, it was not one whit homophobic. Believe it or not, 'bot , I actually make heterosexual jokes, too. My God, I just realized, that makes me heterophobic (or does that only work one way?) and a self-hating heterosexual, to boot. I would never have known without your genius weighing in. You are really a tricked-out Puritan, a p.c. policeman. With "liberals" like you, who needs conservatives? You marry the Gauleiter style of Pat Buchanan to the identity politics of the Nation. Bizarre.

- liberal reformer

May 23, 2008 at 11:08am

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Why, liberal, the fun isn't in writing this stuff,  The fun is in watching the reaction from you, and watching you humiliate yourself in front of a crowd as you struggle to defend the crude and vile things that come out of your mouth in your fury.  You have reached such a point of frustrated, intense anger, that all I have to do now is tweak you a little and you light right up all over again.  

Any time, anywhere, liberal, I'll be happy to go a few more rounds with you.  It doesn't get much easier than this.  

- roidubouloi

May 23, 2008 at 8:02pm

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'Bot: Of course it doesn't get much easier than this. You are a CD skipping endlessly. No effort at all. My intense anger? You were shrieking like a baby who soiled herself when I made that joke at your expense. You were screaming "homophobe homophobe". And then you have the nerve to say that I am angry. The dead giveaway that your are twisting slowly in the wind is that you keep repeating that people out here can see what I am like. Shakespeare had a great line about you: 'Methinks thou doth protest too much".

- liberal reformer

May 24, 2008 at 2:00am

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