California gets gay marriage and very hot weather

[Emsworth]

There is some very open-ended language in the (might I say rather poorly drafted) California Constitution that could, I suppose, be interpreted to require legal recognition of same-sex marriage. Thus, I won't comment on the correctness of the actual holding, implausible though it may be.

It is interesting to note, however, that the California Supreme Court expressly declared that its opinion would not compel legal recognition of incestuous or polygamous relationships because "our nation’s culture has considered [such] relationships inimical to the mutually supportive and healthy family relationships." To be fair, however, the nation's culture has historically believed--and for that matter, a large segment of the nation's culture today still believes--that same-sex relationships are harmful to families and to society. Whether those beliefs are right or wrong is quite immaterial. The point is that the very same logic that allows the California Supreme Court to retain the ban on polygamy seems to force the Court to retain the ban on same-sex marriage as well.

Come to think of it, let us disregard constitutions and laws for a moment. I would be interested to hear a single robust philosophical argument (as opposed to a merely practical one like "there are a lot of same-sex couples, and it would be more efficient to allow them to have visitation rights, etc.") that anyone can make for allowing same-sex marriage that is not also an argument for allowing polygamous marriage.

[Emsworth]

One that isn't entirely theological, axiomatic or tradition-based?  Can you give one for heterosexual marriage that isn't, and isn't rather tortured?

I did not mean to exclude arguments based on tradition. A very strong philosophical argument could be made that in a democracy, the government is bound to respect the traditions and values of the society from which it derives its power. And as it so happens, the traditions of the American society, as well as the current values held by a majority of the people, oppose the notion that two members of the same sex can be "married." This argument, although it is not one that I personally accept, is at the very least reasonable, but I cannot really conceive of an equally reasonable philosophical argument for allowing same-sex marriage while prohibiting other unconventional marital relationships that people want to have.

Not only does my partner have legal rights stemming from our relationship, even pre-marriage, but he has a social identity as my partner that we would never have if we were in an incestuous or polygamous relationship.

So you recognize that social identity, or to be more precise, the extent to which society is prepared to recognize a relationship, is relevant? If so, then I don't see how you're getting anywhere. Sure, society is more prepared to recognize same-sex couples than it is to recognize incestuous ones, and this might justify giving same-sex couples a higher level of government sanction. But society is even more prepared to recognize heterosexual couples. Why, then, does your argument not allow society to give marriage rights only to heterosexual couples, and create domestic partnerships for homosexual ones?

[Emsworth]

If there is a tradition that heterosexual marriage is an axiom in this nation, there is an even stronger tradition that 1:1 marriage is.

Sure, there is a hierarchy of traditions. Nevertheless, one cannot really deny that the tradition of heterosexual marriage is an extremely strong one. But for judges in two states, it would still prevail today across the entire nation. So one can still make a plausible philosophical argument that supports conventional marriage, but that does not support any other type of marriage. On the other hand, I am still unable to find an even remotely convincing philosophical argument that would reject the majority's definition of marriage, compel same-sex marriage, but not compel polygamous marriage. After all, the polyamorous are probably just as incapable of controlling their sexual orientation as the homosexual.

[Emsworth]

There is nothing philosophically unsound with "everyone should have the right to marry the one person they love."  Yes, it is somewhat arbitrary.  I'd argue that I can't find a convincing argument for it being more arbitrary than "everyone should have the right to marry the one person they love, as long as they are of the opposite sex."

That's precisely my point: There really is no philosophically sound argument for simply allowing same-sex marriage. It's really just an utterly arbitrary personal preference. At that point, I really don't see why the arbitrary preferences of a minority should be imposed, judicially or otherwise, on the majority.

[Emsworth]

Are you an american?

No.

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I did not "know" that the United States was founded on so implausible a principle, because, as it turns out, it was not.

The Constitution of the United States is ultimately a majoritarian document. It allows the majority, through its elected representatives, to enact such laws as it may desire, subject to only a handful of exceptions and limitations. And who adopted those exceptions? Who authorized those limitations? It was "We the People," that is to say, the majority. The majority decided to limit itself, but only in some cases. It did not set up the courts as super-legislatures, responsible for reviewing the wisdom of every single enactment. When judges stray beyond the words of the Constitution, they usurp power that the people never delegated to them; they take away authority that the people retained for themselves.

Now, of course, it is very convenient for leftists to praise judicial intrusion when that intrusion expands so-called "social rights"--abortion, same-sex marriage, and so forth. Needless to say, most of them would oppose the same judicial intrusion if it were designed to protect "economic rights" such as the liberty of contract. I doubt you would be very happy if the Supreme Court revived the doctrine of Adkins v. Children's Hospital (which held that minimum wage laws were unconstitutional because they violate the "right" of the employer and employee to negotiate with one another). In that case, too, the Supreme Court claimed that it was preventing the majority from infringing individual rights. Philosophically, I see no difference between those types of cases, and the case decided by the Supreme Court of California this month. The only distinction is that Adkins, decided in the 1920s, was favored by the right wing of the time, while the Marriage Cases are favored by the left. Each is a result-oriented expedient with no basis in the law.

But leave aside, for a moment, the issue of judging. You say that the majority should not have the power to impose its will on a minority. What alternative do you propose? Who shall decide the limits to the majority's ability to make laws--who shall decide what rights the minorities have?

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These cases require the government of California to do something, to grant a particular type of official recognition to a particular type of union. Marriage is a civil institution, and any change to that institution not adopted by the people themselves is an imposition.

[Emsworth]

I guess you haven't learned about [...] constitutional law.

Really? I guess one finds out something new about oneself everyday.

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I must disagree with your decision to characterize me as a member of the "masses." But I digress. You're right: The Framers of the United States Constitution did not trust the people to make political decisions. But the Framers of the California Constitution certainly did. That's why California allows laws to be made by referendum, but the United States does not. California's system is perfectly consistent with the federal Constitution, whose Tenth Amendment provides that undelegated powers "are reserved to the States respectively, or to the people." And the decision that same-sex unions should not be called marriages in the state of California was, as it so happens, made by those very same people.

But let's get back to the federal constitution for a moment. The general power to make policy, although not lodged in the people directly, was lodged in their elected representatives, the Congress. It was not granted to the courts of law. Of course, the courts should exercise the power of judicial review, and strike down any law that offends the text of the Constitution. But the manner in which California's refusal to designate same-sex unions as marriage violates either the state or the federal constitution completely escapes me.

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Let's say that a court decided that, if individuals wanted to work for less than the minimum wage, they should be allowed to do so, and that minimum wage laws are invalid. Would such a decision be an imposition on the majority? (Surely, it would not be an imposition under your standard, because no-one but the worker and the employer would be directly affected.)

[Emsworth]

OK fine marriage is a "privilege". But why should gays also not get that privilege? What is the reason for this apparent discrimination.

A majority of the people simply do not want to allow same-sex marriage. They view homosexuality as an immoral lifestyle choice, and do not believe that the government should officially sanction it. One may certainly believe that the people are wrong in this view. But one must still acknowledge that it is the view of the majority. Philosophically, it is no different from the view that polygamous relationships are harmful, and should not be recognized either. Both views have been written into the law; if one is acceptable, I don't see why the other isn't.

[Emsworth]

So the majority holds that view out of ignorance and bigotry? Ok!!!:)

The majority simply seems to have a moral revulsion toward certain forms of relationships (same-sex relationships, polygamous relationships, incestuous relationships, and so forth). You and I may not agree with them. We may call their views ignorant, bigoted, or XYZ. They are still the (deeply held) values of a society. Displacing them by judicial fiat still strikes me as inappropriate.