Toward a Supreme Court Showdown
Via NYT
Toward a Supreme Court Showdown
Six federal courts have ruled on the Defense of Marriage Act and reached the same conclusion: the 1996 law violates the Constitution by denying same-sex couples, who are legally married under state law, federal benefits afforded to heterosexual couples for no good reason. The issue has now officially landed at the Supreme Court.
Last week, the Obama administration asked the justices to review two court decisions — one by the United States Court of Appeals for the First Circuit and one by a Federal District Court in San Francisco — striking down the law’s denial of benefits on equal protection grounds.
there are a couple of unlawyerly choices of phrase in the above. i hope those who disagree with me will try to understand the point i am trying to make, and not, for example, go off on the “fact” that working women are also subsidizing the “marriage benefit.”
i submit that traditional marriage has an important function in society that gay marriage does not.
times may change, but they haven’t got that far yet.
and no, i have no objection to gays being married or getting some benefits that normally come with marriage… but that does not extend to be willing to help pay for their support just because they are “married.”
Dale, You’ll have to be a bit more specific as to what kind of help might accrue to married gay people that you or anyone else may have to “help pay for.” I’m unclear regarding what benefits any married person receives that other people help to pay for.
Jack
blogger appears to have eaten the comment in which i spelled that out. since it posted it before eating it, i can’t imagine why it changed its mine.
what occured to me was, of course, the Social Security “spousal benefit.”
“Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said at a news conference with the leaders of Canada and Mexico.
Oops, that refers to a different law passed by a strong majority of a democratically elected Congress.
Personally, I have no objection to same-sex civil unions providing identical legal rights to marriage. I’m also not religious so don’t have a personal stake in those who are religious preferring to maintain a distinction between marriage and civil unions.
Jed:
So what is your point??? Perhaps we can again gerrymander the 14th amendment again to allow state rights to prevail and deny gays the right to equal protection the same as what was done to blacks during reconstruction and most recently gun laws. What do you think?
As far as I understand our law structure, marriage is marriage and represents a set of rights/privileges, obligations and responsibilities within our set of laws. That is what tradition is in the US.
So, what tradition is there that serves an important function within marriage that is specific to heterosexuals?
Civil union does not cut it in the US because of the unique way we have built our civil law using the word marriage, which I submit as used has no “religious” connotation. This is consistent with our non-religious constitution.
run
i am not answering for Jed, but since blogger ate my earlier, more careful, attempt to address the same question, i’ll say.. less carefully..
i don’t care if gays have all the rights of marriage… but i do think the court is wrong to say “for no good reason” when there is a perfectly good reason to deny some government benefits.
the “reason” is that for several thousand years “society” has recognized the special role women play in childbirth and child raising, and enacts laws to protect those women and their children. one such law is the Social Security “spousal benefit” which awards a spouse (wife) a pension even though she has not contributed a “tax” from her “wages.”
the rest of us… “society” …. agree to subsidize this benefit because we believe it is to the benefit of society… us… to offer this protection to women.
maybe a time will come when there is no need for this protection… a kind of Star Trek future, where childbirth is by test tube and child raising is by creche.. and women will be expect to pay their own way just like all other citizens.
but that is different from according the male spouses of male workers “benefits” that were predicated on the idea of the traditional roles of women in society.
note that SS already awards the male spouse of a woman “spousal benefits” apparently on the theory of equal rights. I could stretch mind mind to fit this on the theory that stay at home dad is essentially “mom” and needs the protection.
so don’t write me off as a complete neanderthal. it’s just that unlike your true liberal, while willing to grant all possible “rights” to gays, i do not confuse gay men with women. they really are different.
“but that is different from according the male spouses of male workers “benefits” that were predicated on the idea of the traditional roles of women in society.”
If a heterosexual married couple adopts, should they be denied the “benefits” that were predicated on the idea that the woman in the couple should personally bear the biological fruit of the union?
If a gay couple adopts, should they be denied the “benefits” that were predicated on the idea that one of (adoptive) parents has to have two X chromosomes?
If a member of a lesbian couple has a biological child via artificial insemination, should they be denied the “benefits” that were predicated on the idea that the non-pregnant parent has to have a Y chromosome?
These are not hypotheticals. I know examples of all three.
You need to get around more, Dale. Your parochialism is showing.
colberly said: i submit that traditional marriage has an important function in society that gay marriage does not.
Should traditional marriages that fail to perform those functions be sanctioned?
Joel
no need to be nasty. i thought about your three possibilities. when they become “the norm” the policy will take care of itself. meanwhile there is still not “no reason” to treat gay spouses as different from moms, potential moms, could have been moms, or stay at home dad moms.
Greg L
i wouldn’t do that. it seems to me that “traditional values” have value. besides, it gets too hard to administer.
i’d hate to see a bureaucracy having to deny benefits to women because they didn’t have kids. you know, the poor women might have grown up in a culture that encouraged women to stay home and take care of “the house.” i’m not ready to impose my… or your… cultural ideas on a civilization that has had its own ideas for tens of thousand years.
i am perfectly willing to let gay couples do whatever they want to do, but i don’t want to have to worry about them adopting kids for the tax and pension benefits.
as said above, when society really changes, all of this will take care of itself. but while social security… and “government benefits” generally are under attack, i am not willing to risk them by poking a finger in the eye of “traditionalists” in order to satisfy every claim for “it’s no fair” that people can think up.
look, try this..
imagine a traditional society. hunter gatherer or pre-industrial farming…
because Darwin in his wisdom designed men and women differently, men tend to be better hunters and women better gatherers. men are better plowers and women better home gardeners etc.
note “tend.” no doubt there will be some women who are better hunters than most men, and some men who are better gardeners than most women.
but over thousands of years these seem to have evolved to be the role-expectations upon which societies design themselves.
it may well be that Og and Charles love each other dearly, but society will expect them to both be hunters (there may be exceptions), and susie and sally may have a deep understanding, but society will still expect both of them to be gardeners..
and ultimately the Newnited States of America will design a Social Security system with these expectations built in.
No doubt Charles and Susie will see some injustice in this, and no doubt there is. But overturning tradition is not as easy as it seems. Are we going to means test all the Charleses and Susies to make sure their role reversals were “well founded”… and not just a way for their wannabe boyfriend and girlfriend respectively to game the system and generate a windfall for their friend at taxpayers’ expense?
seems to me that it’s likely to get complicated.
meanwhile as far as i know, both Charles and Suzie are eligible for means tested welfare in this country.
there is no need to grant them the same status as “traditional” wives for purposes of Social Security which is based on “you get what you paid for” with the great exception… for traditional reasons… that “mothers” are granted a benefit they don’t pay for, and most of us cave men are happy with that.
as i said
society may be evolving to a point where traditional marriage is obsolete. when it gets there, there will be no discrimination between men and women, gay and straight. but that won’t mean gays get spousal benefits, it will mean no one gets spousal benefits.
Dale,
I don’t know whether “traditional” marriage (which was “traditionally” all about money, estates and power) will ever be obsolete. But the notion that the state has any stake in maintaining traditional marriage certainly is obsolete. The government should get out of the marriage business. The state does have a legitimate stake in certain contractual relationships that can be covered by civil unions.
As a professional geneticist, I have to giggle at your silly appeals to Darwin and how our species lived before the industrial age. There is no logical connection between Descent of Man, Origin of Species and marriage. None. And the idea that same-sex couples should enjoy the same rights as heterosexual couples has *nothing* to do with hunting, plowing, gardening or plowing.
“no need to be nasty.”
Dale, as two of the three examples I gave involve family members, I regard your willingness to withhold from them the benefits society accords heterosexual couples who conceive their own children as “nasty.”
“but that won’t mean gays get spousal benefits, it will mean no one gets spousal benefits.”
I don’t see where that follows logically from what came before, but since most of what came before is bafflegab, I guess it’s unfair of me to expect logic.
What you should admit, Dale, is that you are personally uncomfortable with same-sex couples enjoying the same benefits as heterosexual couples. Don’t bother trying to paint it with the veneer of reason. It only makes you appear desperate.
Joel
my remark about Darwin was meant to be funny.
as for you, you don’t seem to have much of a sense of humor, or much insight into my mind.
i am more than uncomfortable about granting social security benefits as “spousal benefits” to gay men, or even gay women. in fact, i think i said that. in fact, i think it was the point of all of my comments. congratulations on having been able to discern that.
i am not a professional biologist, but i am the father of one. she is a better thinker than you are,
you wouldn’t know logic if Copi’s textbook fell on your head.
when “traditional marriage” withers away, there will be no need for “spousal benefits.” if that doesn’t seem logical to you, there is no way i could explain it to you.
as to whether or not the state has any interest in maintaining traditional marriage, i think that i am willing to leave that up to the people. i would not be surprised to find that traditional marriage will in fact disappear in another generation or two. but it hasn’t yet, so the “no reason” for treating gay marriages as the “same as” traditional marriage” is not yet the case.
as to how well that future society will work… i would expect it to work about as well as “open marriage” did in the seventies. but by the time the young adulterers figure that out it will be too late.
Joel, you aren’t much of a “scientist” confusing, as you do, what you want to believe, with “logic”, not to say “the truth.”
i wish you hadn’t irritated me. I am trying to cultivate a nicer personality.
maybe a brief exercise in “logic” will help.
Joel says “the government should get out of the marriage business.”
then he says “the government should provide spousal benefits to gay marriages.”
discuss.
meanwhile that nasty, desperate coberly argued that in a society where millions and millions of people have grown up expecting, and paying for, spousal benefits based on a traditional expectation of marriage… with or without state or church sanction… it is not “no reason” to disallow their objection to paying for spousal benefits in the case of non traditional marriage.
and as we know Darwin had nothing to do with sexual dimorphism. we know that because Joel is a professional biologist and he tells us so.
Colbey said: it seems to me that “traditional values” have value
What exactly are those “traditional values” in this case that you are defending here?
If the government is going to provide some form of support to those who produce children then let the governemnt do it in real time so that the support accrues to the mother and the child.
The spousal benefit is ill conceived. Does a woman who has not produced the “fruits” of the union receive the same entitlement? As you have so often noted here on AB the social security program should contain as few welfare benefits as is feasible. If a parent stays at home to bring up the kids they should receive a parent subsidy at that time, not in retirement. And certainly not if they’ve been doing nothing more than cleaning house for the “bread winner,”
Jack
SS is not welfare. the workers pay for their own benefits. with provision as insurance for among other things inadequate lifetime income.
but, because we are not a society of unisex, it seemed reasonable to the designers of Social Security to provide for the member of the household who does not earn a money wage. it seemed so reasonable to them that no one questioned it.
as a married person i benefit from the spousal benefit… “i” get a 50% greater benefit plus the comforts of having a wife.
on the other hand, as a worker-taxpayer i subsidize the benefit of the wife-husband unit.
it all works out pretty fair and doesn’t seem to violate anyone’s sense of justice… except now that the gays can “get married” they (some) think they are “owed” the benefits that used to go to those husband-wife units.
i emphasized the child bearing aspect of the husband-wife unit, because that’s really the basis of the whole “tradition.” but along the way… that sexual dimorphism stuff you know… women grew up expecting to “get married” and be the non money earning part of the man-woman unit.
no doubt primitive and grossly unfair. but it’s really, really hard to change people’s minds all in one generation.
i don’t think this answers your objection very directly, but i think if you think about it, you may find there isn’t much reason here to change the rules. yet.
I don’t see how you get from “social security program should contain as few welfare benefits as is feasible” to “a parent… should receive a … subsidy.”
the purpose of the marriage benefit is that benefits are set at survival levels. for one person. they have to be increased a bit if they have to support two.
and, as i tried to say above, the financing of all this has been considered and worked out. and it seems fair to most people who aren’t still mad about getting the smaller piece of the burfday cake when they were six.
Greg L
the traditional values have value because they are traditional. no doubt traditions can, and probably ought to, change. but until they do a decent respect for the people who hold them suggests that we don’t attempt to force them to change the very basis of their expectations about life.
in the present case, the traditional values that i happen to agree with, within limits, are those that give preference to institutions that protect children and their mothers. not to mention their fathers.
i have nothing against gay men, gay women, or gay marriage. what i have been arguing here is that it is not “no reason” to be opposed to granting gay marriages the same government benefits that are based on the expectations of traditional marriage.
and in case Joel is watching, traditional marriage has been around a long time among people who never heard of the pope or the Queen of England. and yes property rights is a big part of it, but there is a reason why property rights are tied up with marriage (that is procreation) and not something that the society has found a need to protect in the case of “best friends.”
it’s one thing to repeat something clever you heard once. and quite another to think about how it related to either the current argument, or to other facts and situations that might need to be considered. (this was directed at Joel, but in the nicest way.)
Coberly,
That’s why I suggest that support for a spouse who stays at home for the purpose of rearing children be done in a more direct manner. If there is logic today that suggests that a non-working spouse is
entitled to some form of Social Security benefit then it is illogical to make that benefit dependent on the sexual identity of the beneficiary. As the saying goes, what’s good for the goose is good for the gander. I don’t happen to agree with the concept of a spousal benefit though, as noted, I’d consider a parental benefit good social legislation. And once you’ve crossed the line of providing some benefit for one kind of spouse you cannot justify withholding that benefit from another. If some may be put off by the gender issue then make the benefit one for a parent, not a spouse.
Jack
since i already made my case against this argument i hesitate to repeat it, but since no one has to read it again:
the question re the spousal benefit for SS is not the “fact” of having had children. the point is that we inherit a tradition in which the “wife” is expected to be the non cash earning partner. a situation in which there is role reversal is close enough to the traditional expectation for me to rationalize that the husband should be entitled to the same “spousal” benefit as the wife in the more traditional home.
this does not depend on actual child bearing and raising. it depends on an expected economic arrangement that does indeed have its roots in the biological facts of human sexual dimorphism and the economics of child raising. it’s not that you had the kids. it’s that society has built its expectations on the biological basis of an economic arrangement that is not yet obsolete… or even close to obsolete.
it seems to me that it is not “no reason” that society says waitaminit when the newly created status of “gay marriage” is used to claim a cash benefit for partners who never had the expectation of carrying out the traditional economic role.
it seems to me your argument is based on an unconscious assumption that Social Security is “welfare” and society “ought” to be providing welfare to anyone who can claim either “i am a mom” or “a gay spouse is the same as a heterosexual spouse” .
i am not ready to go there. and i am not willing to put Social Security at risk by “demanding” that all the traditional people go there.
no doubt what you are arguing makes sense to you. it does not make sense to me.
the spousal benefit in current SS is not based on a welfare notion, or some idea of helping out moms.
traditional marriage is supposed to take care of helping out moms. that’s why it was invented.
the spousal benefit is merely a technical way of working around the different economic roles of the in-house spouse and the out in the world spouse…. as those roles have existed for thousands of years. times may change, but they have not changed yet.
you could think of the spousal benefit not as an “extra” benefit, but as the normal benefit: a husband wife unit pays a payroll tax based on the cash income of that unit. when it comes time to pay benefits an unmarried spouse does not receive the full benefit because SS money is limited and one person does not need as much to live on as two, so he gets a reduced benefit even though he paid the same tax as the husband-wife unit. this isn’t much different in principle from the rich guy getting a lower percent return on his tax (but still more absolute amount) than the guy who earned less and paid less. it’s insurance. and all the various circumstances are simply the “accidents” for which you insure.
you can’t make Social Security work “better” by simply increasing benefits every time you think of someone who dosen’t get as good a deal as the next guy. because the truth is NO ONE gets the biggest piece of burfday cake.
i wonder if you recognize that your proposal is something like “universal welfare.” women would go out and get pregnant and then the rest of us would pay for it. just like welfare as we knew it, only for everybody.
social security on the other hand is OLD AGE and SURVIVORS INSURANCE.
the difference matters.