While confined here in the Birmingham city jail, I came across your recent statement calling my present activities "unwise and untimely." Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statements in what I hope will be patient and reasonable terms.

[williamyard looks up from his task of transcription to see if it may be necessary to continue.]

Let the people decide. This isn't a matter for the courts, and will only come back to hurt us in the long wrong. Enough with the culture wars, already.

Thanks for the hyperarticulate analysis of the decision by the California Supreme Court. Now that I have the floor, I want to also thank you for your sterling writing on legal matters. I have enjoyed your commentary in TNR since you began writing there. Your book on the US Supreme Court is very good, as well, and I learned much.  I winced when I saw the headline in the New York Times on this decision. It is even worse than I thought, after reading your article, because, as you explain, it was so expansive. Just the thing to rev up the social conservatives. Attitudes are moving in the right direction in this country and robust judicial decisons - that bypass legislatures - are surely not going to advance the cause.

Teplukhin,

I respectfully disagree.  A majority of people thought separate but equal treatment was okay, that women shouldn't be able to vote, that government sponsored prayer in schools is okay.  I think the point of the constitution and judicial review is to preserve the rights of the minority, even when the majority would prefer to deny those rights (apparently in this case because the thought of anal sex is squicky, or something).

But wait...the US Supreme Court struck down anti-buggary laws effectively making it ok for gay and straights to get their chocolate wings. Surely this must be the slippery slope the conservatives were talking about right?

I find every reason for denial of marriage rights to gay and lesbian couples to be weak at best, bigoted at most. There are no real reasons for denial of this right for two consenting adults to enter into marriage on equal terms whether or not they're gay or straight. Anti-gay marriage laws are the last gasp attempt for cultural conservatives to feel they have some capacity to keep the modern world at bay. Having failed at flat-earth policies, inquisitions, Jim Crow laws, anti-suffrage laws, 'Kill a Queer for Christ's Sake' stickers and  foreign policy, New Coke and abstinence education, this is their last refuge of hope.

I have no patience for people who can stand there and make counter-logical arguments for why gays and lesbians should not be able to marry one another when looking at straight marriage over the millennium they can do no worse. I'd be happy the day my gay friends and family members can openly find someone they love and openly commit themselves to that person in matrimony if they chose to.

So the real question is this:  Are the laws of our country and of our individual states products of legislation or revelation.  If the latter, the courts have no authority or power to redefine marriage.  If the former, God has no authority or power to interfere with their decisions, and,nether do those who speak in the name of God.

What reganad said. You took words right out of my mouth.

I do understand fears over the possibility of an overtly liberal decision provoking a backlash. However, I think it highly unlikely. Number one, gay marriage is not as relevant of an issue as it was in 2004. Amidst gargantuan problems such as skyrocketing gasoline prices, an economy in freefall, and lingering fears over terrorism, very few voters are likely to singlemindedly turn their back on a Democratic nominee over a California Supreme Court decision. Number two, as the blog itself states, positions of three presidential candidates on this particular question are virtually identical so there would be very little basis to singling any of them out as particularly aligned with this judicial decree, however unpopular it may prove. Lastly, given the stance of moderation that has, by and large, characterized the McCain campaign, I find it improbable that the Republican nominee himself will make much fuss out of the issue. Schwartzenegger, a McCain backer and a similarly minded individul, has already stated that he intends to back up the ruling and oppose any referendums seeking to do away with it. My hunch is McCain looks at the situation along the same lines and will simply avoid commenting on it altogether.

As for the argument that homosexuality is not an inate characteristic the way race is, I must point out that plenty psychological studies have identified a biological basis for sexual preferences (or so my psychology instructor claimed in college) - though the extent to which social conditioning contributes to, or perhaps overrides, that condition remains, of course, an open-ended question.

Either way, discriminating against a person on the basis of whom they choose to sleep with seems to me to be about as unfair as discriminating against an individual on the basis of faith they choose to practice. If it is socially unacceptable to hold the latter attitude, the former shoud not be justified either.

I confess to being quite pleased with the ruling. It is about darn time America started doing away with deep-rooted prejudices anyway.

I find this analysis risible.  It makes little difference to the social conservative movement what the reasoning behind the decision is.  The California court could have extended marriage rights to gays and lesbians with a narrow reading, with an expansive reading, or because they consulted the entrails of a goat.  So long as the words "gay" and "marriage" are in that sequence, the opponents of same will be up in arms, and the social conservative movement will make hay.

I think it is the right thing to do.  I wish we would have "do the right thing" campaign.  A campaign that says it is wrong to continually increase the debt to pay for our spending today, knowing that we are reducing the standard of living that will be available to those left to pay it after we are gone.

It is wrong for a president to talk only to people who already agree with him, and to govern in such a way that only those who show unflagging loyalty are considered by the government.

It is wrong to go war on a pretext, and only count the casualties of our soldiers, because however many brown people die or are injured, well, they don't even speak English.  

It is wrong to give incentives to companies to move their jobs overseas, and ignore the fact that those jobs could have gone to Mexico, then complain that people without jobs are coming here illegally (but the illegality is winked at because it benefits some employers).  

It is wrong to lock up so many people, for so long, over so little.  

I think a morality campaign is something the democrats could successfully wage, without ever referring to a an ancient religious text.

So off-topic!  Sorry!  But I am sick of doing the wrong thing because it benefits connected people, instead of just the people.

Count me in with Reg -- I don't even buy the federalism arguments -- no Earl Warrens on this Supreme Court.  

Another point: it's tragic that this is going to be a major issue in the 2008 campaign, as it was in 2004 (at least it looks that way at present).  I predicted that there would be *some* stupid, peripheral issue that would detract the electorate from the major issues "like gay marriage in 2004" but I didn't think it would be gay marriage again.

Rosen is right, not just from a political standpoint but on the merits.  The civil disabilites which same-sex couples suffer are addressed by Calfiornia's Domestic Partnership law.  So, why are gay marriage advocates so adamant in pursuing their agenda?  

Lawrence v. Texas has taken the wind from the sails of gay activists, who were into the movement as much for the drama as the cause.  But wait!  The drama queens (What else do you call those who call opponents of gay marriage "homophobes" or screech about a new "gay holocaust" if they don't get their way?) have found a new cause, a new grievance, which has less to do with civil rights than with fulfilling domestic roll-playing fantasies and the need to be on stage.  And what's worse, straight self-described progressives, terrified of being seen as unfashionable, buy into this malarkey.

Homosexuality is no longer illegal in the Untied States.  Domestic partner laws are ubiquitous.  It's been a good day, and you'd think some people would get a life.  But no, their loud and trivial pursuit, coöpting a score of issues far more important to the commonweal, continues.  Psychosexual infantilism is a term that fell into disuse long ago, but it is by no means obsolete.

If and when the people decide to redefine marriage, let them do so. Keep this out of the courts.

Progressive forces will win in the long run. It would be foolish and disastrous to (yet again) allow God's Own Party to shift the basis of yet another presidential election to a kulturkampf issue that doesn't even make  the short list of our national priorities now.

Are you people _trying_ to lose? Again?

lymon, of course it won't be a "major issue" in the 2008 election because none of the candidates supports gay marriage and because none are from California and because the parties won't let it be an issue, especially the Dems, who (finally) know how stupid it would be to let the gay marriage screechers grab the mike.  Of course, it will be an issue where there are initiatives or referendums, but not a direct national issue.

And you really should "buy the federalism arguments".  It's because of federalism that state sovereignty shields us from travesties like George W. Bush and enables them individually to buy into idiotic notions like gay marriage.

Jim -- is that really true?  Is McCain going to oppose the referrendum to reverse the court's ruling and support the Cal Supreme Court stepping in?  Will Obama have no opinion on the referrendum?  They won't be asked in the debates?  

I campaigned for Kerry in 2004 and from what I saw in rural america, Rove got it right (at least for that election).  Lots of people voted for Bush even admitting they were closer to Kerry on the issues, but it was cultural payback time -- they felt dissed by "the elites"and they were going to show them who was in charge.

Tep: come on, the issue is broader than "marriage" -- if this was just about the word and didn't include "civil unions" then fine.  But it is about civil unions (the FMA and the proposed Constitutional amendment aren't limited to semantics).  If this was inter-religion or inter-racial "marriage" we wouldn't be having a debate about how we should support a system where some states allow and others disallow.  Sometimes you can be Jefferson, other times you gotta be Tom Paine.  

P.S. to JM -- while I suspect the statistic is inflated, it is said that there are thousands of rights that married/"c.u." couples have which "domestic partners" do not, and there's no easy way to extend those to gay couples on a law-by-law basis.

tep

the courts have only steeped in because this is a basic question of equal treatment under the law - one that legislatures have been hesiatnt to deal with.  California's legislature passed a law which essentially conceded the point, and aside from the nuts on the religious right, most people seem to be okay with civil unions that include all the rights of marriage, without the name.

It makes no sense for Republicans to argue that these questions should be settled in the legislature and then either duck the question or get the governor to veto the bills -- I think they prefer to let the courts handle these hot-button issues so they have something to complain about.

I would like to see this issue off the table - it is not high on my list of priorities in 2008.  But if we want to keep the courts from deciding this kind of issue, the other two branches will have to pull their heads out of the sand and act.

Neil

Sigh.  I guess someone has to be the dissenting voice here, so it might as well be me . . .

I find it interesting that all the commenters thus far (and Jeffrey Rosen as well) all assume that there could be some minimalist decision that would allow gay "marriage" (yes, the scare quotes are deliberate) without the dangers associated with "expansive" decisions.

Does it occur to no one that finding a "right" to marriage somewhere in the constitution is, however carefully crafted, almost by definition "expansive"?

The desired result intended by the judges in this decision may or may not be a good thing.  I happen to think it is not, and not solely on the basis of divine diktat.  But however one sees it,  avoiding an "expansive" decision that is in the affirmative here is simply not possible.

Aaaaaaaaaah.  It's been so, so long, jm_rice.  I had wondered where you had squirreled yourself off to.  Nice to see your head popping back up for the important arguments.

So, let me enumerate why us gay fools go on and on and on about gay marriage.  We do so because marriage and "domestic partnership" are not equal.  The rights that accrue seemlessly to the married must be assembled, piecemeal and at the discretion of such outside entities as judges and employers.  Californian gays and lesbians may have been in a better position than most of us, no thanks to the voters in their state, but the same cannot be said for the thousands of the rest of us lucky enough to live in progressive edens with "domestic partner" laws, and thus have to have wills, powers of attorney and health care proxies in perfect legal order so as to make sure that our wishes as couples are granted.  But you wouldn't know about any of that, big strong strapping heterosexual that you are, because you can't be bothered to care.

This, of course, leaves aside the question of the honor paid to our relationships by having them described in the same terms as relationships enjoyed by the likes of people such as you, you woman-ogling non-screecher.  And I won't bother with that, because why waste my time with you?

One last little niggling note.  In addition to being so predictable I could practically write your posts for you (references to drama queens?  Check.  Use of the word "screech"?  Check again.  Ooops.  No reference to Andrew Sullivan yet.  I'm sure you'll get around to it.), your most recent little screeds raise my hackles for another reason.  You always, without fail, talk about gay marriage in the most insulting manner possible.  I wonder, do you have the stones to do it when you're talking about it in person, to the faces of gay people?  Do you have the same courage of your convictions that led countless gay and lesbian people to brave the hatred and condemnation of family and erstwhile friends and come out of the closet?  Or do you simply have a screen name, a sneer, and the safety of your anonymity to spill your usual tripe?

As a political issue, gay marriage was pretty ineffectual in it's heydey, today, it's almost non-existent.

Read this, it's short, the GOP isn't even gonna bother:

www.cqpolitics.com/wmspage.cfm

lymon, I don't see how it can be an issue if both candidates have the same position.  They will say, "This is a question for California voters to decide, and it would be inappropriate for me to intrude in the process.  That said, my position is that although I support partnership rights for same-sex couples, I also support the definition of marriage as between a man and a woman."

Kerry's support of heterosexual marriage was nullified by his being from Massachusetts. (If Howard Dean had been the nominee he'd have had a bigger problem because I think he's for gay marriage.)

Of course there will be surrogates and uncontrolled cadres that may try to make it an issue -- part of Tep's kulturkampf -- but I just don't see a Swift Boat-type scenario, if that's what you're suggesting.

As for the hundreds, if not thousands, of rights that marriages have that domestic partnerships do not, I agree that there is hyperbole there, and in the extreme.  Maybe what your source means is that there are thousands of implied rights.  (Hyperbole is what I mean by "drama queens".)

Marriage started as a way to encourage stable relationships needed to foster families.  Of course there could be other motives, including romantic ones, but the family was primary.  To encourage marriage in turn, societies have given them certain benefits.  This was not meant to discriminate against the unmarried; it was a carrot, not a stick.

To say that gays are being discriminated against because they cannot marry is like saying that I'm discriminated against because the guy digging for coal gets a depletion allowance on his taxes and I don't.  It's turning someone else's positive into my negative.  It's the essence of envy and covetouosness, which is what gay marriage in truth is about.

No, there are not thousands, not even hundreds of "rights," that can't be dealt with case-by-case.  Even if there were they could be dealt with en masse simply by a law stipulating that marriage rights would be extended to domestic partners with whatever exceptions were deemed appropriate.  This is how it's done in countries, such as Denmark, who dispensed with the issue long ago.

timteeter, that's really an interesting take.  Never thought of it that way.  Once you establish something as a right it becomes by nature expansive, because we are conditioned to our rights as being "unalienable".

Jim -- but they don't have the same position: the questioning won't stop with "federalism."  First, they'll be asked their position on the actual referrendum (and others like it).  Second, McCain left himself more wiggle room with the Constitutional amendment (i.e., it's not necessary at the present time) and the power of California to make it hard for non-government entitlies in other states to recognize them is significant.

Tim -- hey, who was it who expanded the Equal Protection Clause so far even liberals couldn't see the boundaries?  The "conservatives" on the Supreme Court in Bush v. Gore!  That aside, I find it a lot easier to find gay marriage/civil union protected in the Constitution than abortion, especially if you believe that being gay isn't a pure matter of "lifestyle choice."  In contrast, it's clear that the government has the power to control a citizen's body (for example: you're drafted into the army and ordered to march throgh Sadr City carry an Israeli flag with the Danish Muslim Cartoon super-imposed on it.  If that's not control over a body, I don't know what is).  

It should be noted that the California decision also looks at their state constitution -- frequenlty a state constitution provides more rights than the fed (e.g., some states give individuals the right of free speech on certain private properties, like shopping malls).  

I want to point out that the candidates' positions are not identical when it comes to gay marriage.  First, I don't know what the basis is for Mr. Rosen's assertion that McCain supports civil unions.  He's taken a federalist position with regard to states' rights to recognize civil unions, but I've found very little evidence that he supports them.  In fact, when New Hampshire passed a civil unions bill, McCain said, "If I were a citizen of New Hampshire, I would oppose it. ... Anything that impinges or impacts the sanctity of the marriage between men and women, I'm opposed to it."

Another major difference is that Obama is in favor of repealing the Defense of Marriage Act (DOMA), while McCain is not.  DOMA stipulates that gay marriages in a state do not have to be recognized by other states and cannot be recognized by the federal government.  So the legal rights that come with a gay marriage in Massachusetts pretty much end at the Massachusetts border.  DOMA is on somewhat questionable constitutional ground, since it may violate the Full Faith and Credit Clause, but the Supreme Court hasn't yet heard any of the cases challenging it.

I agree with Obama that DOMA is a bad law, but repealing it would be unpopular, and his support for that could help spark a reemergence of gay marriage as a campaign issue.  Poblano has a nice summary of the candidates' positions on gay rights and how they match up with public opinion.

www.fivethirtyeight.com/.../gay-marriage-presents-risks.html

As I've written before, I generally place anti-gay marriage arguments into one of two camps. The first camp starts with the assumption that gay sex is sinful. Therefore, this line of reasoning continues, the state is justified in doing whatever it can

Editors' Note: Guest blogger Tyrion Lannister is a Bilerico-Indiana blogger. This post ran yesterday on B-IN, but it's good enough it deserved more attention here on the main site. As I've written before, I generally place anti-gay marriage arguments