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Current Battle: Election 2004






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Saturday, May 22, 2004

Battle Gay Marriage - Iron Blogger Democrat - Closing Argument

Before I wrap up here, I would like to thank the Chairman for his time, effort, and other blood/ sweat/ tears work for setting up this forum and keeping it smooth. I have no idea what comments he deleted earlier this week, but I feel that he more than adequately protected my fragile ego.

I would also like to thank the judges for taking the time to evaluate this debate. I know I have brevity issues; I especially thank you for your patience in reading my First Rebuttal. (In fairness, the IB First Rebuttal always has twice the content to respond to as any other rebuttal . . .)

Thanks to Iron Blogger Republican Rosemary Esmay, as well, for blazing the trail with her victory last week.

I must also thank the commenters, the "peanut gallery." I say this not because I was influenced by them (if I made an argument one of them made, it is coincidental), but because of their exceptional participation, and the way they raised and considered nuances that did not cross over into the debate between me and the Challenger. I know that Haloscan's limits contributed to the high number of comments on some posts, but that auxiliary debate was lively and thorough nonetheless.

Finally, a thanks to Jimmie Bise, Jr., the wily and admirable Challenger in my inaugural debate as Iron Blogger Democrat. The Suburban Sundries Shack earns a well deserved place in the sidebar to your right--a place my own meagre blog does not even have. Well done, sir.

--

In a fit of glibness, I began my Opening Argument with one-word answers to the Chairman's four questions that opened this debate. I stand by those answers.

I think it's important to restate one of those four questions now, as it's really the only one the Challenger has taken on: Is marriage a sacred institution to be protected by Constitutional means if necessary?

I asserted in my Opening Argument that the Constitution does not now, nor should it ever, protect "institutions." The Challenger's response? Nothing.

I asserted in my First Rebuttal that case law shows marriage to be a fundamental right that should be protected, even for gays and lesbians, on constitutional grounds. The Challenger's response? Nothing.

I challenged in my First Rebuttal the Challenger's equal protection argument--"everyone is prohibited from marrying someone of the same sex, so it's equal!"--as just poor phrasing of the question. The Challenger's response? To repeat his earlier statement.

I asserted in my First Rebuttal, even beyond the challenge above, that the Supreme Court would find a gay marriage ban a violation of equal protection; there is no clearer case in my mind of the kind of discrimination rejected by the U.S. Supreme Court in Romer v. Evans. The "rational basis-plus" reasoning that was applied not only in that case but in last year's Lawrence v. Texas makes it clear that prohibiting same-sex marriage is "a law [that] exhibits [. . ] a desire to harm a politically unpopular group," in the words of Justice O'Connor. The Challenger's response? Nothing.

I asserted in my Opening Argument that no evidence exists to show that children in gay and lesbian households do any worse than other children. The Challenger's response? He cast aspersions on the American Psychological Association.

I demonstrated in my First Rebuttal, and further clarified in my Second Rebuttal, that Stanley Kurtz's claims about Scandinavia (leaving aside even what I said about his politics) did not project well onto the United States, as we are a very different country. The Challenger's response? To quote more of the same study.

[An aside: Thursday this week, M. V. Lee Badgett in Slate went above and beyond what I was able to do to directly challenge Kurtz, though he makes some of the points I did. I hate to bring this in now, but I did not find it until Friday afternoon. I'll just give a small slice:
Kurtz's interpretation of the statistics is incorrect. Parenthood within marriage is still the norm--most cohabitating couples marry after they start having children. In Sweden, for instance, 70 percent of cohabiters wed after their first child is born. Indeed, in Scandinavia the majority of families with children are headed by married parents. In Denmark and Norway, roughly four out of five couples with children were married in 2003. In the Netherlands, a bit south of Scandinavia, 90 percent of heterosexual couples with kids are married.

Kurtz is also mistaken in maintaining that gay unions are to blame for changes in heterosexual marriage patterns. In truth, the shift occurred in the opposite direction: Changes in heterosexual marriage made the recognition of gay couples more likely. In my own recent study conducted in the Netherlands, I found that the nine countries with partnership laws had higher rates of unmarried cohabitation than other European and North American countries before passage of the partner-registration laws. In other words, high cohabitation rates came first, gay partnership laws followed. [. . .]

No matter how you slice the demographic data, rates of nonmarital births and cohabitation do not increase as a result of the passage of laws that give same-sex partners the right to registered partnership. To put it simply: Giving gay couples rights does not inexplicably cause heterosexuals to flee marriage, as Kurtz would have us believe. Looking at the long-term statistical trends, it seems clear that the changes in heterosexuals' marriage and parenting decisions would have occurred anyway, even in the absence of gay marriage.

And all the conservative hand-wringing seems especially unnecessary when you consider the various incentives that encourage American heterosexual couples to marry. By marrying, U.S. couples obtain health-insurance coverage, pensions, and Social Security survivor benefits. Plus, in the United States we are required by law to be financially responsible for our spouses in bad times, since we don't have Scandinavian-style welfare programs to fall back on.]
I asserted in my First Rebuttal that the Heritage Foundation charts showed merely a correlative relationship, not a causative one, and that solutions to those problems might lie outside of banning gay marriage. The Challenger's response? To say, in essence, "But there's a lot of them!"

I asked, in my First Rebuttal, for evidence that gay marriage has produced, in Scandinavia or Canada or elsewhere, a flood of "slippery slope" bigamy, pedophilia, bestiality, and incest. The Challenger's response? He showed none--any slippery slope argument is purely hypothetical because there is no evidence that these things will happen.

I buried near the bottom of my First Rebuttal (I admit it) a handful of assertions about benefits gay marriage could bring, including an increase in the number of married parents and a greater level of tolerance and understanding of gays and lesbians. The Challenger's response? Nothing.

The Challenger began his Opening Argument by setting himself up as the persecuted (the Cruella DeVille line, e.g.), and built much of his First Rebuttal and Second Rebuttal around me: "I'm too cool to be having this debate"; "My First Pop-Up Book of . . ."; I "did not take this debate seriously"; and so on. I have tried to keep this debate on the quality of his evidence and the constitutional arguments; the Challenger has tried to make me look stupid.

I believe I have shown that the Challenger has not proven, as the Chairman asked, that marriage must be protected by a constitutional amendment. I believe I, on the other hand, have proven it should not.

The Challenger began his First Rebuttal with a serious question: "Is denying gays the ability to marry segregation or bigotry?" I ask you, if the answer is in the affirmative, should we pass this constitutional amendment? If the answer is yes, shouldn't we be doing everything we can to uphold and defend the rights of gays and lesbians to marry?

Four courts have answered that question, and all four courts have said yes (Alaska, Hawaii, Vermont, and Massachusetts). The Supreme Court has not weighed in, but I have shown that its past decisions indicate that it, too, would answer yes. Even Eugene Volokh, in the very post the Challenger uses to bolster his case in the First Rebuttal, says yes. Tens of millions of other Americans also answer yes and, while not a majority (depending on the poll), their voices should not be silenced by a tyrannical majority.

Most importantly, though, this is about people, about individuals and their rights to live and love, not as second-class citizens, but as full and equal partners in the experiment we call the United States. In my research, I found much more information than I could have possibly included, but one passage stands out to me as perhaps the most salient summative argument to be made in favor of allowing same-sex marriage. Ellen Lewin writes, from a perspective I can't share,
Last summer, my spouse and I went to Toronto to get legally married, 11 years after our extra-legal Jewish wedding. Our decision to do so was largely political. We wanted to be among those pioneering couples who would have a part in future legal challenges to marriage codes in the US. But nothing prepared us for the emotional impact of having government officials routinely process our paperwork or of having a functionary licensed by the province perform our brief City Hall ceremony. No family or close friends could attend, and virtually all routine wedding insignia were absent. But we were moved far more deeply than either of us expected; we came home feeling convinced that we really were "married," and that feeling has persisted even as we've had to confront our inability to officially claim any of the privileges that accompany marriage in our own country. [. . .]

Even for lesbian and gay couples who have not felt it necessary to enter into elaborate forms of concealment, the notion that one's union is not quite legitimate, not exactly "the real thing" casts a pervasive shadow over our lives. Marriage may seem like a small step, but it is what other people--other citizens--have access to, and it is what many lesbian and gay people, as participants in the wider culture, use as a standard of legitimacy. For many of the couples I studied, the issue was having access to some form of authority that they saw as attesting to the authenticity of their relationship: in some cases, the endorsement came from God, in other cases from the presence of family and non-gay friends; in still other instances, receiving gifts, wearing clothes associated with weddings, having a certificate of some sort, like a Jewish ketubah, or drawing on ethnic traditions in constructing the ceremony authenticated the event. For many couples, even an ambiguous mark of legitimacy opened the door to making other claims to equal marital rights, even if such claims involved nothing more than declaring their existence for the first time. Marriage certificates issued by the state or religious institutions clearly offer another example as they constitute evidence that the relationship is just what the couple claims it to be--a marriage.
When the courts say we must, when so many other Americans say we should, and when gays and lesbians say it's all they ask, how can we not offer them the legitimacy that they crave? Have we not learned any lessons at all from the last time we wrote second-class citizenship into our Constitution?

Respectfully submitted,
Jay Bullock, Iron Blogger Democrat
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Battle Gay Marriage - The Challenger - Closing Argument

Let us imagine that our country is as my opponent says it is. Imagine that the legislatures of all 50 states, the Congress, the Democratic challenger for President, his chief opponent, and over three quarters of the people of the country - your friends, family, and neighbors all willingly and intentionally choose to be just like segregationists and want to maintain bigotry. In this world we decide to bend our collective will to keep one group from living their lives like the rest of us and we do this for no good reason at all. We hear them asking for fairness and equity but we consign them to the twilight world of "separate but equal". Groups who in past decades had known this very treatment, who should be sympathetic, who had won their equality through hard struggle in the courts and with the vote - women, Hispanics, blacks, Asians - also stand in opposition to this one small plea. We ought to know better. Any reasonable person should. But we are not reasonable people. We are trapped in archaic systems of religious belief, bound up in hatred and fear, and duped by flimsy arguments by those who want us to continue this "de facto bigotry. We stand in the tradition of Bull Connor and the Klu Klux Klan and Isamofascists and the Nazis. We are not them - certainly not - but there is no difference between us and them. And we do this on purpose, arbitrarily, and with caprice - blind to the obvious faults in our argument no matter that they are pointed out to us ever day.

That is the world in which my opponent seems to live. It is a world where the overwhelming majority of Americans chooses bigotry over fairness by not granting gay marriage. Does that seem an overly harsh view of the world? It does to me. After reading his arguments and rebuttals, this is what appears to be true. Data introduced to the contrary is only evidence of the bias, ulterior motives, or thinly-disguised segregation we choose to hold close to us. In this world view opposition is intentional oppression.

But there is another world out here for us. It is a world in which reasonable and informed people have seen where introducing gay marriage in other countries has had effects they see as detrimental to the future. They see countries where gay marriage has contributed to rising illegitimate birth rates and greater numbers of cohabitating families. They see that and know that such a situation would spell disaster here with us. They know the damage to future generations that the decline of our families has caused and it takes no great imagination for them to project how much more damage could ensue. They, like me, are not sure that this will be so; none of us are prophets. But they are not convinced at all that there will be no effect, as my opponent would have them to believe. They err on the side of caution because if they guess wrong, the damage can not be undone.

They want to be fair. They do not want to hurt people they care about. It pains them to hold these beliefs because they know it will. But they hold them because they believe what Teddy Roosevelt believed when he addressed Congress in 1905:

"The institution of marriage is, of course, at the very foundation of our social organization, and all influences that affect that institution are of vital concern to the people of the whole country."


Their choice to prize societal stability over individual rights is not an easy one and some days they waver. What could it hurt?, they often think. Where is the harm in letting this happen? After all, gays must prize marriage greatly in order to fight this hard for it. But they see quotes like that from Matt Foreman and Stephen Clark, and David Chambers, and the Swedish sociologists and they realize that what is being asked for is not inclusion but destruction. They know - we all know - that the majority of those in same-sex relationships do not want to destroy marriage, but they bring with them those who do. We understand that even though the slope does not seem dreadfully slippery now, it will not take much for it to become so and we will be at a loss to stop it. Even the Fourteenth Amendment contained its own unintentional slippery slope that has led us - with good outcomes and bad - to where we are now. In our world, we know that small stones can easily become an avalanche. So, without pleasure, we choose what appears like cruelty and inequity. But even in that we wonder. Is it inequity to maintain that all of us are prohibited equally from marrying someone of the same sex? Yes, say those who accuse us of hatred and fear, it is and there is no doubt. They tell us that we can marry whom we desire so why can't they? It's unfair. It's unjust. But that doesn't ring true to us. We can't marry whom we desire. We have in the past restricted marriage for the benefit of society because we know, at heart, that this is where the interest of government lies. Our reason is anything "arbitrary and capricious". It comes from careful thought and knowing sacrifice. We hold this line because it is the one that allows the law to remain blind and to treat us all with equal regard.

The debate about gay marriage is not an ideological one. Even John Kerry said,

"I personally have taken the position I believe that marriage is between a man and a woman. That's my position. And I think that's the way you respect -- (applause) -- that's the way you respect both traditional values..."


And Howard Dean, in a Larry King interview, could not summon support for it.

KING: Let's talk about other issues. The president said he wants to codify a law that secures the fact that there will be no gay marriage. Vermont has what, gay union?

DEAN: We have civil unions, which gives equal rights -- doesn't give marriage, but it gives equal rights in terms of insurance, employment rights, inheritance rights, hospital visitation, to every single Vermonter, no matter who they are.

You know, interestingly enough, Dick Cheney took a position in 2000 in the debates that is not very different than mine. He said, this is not a federal issue. I really am inclined to leave this matter to the states, and I think we ought to let states figure out how to give equal rights to everybody in the way that they do it. So I think this is kind of a political issue at the federal level, but the power to decide these things really belongs to the state level.

KING: All right. On your own state level, if it were a referendum, would you vote for gay marriage?

DEAN: If what were -- we don't have a referendum in my state, and we have civil unions, and we deliberate chose civil unions, because we didn't think marriage was necessary in order to give equal rights to all people.

Marriage is a religious institution, the way I see it. And we're not in the business of telling churches who they can and cannot marry. But in terms of civil rights and equal rights under the law for all Americans, that is the state's business, and that's why we started civil unions.

KING: So you would be opposed to a gay marriage?

DEAN: If other states want to do it, that's their business. We didn't choose to do that in our state.

KING: And you personally would oppose it?

DEAN: I don't know, I never thought about that very much, because we didn't do it in our state for that reason. The body politic agreed in our state that it wasn't the thing to do, so we didn't do it.


The argument, fundamentally, is not even about "rights". It is about whether the social fabric of our country would be better off or worse if we allow gay marriage. This is not an easy question to ask because it forces us to divorce our reason from our feelings and we are caring, feeling humans. It is hard to tell someone they can not have what they want. But we know that we can not.

But we know something else. We know that our Democracy can thrive only if we put this important and hard question to a vote. We know that leaving this decision to a few unelected and lifelong judges, regardless of their motives or character, is the antithesis to the democratic process. Our Constitution requires the vigorous and purposeful debate this debate demands. And, if by chance we later find that we've made an error, we have the same process to repeal our decision. Abrogating our responsibility as citizens by having judges make this decision removes forever our ability to make changes of our own volition. We will always be beholden to the pleasure of future courts to decide the state of this issue. Some are content with this. Some prefer this. I do not - I can not and claim to be a responsible citizen.

While this debate continues across the country, data will compete with data, reason against reason and in the end the stronger idea will prevail. We have shown through history that when we undertake to change the Constitution, the stronger idea carries the day. And that is the way our country ought to work.

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Friday, May 21, 2004

Battle Gay Marriage - Iron Blogger Democrat - Second Rebuttal

Bravo to the Challenger! His taking the full 48 hours to respond gave him plenty of time to Google me and what I have said on this subject before. And it has given him time to actually quote the relevant portions of his links this time! Plus, he added a clever rhetorical flourish at the end of his Second Rebuttal that, I must admit, is a very nice touch.

However, the Challenger has failed, utterly, to prove his case.

For starters, his Second Rebuttal spends far too much time aggrieving perceived insults. For example, the Challenger very clearly wrote in his Opening Argument: "On the specious grounds of 'equal protection,' the Goodrich [sic] decision in Massachusetts has forced the issue as have decisions in Hawaii and Vermont." I rightly pointed out (and he agreed later!) that "equal protection" was not the sole, or even primary, reasoning behind the decision. He claims not to have written what he did, and is now upset that I called him on it. If you don't believe me, this is from his Second Rebuttal, word for word:
1) He falsely represents my "equal protection" argument regarding Brown.

Here is a quote: "For example, the Challenger gets even simple facts, like the reasoning behind the Goodridge decision, incorrect."
Notice he thinks I'm talking about Brown; I'm obviously talking about Goodridge and what he said about it.

And, if it please the court, I would like to point out the irony of 1) the Challenger's offense at these perceived slights when he keeps talking about "My First Pop-Up Book of . . ." and 2) his repeated failure to get the name of Goodridge v. Dept. of Public Health correct and then sticking me with the [sic] tag.

Another example: Apparently, when I read this
Once marriage is defined as it as always been in the Constitution it will be beyond the reach of any capricious court decision. People will have a chance to discuss and debate the issue much as we are right here. That's healthy and necessary. It's what a democracy ought to be doing with important issues. That can't happen once a court has put the issue beyond the democratic process. (from the Challenger's Opening Argument)
I was supposed to read this
During the ratification process there must be debates about the subject in every single state leading up to several votes on the issue. If the amendment is passed, it is subject to recall by the same process of debate and vote by the people of this country as it took to pass it in the first place. (his rephrasing from the Second Rebuttal)
Now, I'm no English major--no, wait, I am an English major!--but these two paragraphs sound nothing alike. The first is clearly about an amendment that has passed; the second about an amendment being considered. Again, as with the whole of his point number 1, the Challenger does not see in his own writing what the rest of us do. I'm debating what the Challenger wrote; he claims I don't understand the democratic process. Who, exactly, "has crafted a lengthy list of falsehoods, misstatements about what I've written, and personal attacks disguised as reasonable debate"?

Again, the Challenger has failed, utterly, to prove his case.

Beyond that, the Challenger does not bother to refute any of my case law arguments except to rehash his weary "equal protection" argument. He writes, again, "The law is pretty clear: you can't marry someone of the same sex. There is no separation here. Everyone is prohibited equally; no one is given preference." He ignores what I wrote. In case he's forgotten, I replied,
But what if we turn the Challenger's question around? Instead of asking "Can Iron Blogger Democrat marry another man?" (answer, no) and "Can IB Dem's friend Michael marry another man?" (also, no), we should ask "Can Iron Blogger Democrat marry the person he loves?" (answer, yes--and I did!) and "Can IB Dem's friend Michael marry the person he loves?" (the answer, still, is no). How is that equal?
The Challenger's response? Nothing.

That's right: the Challenger has failed, utterly, to prove his case.

Besides, by dragging in the case law to begin with, on top of starting an argument he could not (and did not) win, the Challenger only distracted himself. The Challenger and I both agree on a core principle: The only way to stop gay marriage is through a constitutional amendment. The Challenger thinks such an amendment is a good and necessary thing; I disagree.

It's been interesting to watch the "burden of proof" argument develop in the comments: Conservatives claim that since I want to "change the definition of marriage from what it has always been"--and don't get me started on that!--the burden of proof rests with me. In other words, I should be extolling the virtues of gay marriage.

But I don't think it's that simple. For one, as implied just above, I don't believe that marriage as it exists now (everywhere outside of Massachusetts) is "as it always has been." For another, I submit that the burden of proof must fall to the Challenger in this case. After all, if the State is going to curtail my (or anyone else's) rights, they'd better have a compelling case for doing so. Remember, one of the other things that the Challenger and I agree on is that there are strong constitutional restrictions on the scope and reach of the State.

I refer you back to my First Rebuttal; the case law I cited then--from Loving to Romer and Lawrence--showed unquestionably that preventing gay marriage is a curtailing of rights. Marriage is, according to Loving, "one of the basic civil rights of man." The Challenger never, er, challenged that. The pro-amendment side must bear the burden of proof on this.

The Challenger again relies on the same studies and same sources that I challenged in my First Rebuttal. I don't dispute the Heritage Foundation's statistics (though I wonder what studies and statistics they opted not to make charts for), nor, in fact, the obvious conclusion that "a child in a traditional family is likely to be better off than one who is not." But I said it then and I'll say it now: The Heritage Foundation's clever little charts demonstrate correlation, not causation.

(The Challenger seems offended that I said the Heritage work was not "original research." I only said so to rebut his Opening Argument assertion that "The Heritage Foundation produced a series of studies showing the effects the slow dissolution of marriage on children and parents." Again, he misreads my debating his actual words as personal attacks.)

And Stanley Kurtz--don't get me started! His "study" of Scandinavian marriage was published in The Weekly Standard, not a peer-reviewed journal. He held anti-gay prejudices, based not in "science" but his own standards of morality (really, read some of his earlier writings), before he started. And there is no easy way to map the Scandinavian results onto this country, as the study shows that the easy availability of hetero- and homosexual civil unions undercut marriage; we do not have a history here of civil unions!

Let me try it another way:
Scandinavia (according to Kurtz):
civil unions ⇒ gay marriage ⇒ fewer marriages in general ⇒ more single or cohabiting parents
The United States (projected by the Challenger):
                       gay marriage ⇒ fewer marriages in general ⇒ more single or chabiting parents
Do you see what's missing? We have not spent that last two decades, as have some Scandinavian countries, eroding the need for marriage with civil unions.

It should be obvious by now; the Challenger has failed, utterly, to prove his case.

I will salute the Challenger, though, for finding some additional research on his point. He doesn't make it clear that the new quotes from Kurtz come from the "study" that was published in the Weekly Standard that I dug out in my First Rebuttal. To be fair, the Challenger does link to a copy of it that appeared at the Catholic Educator's Resource Center. Either way, this "study" has not been peer-reviewed or vetted by other sociologists.

Should we talk about Sweden, Challenger? Okay, let's. I'll even let Kurtz do the talking for me. This is from the Weekly Standard article linked above, emphasis mine:
Scholars take the Swedish experience as a prototype for family developments that will, or could, spread throughout the world. [. . .] The Swedes have simply drawn the final conclusion: If we've come so far without marriage, why marry at all? Our love is what matters, not a piece of paper. Why should children change that?

Two things prompted the Swedes to take this extra step--the welfare state and cultural attitudes. No Western economy has a higher percentage of public employees, public expenditures--or higher tax rates--than Sweden. The massive Swedish welfare state has largely displaced the family as provider. By guaranteeing jobs and income to every citizen (even children), the welfare state renders each individual independent. It's easier to divorce your spouse when the state will support you instead. [. . .]

There are also cultural-ideological causes of Swedish family decline. [. . .] Sweden is probably the most secular country in the world. Secular social scientists (most of them quite radical) have largely replaced clerics as arbiters of public morality. Swedes themselves link the decline of marriage to secularism. And many studies confirm that, throughout the West, religiosity is associated with institutionally strong marriage, while heightened secularism is correlated with a weakening of marriage.
Kurtz almost makes it too easy: He himself identifies the ways in which his own analysis is inapplicable to the United States! Just to be clear, the U.S. does not have an overwhelming welfare state (despite some conservatives' alarmist rhetoric); we are not so overtaxed (again, despite some claims to the contrary); and this country is one of the least secular in the world: "About 46 percent of American adults attend church at least once a week, not counting weddings, funerals and christenings, compared with 14 percent of adults in Great Britain, 8 percent in France, 7 percent in Sweden and 4 percent in Japan."

It's also worth noting that Kurtz, too, forgets the rule about correlation not implying causation. He suggests that "gay marriage is both an effect and a cause of the increasing separation between marriage and parenthood" (emphasis mine). Having read his "study," I might almost buy that same-sex marriage may be more likely in countries with high out-of-wedlock births, but he does not conclusively prove that it is a cause, merely that, in some countries very different from our own the two have occurred around the same time.

By the way, I loved this bit from the Challenger's Second Rebuttal:
Now, I'm no lawyer and I had a real tough time with Google today, so I couldn't find the term for the fallacy I wanted. I call it "Don't hate the player; hate the game."
Yes, that's from the same Challenger who wrote first about my sources, "The APA, no friend to maintaining traditional marriage [. . .]" I don't know the Latin for that fallacy, either, but I can think of some Greek: hypocrisy.

You see where I'm going here? The Challenger has failed, utterly, to prove his case.

I've already gone longer than I'd hoped, but let me address the "slippery slope" again. One bigamist in Utah (surprise!) does not a slope make. And where, exactly, in these Scandinavian countries that have gone to hell in a handbasket since gay marriage, are the incestuous relationships, bigamists, pedophiles, man-on-doggers? There are none!

Dahlia Lithwick, who must be an Iron Blog reader and knew this would come up, said it well in Slate this week:
Just because advocates of polygamy have tried to leverage the Lawrence decision to support their cause doesn't mean there are no differences between the two marginalized groups. And it's just not an argument against gay marriage to say, "I told you those bigamists would use this in court!" It would be stupid for the bigamists not to try.

One of the most persistent complaints of conservative commentators is that liberal activist judges refuse to decide the case before them and instead use the law to reshape the entire legal landscape for years to come. The Massachusetts Supreme Court, in finding that the ban on gay marriage violated the state constitution, did exactly what good judges ought to do: It confined its reasoning to the case before it, rather than addressing the myriad hypothetical future cases that may be affected by the decision. Opponents of gay marriage should consider doing the same.
So, in sum, the Challenger has presented no compelling evidence that gay marriage will harm American society and therefore the right to marry must be infringed upon. He has not met his burden of proof. The Challenger has failed, utterly, to prove his case.

What are we left with, then? The Challenger's Second Rebuttal sought to impugn my biases, but where he sees slights and insults, I see direct responses to his own assertions and actual statements. The Challenger is the one coming back at me with ad hominem. The Second Rebuttal also continued the Challenger's attempts to assert a causal relationship between gay marriage and family decline, yet even if it can be proved to have happened elsewhere (a big if), the very author he cites for that proof makes it clear that the United States is not like those other countries. Finally, the Second Rebuttal does nothing to challenge my assertion that marriage is a fundamental right, and does not even come close to presenting a convincing case for abridging it.

In short, the only impressive thing about the Challenger's Second Rebuttal is that clever rhetorical flourish. Unfortunately for him, that's not enough to carry the day.

Respectfully submitted,
Jay Bullock, Iron Blogger Democrat
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Thursday, May 20, 2004

Ch-Ch-Changes

I think we've reached a happy middle-ground. Now the 6 readers who complained can at least read the battles. :)

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Battle Gay Marriage - The Challenger - Second Rebuttal

You know, it's not enough that my opponent barely took this debate seriously enough to answer the topic in more than one-word answers. When he did decide to answer, he cut and pasted most of a post he wrote nearly three months ago to serve as his opening argument. He gussied it up a bit by calling me a segregationist and when I chafed (and wouldn't you?) he responded by saying that I wasn't a segregationist, merely that I was exactly like one.

That's the sort of serious thought and consideration I'm learning to expect from him in this debate. I expected better considering the valuable assistance he's gotten in the comment sections of our posts thus far. He might have done better cutting and pasting from those instead of what he's foisting on us now.

It's unfortunate for us that when he does get around to attempting a rebuttal, he has all sorts of problems with basic facts, reading what I've written, and keeping glaring fallacies out of his arguments.

1) He falsely represents my "equal protection" argument regarding Brown.

Here is a quote: "For example, the Challenger gets even simple facts, like the reasoning behind the Goodridge [sic] decision, incorrect".

But at no point in either of my posts did I say that.

Here is what I said:

But, I can almost hear him asking as he leafs through his "My First Pop-Up Book on Constitutional Rights", what about Brown? What about "separate but equal"? Well, I'm glad he brought it up. If you look into the court decision, you'll find the court brought to bear a very powerful principle: that the law has to treat everyone equally. Period.


I'm not a teacher, like my opponent, but I do know the difference between "a" and "the". I said, and I'll repeat that the court used the reasoning that the law must treat everyone equally in the Brown decision. But don't take my word for it. Use IBDem's words.

The majority of the majority held instead "that the Massachusetts Constitution 'affirms the dignity and equality of all individuals,' and 'forbids the creation of second-class citizens.'" Specifically, the justices felt that prohibiting marriage was a violation of due process, in addition to equal protection...[Emphasis Mine - J]


2) He doesn't seem to understand the meaning of the word "untouchable".

His quote:

There are no "untouchable individuals" in this democracy. Every justice on the Massachusetts SJC is appointed by an official directly elected by the people of that state.


Pray, tell, how can someone appointed to a position for life not be considered "untouchable"? That is, as far as my dictionaries go, as close to a definition of the word as you're ever going to find. It could be that the section of his dictionary must have been torn out or something, since I've shown in my First Rebuttal and here that he also does not know the meaning of the word "untenable" either. It appears there was no companion "My First Pop-Up Book of Words that Begin with the Letter 'U'".

3) He does not apparently understand the democratic process.

His quote:

My mind is still trying to wrap itself around how, exactly, amending the Constitution to ban gay marriage would not leave "people [. . .] at a loss to change the decision, [leaving] no productive reason to have a real debate." A court decision, whether by the Massachusetts SJC (in Goodridge [sic]) or the US Supreme Court (in Roe and others on abortion) is always subject to change...

...The Challenger would have us believe that once we pass an amendment to preserve the status quo, we can talk and talk all we want."


Well, yes, that it exactly what I want you to believe because it is true. During the ratification process there must be debates about the subject in every single state leading up to several votes on the issue. If the amendment is passed, it is subject to recall by the same process of debate and vote by the people of this country as it took to pass it in the first place.

On the other hand, a court decision involves the presentation of a case by a few lawyers and deliberations by a few people. Overturning such a decision involves the same number of few people who may elect not to even hear the case.

Which one of these seems more in line with the democratic process to you? I, personally, prefer the option that involves debate and voting by all of us and the option to do it again later if we want then the one that closes useful debate and leaves the decision in the hands of a bucket full of people.

4) His dismissal of the Kurtz and Heritage studies contains a serious fallacy.

Now, I'm no lawyer and I had a real tough time with Google today, so I couldn't find the term for the fallacy I wanted. I call it "Don't hate the player; Hate the game". What my opponent does is playa-hating not seen since Stella went out looking for her groove.

Here's my favorite ally in the argument, my opponent....again:

two sources he cites--the Heritage Foundation and Kurtz--are among the leaders in the social conservative movement in this country. They have an agenda that they do not even attempt to mask. But I will address the substance of their arguments...


So I waited eagerly for him to do this. And I waited. I waited some more. I went and got a sandwich. I came back and refreshed my browser because, hey, maybe he posted a Special Bonus Rebuttal Fresh with Substance Addressing (mmmm....dressing).

But no. Here's what I found.

Having read Kurtz's testimony, and other Kurtz writings the Challenger links to, I have a hard time taking the study seriously, as Kurtz was espousing the very same conclusions long before he finished his study.

and

Even if we give him the benefit of the doubt that he'd been working on his Scandinavia study for three years and already had evidence to make that assertion in 2001, we still must be skeptical; in the same opinion piece just cited, he writes that "people who imbibe the ethos of courtship can't help but feel that there's something not quite right about the idea of a homosexual marriage." Whether or not there is real harm to the "institution" of marriage, Kurtz will argue against gay marriage because there's "something not quite right" about it!


So his first attempt to "address the substance" appears to be that Kurtz already had an opinion and did a study to back it up. He...and stick with me, folks, this is a real zinger...found evidence to back up something he already believed was true!

Whoa! Hold everything! Stop the presses! You're telling me that a scientist (and Kurtz is a sociologist) believed something was true, then proved it? I may just keel over and die! Nothing like this has ever happened before in the history of science. Ever.

Ever, ever?

Ever, ev....wait. No. That's wrong. It appears that science is just chock full of people who believed something was true, then went out and proved it. How about Percival Lowell's predicting Pluto? How about Heinrich Schleimann discovering Troy? How about the discovery of nearly every single subatomic particle we've found?

But back to my opponent.

...we still must be skeptical...


Must we? Let's see why we must.

...in the same opinion piece just cited, he writes that "people who imbibe the ethos of courtship can't help but feel that there's something not quite right about the idea of a homosexual marriage." Whether or not there is real harm to the "institution" of marriage, Kurtz will argue against gay marriage because there's "something not quite right" about it!


No, as he has said in article after article, he argues against it because he has measurable evidence that gay marriage is a causative factor in marital decline and out-of-wedlock births.

But eventually, my opponent does get to an attempt to address the substance of Kurtz' argument. It is this:

The Scandinavian countries Kurtz cites in his studies all implemented civil unions, for hetero- and homosexual couples, before moving to full gay marriage. That established a sense of equality regarding CUs--both gay and straight couples had access to this option...The only state in this country with a CU law is Vermont, and it has denied potential CU status to heterosexual couples. In other words, only gays have CUs, and only straights have marriages. If CUs were not necessary--i.e., gay marriage becomes a reality--then there is no concern, first of all, about second-class citizenship (I refer you back to my drinking-fountain analogy), but, more importantly, no impetus for heterosexual couples to opt for anything other than marriage--indeed, no choice at all in the matter.


Now what I think he is saying here (and others have said in the comments) is that because CUs were an option, it's no surprise that heterosexual couples weren't getting married because they had another easier option. If marriage were the only option, then everyone would choose marriage.

Except that my opponent has forgotten one option that remains - cohabitation without marriage. And that is the one that more and more couples in Scandinavia are taking. Kurtz addressed this, and the show of cause in addressing one of his critics:

According to Spedale, Scandinavian gay marriage is a product of "increasing respect for diverse family structures." Sure. But doesn't gay marriage then breed further acceptance of "diverse family structures" — like the parental cohabitation of which Spedale is so enamored? Apparently so, since Spedale himself keeps saying that the approval of gay marriage has garnered ever increasing public support for the idea of family change.

Spedale argues that Scandinavian gay marriage has made society take marriage more seriously. Gay couples marry very late, says Spedale. With social pressure for marriage gone, gays only marry when they are absolutely sure they've found their life partners. That stance, says Spedale, has probably increased respect for marriage in Scandinavia.

But what Spedale is really describing is reinforcement of the mentality at the root of marital decline. The problem with Scandinavian marriage is that parents aren't pressured to marry. Instead, parents wait until long after their children are born to decide if they've found their permanent life partners (and often break up before then). Despite his denials, Spedale is actually saying that gay marriage both flows from — and contributes to — this ethos of weakened marriage. And that is exactly my causal point.


Which leads to IBDem's next problem - the Heritage Foundation study.

His problem is that the foundation is a conservative group and didn't do original research but got their facts and compiled them to make their point. By that logic, though, you should probably ignore his Opening Argument and First Rebuttal since he also has an agenda and didn't do "original research". For that matter, you can pretty much throw my posts out the window, too. And the ones form the last debate also. Hell, you might as well ignore every debater who has not done an original statistical study for their debate! But of course, that's ridiculous.

My problem with my opponent is that never bothers to challenge the statistics. He can't say that they were improperly applied or that important data was left out of them. All he has is another playa-hater moment. He does take a Mr. Burns' like feeble swipe at my conclusion, though. Let's put his anecdotal evidence aside as he suggests, first. We all know anecdotal evidence can not be used to prove a case. There will always be an exception to a rule, right? Besides, his anecdotes don't actually address the point I made originally.

He writes:

If working-poor mothers had better access to quality childcare and public schools, would it be true that "Development Problems Are Less Common in Two-Parent Families" or "Children in Intact Married Families Are Less Likely to Repeat a Grade"? If working-poor mothers had better access to quality health care, would it be true that "Non-Married Women Account for 80% of All Abortions," or "Adolescents Are Less Healthy in Broken Families"? And here's one chart that just gets a big "duh," though a solution is not so easy as tuning up our health-care and child-care systems: "Married Families Have Higher Incomes." Perhaps income is the better correlation than family status, then. Need I remind anyone of the glass ceiling? Finally, absolutely none of the Heritage Foundation's work here directly relates to gay marriage.


All of these may, taken in isolation, be completely true (but might not be also). Each of these charts further proves the point. Pick a chart, any chart, and you'll see that a child in a traditional family is likely to be better off than one who is not. Take them together and they are devastating. Where are you more likely to find a poor child? In a non-traditional family. Where are you more likely to find a child addicted to drugs, in trouble at school, in jail? Non traditional families. Where are you more likely to find a child in poverty? A non-traditional family. Might this change in the future? It's possible. But it's true in the here and now - when we are considering doing something that has already put multitudes of children into the family situations that we see are bad for them here. Indeed, as Kurtz notes the damage is being seen similarly in Sweden.

Despite the reluctance of Scandinavian social scientists to study the consequences of family dissolution for children, we do have an excellent study that followed the life experiences of all children born in Stockholm in 1953. (Not coincidentally, the research was conducted by a British scholar, Duncan W.G. Timms.) That study found that regardless of income or social status, parental breakup had negative effects on children's mental health. Boys living with single, separated, or divorced mothers had particularly high rates of impairment in adolescence. An important 2003 study by Gunilla Ringbäck Weitoft, et al. found that children of single parents in Sweden have more than double the rates of mortality, severe morbidity, and injury of children in two parent households. This held true after controlling for a wide range of demographic and socioeconomic circumstances.


My opponent promised to address the substance of the arguments the study and charts presented, but he did not. In fact, he barely tried.

5) He seems a bit wobbly on how to compare statistics.

Okay, let's go back to the charts a moment. I promise I'll be brief on this. The charts show a series of percentages out of a total number of children. We're all familiar with this sort of thing. My opponent, though, goes to the Netherlands for his attempted refutation. He says that, "...head to head against where we are now in child mortality, infant mortality, teen pregnancy, adolescent drug abuse, (also here), child abuse--you name it, the Netherlands ranks better than the U.S. If anything, these data show that with a greater acceptance of gay marriages and partnerships, we might be better!"

And he accused me Kurtz of comparing apples and oranges? You might see where I'm going with this, but I'll make it explicit. He's attacking my percentages with total numbers. That just doesn't work. he ought to be ashamed for trying.

6) He's "arbitrary and capricious" while accusing me of being so then misses some more facts.

Remember this quote from the Goodrich case?

...[t]he Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious"...


Well, that's what he's accusing me of doing here.

But he's the one that's doing so.

Let's compare a couple quotes. Here's one of mine, "The law is pretty clear: you can't marry someone of the same sex. There is no separation here. Everyone is prohibited equally; no one is given preference."

And here's one of his, "Well, the Challenger is right that I would be willing to deny marriage rights in the cases he lists above--and many more Rick Sanctorum could think of (point of personal privilege: the Challenger slammed David Crosby and Melissa Ethridge in his Opening Argument; this just seems fair payback to me)--for the same reasons that these unions have been prohibited previously: inherently unequal partnerships, lack of consent, and others."

So which of these seems to you to be "arbitrary and capricious? It looks to me that my opponent is willing to draw all sorts of lines about who can and can't get married and use all sorts of reasons to do so - cutting across gender lines, age lines, numbers of partner lines, you name it!

But perhaps we'll cut him some slack. he was making a point here about my "slippery slope" argument.

So, what about that? Where are the polyamorists? Where are the folks who are trying to dismantle the institution of marriage and make that slope even more slippery? My opponent believes without a doubt that "they just aren't there".

Well Dr. Warren Throckmorton has found a trio in Utah suing to have their polyamorous marriage granted.

Matt Foreman of the National Gay and Lesbian says "[o]ur role is to be progressive, to push the envelope, so that more pragmatic groups can come in behind and get more from the space we’ve created. And later in the same interview says "...we’re also hopeful that we create different ways in which people can form relationships and families that don’t come with all the baggage and the downsides of marriage."

Danish sociologists Wehner, Kambskard, and Abrahamson say "Marriage is no longer a precondition for settling a family--neither legally nor normatively. . . . What defines and makes the foundation of the Danish family can be said to have moved from marriage to parenthood."

Stephen Clark, the legal director of the Utah ACLU, has said, "Talking to Utah's polygamists is like talking to gays and lesbians who really want the right to live their lives."

David Chambers of the University of Michigan Law School is quoted as saying, "[W]e should respect the...claims made against the hegemony of the two-person unit".

Not only are they there, they're trying to give us a shove down that slope.

Far from being a rebuttal, my opponent has crafted a lengthy list of falsehoods, misstatements about what I've written, and personal attacks disguised as reasonable debate. At the beginning of his First Rebuttal he apologizes for the length of his post.

He should have apologized for more than that. Much more. I'm not saying his rebuttal is complete garbage, just that it's "merely analogous to one".

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Tuesday, May 18, 2004

Battle Gay Marriage - Iron Blogger Democrat - First Rebuttal

Well, the Challenger has given me plenty to work with in his Opening Argument and First Rebuttal. And, given that I have brevity issues to begin with, this is quite long (apologies, judges). I know that length does not necessarily equal strength of argument, but I believe that this post will demonstrate, unquestionably, how the Challenger's arguments just don't hold up to scrutiny. I will mix and match between the Challenger's two posts, as I think I've got an order here that makes sense.

First of all, I had no idea how the Challenger would approach the subject when I wrote my Opening Argument; I had to suspect he'd favor either the FMA or civil unions over marriage, or else it would hardly be a debate. But I was not sure what his tactic would be. I have to say I am glad he did not rely on religion to make his Opening Argument. I threw in a pre-emptive paragraph on that in my Opening Argument, mostly because the Chairman's questions to open the Battle suggested it would be an issue. However, the First Rebuttal does take me to task for stating, rightly, that we live in a secular nation. But I will not belabor this issue, as the Challenger's Opening Argument made it clear that religion is tangential to the debate. (The opening paragraph of his First Rebuttal implies that I relied almost exclusively on this argument when, in fact, I barely considered it.)

I was also glad to read this from the Challenger:
I favor a Constitutional Amendment to ban gay marriages. I fully understand that it is a radical step but I see no other alternative. I don't support it out of mindless cruelty or because I want people to feel pain but because allowing it will be emphatically bad for our society.
Throughout his Opening Argument, the Challenger has been thoughtful and refrained from inappropriate rhetoric. The First Rebuttal was not so kind, though. It is possible that the inflammatory nature of that First Rebuttal was prompted by my comparing those who favor the FMA to those who favored segregation; however, I stand by my assertion that the FMA would "enshrine bigotry in the Constitution." I'm not saying the Challenger is bigoted, but the result of such an amendment would be de facto bigotry. He is wrong in asserting that I called him a segregationist; he is merely analogous to one.

Before I come back to that, though, let me and my "scary-talented brain" address the Challenger's other points. He is right to recognize in his Opening Argument that the Defense of Marriage Act (DOMA) will be challenged in the face of the Massachusetts SJC's Goodridge decision, and it will be found wanting. So he is right that the only way to ensure that no gay marriage happens--and if it should, that it never spreads beyond a rogue state or district--is with this amendment.

But it is from here that we disagree, and I feel that the Challenger has not adequately made his case. For example, the Challenger gets even simple facts, like the reasoning behind the Goodridge decision, incorrect. Only Justice Greaney opined that the case could be resolved based on equal protection, as the Challenger claims the court did, in his concurring opinion. The majority of the majority held instead "that the Massachusetts Constitution 'affirms the dignity and equality of all individuals,' and 'forbids the creation of second-class citizens.'" Specifically, the justices felt that prohibiting marriage was a violation of due process, in addition to equal protection, and a violation of the principle that
[t]he Massachusetts Constitution requires, at a minimum, that the exercise of the State's regulatory authority not be "arbitrary or capricious." [. . .] Under both the equality and liberty guarantees, regulatory authority must, at very least, serve "a legitimate purpose in a rational way"; a statute must "bear a reasonable relation to a permissible legislative objective."
The court found no case made by the state to limit marriage to heterosexual couples to be a "permissible legislative objective." (Read the full verdict--warning, very long and legalese-filled link.)

The Challenger (and several commenters) pointed out a part of my Opening Argument that I now wish I had back to rephrase. I'm glad we all accept that the US Constitution is designed to limit the scope and power of the State; what I wish I could rephrase is when I wrote that the Constitution also "grants and extends rights to individuals." Though we can disagree on semantic grounds, it is very clear that the Bill of, um, Rights is designed to explicitly protect the rights of the citizens of this country. Further amendments have done the same--granting (or protecting, or perhaps clarifying) such things as the right of African Americans, women, and 18-20-year-olds the right to vote.

But, again, this is tangential to the debate. When we start talking about rights, the Challenger sums up his argument in a question: "So why does my opponent believe that marriage is a right?" he asks. Then he answers, "I can't begin to say. It's certainly not written, or even implied, in the Constitution." Well, the right to privacy, for example, is not defined in the Constitution, though certainly it exists (and has been made explicit in case law at least as far back as Griswold v. Connecticut). The Bill of Rights mentions that we should all have access to an attorney if we are accused, but it wasn't until recently that we learned that we also had the right to know we had the right to an attorney.

In other words, a right's absence from the Constitution does not mean the right does not exist, and, in a few more words, the Supreme Court, as arbiters of all things constitutional, can make clear when the unstated (and, one might say, inalienable) rights are being violated. Such is the case with marriage. 1967's Loving v. Virginia, while striking down anti-miscegenation laws, found that
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. [. . .] To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
I quoted this whole section to show that I do, in fact recognize, that the decision is explicitly about race and not about sexual orientation. But the Challenger here cannot ignore that first sentence: Marriage is, in fact, a right.

The Challenger also invokes the Fourteenth Amendment and equal protection/ equal application. The Challenger's argument of equal application sounds eerily familiar; this is from the Loving decision, emphasis mine:
Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious discrimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere "equal application" of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations, we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose.
Now, you can argue that, as the Fourteenth Amendment is explicitly about race, this line of reasoning, found wanting by the court in Loving, is acceptable here. But what if we turn the Challenger's question around? Instead of asking "Can Iron Blogger Democrat marry another man?" (answer, no) and "Can IB Dem's friend Michael marry another man?" (also, no), we should ask "Can Iron Blogger Democrat marry the person he loves?" (answer, yes--and I did!) and "Can IB Dem's friend Michael marry the person he loves?" (the answer, still, is no). How is that equal?

The Challenger cites Eugene Volokh, no doubt more of an authority on the law that I am. Two things, however. One, the Volokh opinion here on Loving considers that case in the light of "[l]ater Supreme Court cases [that] held that sex classifications are similar to race classifications." Rightly, he concludes that there is very little evidence to suggest that sex and race, while similar, are equal. Volokh even goes so far as to set up a chart to demonstrate that separate men's and women's restrooms are a very different animal from "whites only" restrooms. The problem is, when it comes to gay marriage, Loving should be considered not in light of cases regarding sex but in light of cases regarding sexual orientation, the most obvious of which would be last year's Lawrence v. Texas.

Two, while Eugene Volokh is an authority, I will go the Challenger one better: Antonin Scalia. In Lawrence, Scalia writes (emphasis mine):
Justice O'Connor [in her concurring opinion] simply decrees application of "a more searching form of rational basis review" to the Texas statute. [. . .] Nor does Justice O'Connor explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "�'a ... desire to harm a politically unpopular group,'�" are invalid even though there may be a conceivable rational basis to support them.

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples.
Scalia was furious after the Lawrence decision because O'Connor's concurring opinion left the door wide open for an argument against banning same-sex marriage (and other items in the "homosexual agenda"). O'Connor's opinion was built not only on Loving but on other cases, including Romer v. Evans, the 1996 case, decided with the same margin and same three dissenters as the later Lawrence, which found that the State could not single out a class of citizens, in this case gays and lesbians, to deny their rights. From the Romer opinion (again, my emphasis):
Amendment 2 [the law overturned here] confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive [. . .].

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. [. . .] Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.
The Boston Globe ran an excellent piece on this idea last Sunday.

The Challenger does not argue for civil unions as an alternative to gay marriage, nor do I think they are a good compromise. The individual, disaggregated benefits associated with marriage (and there are more than 1000 of them) can all be conferred without marriage, but as long as there is a two-tiered system, there will never be true equality. I imagine that the water from the "Colored Only" drinking fountain probably tasted the same (literally, if not poetically) as the water from the "Whites Only" drinking fountain. Social equality and social acceptance will never come as long as there are two classes.

This leads, interestingly enough, into the research cited by the Challenger from Stanley Kurtz. (I won't play "My Source is Better than Your Source," but I will ask you to consider that the two sources he cites--the Heritage Foundation and Kurtz--are among the leaders in the social conservative movement in this country. They have an agenda that they do not even attempt to mask. But I will address the substance of their arguments.) Kurtz cites his study of gay unions in Scandinavia. The Challenger does not directly quote, but summarizes:
His contention, summarized, is that the inclusion of gay marriage has further deteriorated the institution so that heterosexual couples are now less likely to marry than before. The notion that has taken hold there is that if anyone can marry, then how important can the institution be? In Scandinavia, it's become not important at all. Well over 50 percent of all children there now are born out of wedlock. The trend toward parental cohabitation, Kurtz found, has moved into historically "conservative" neighborhoods since the adoption of gay marriage.
Having read Kurtz's testimony, and other Kurtz writings the Challenger links to, I have a hard time taking the study seriously, as Kurtz was espousing the very same conclusions long before he finished his study. The Scandinavian study was published in the The Weekly Standard just two months before his testimony to Congress, but years after he had been penning such gems as
Marriage is one of those institutions we take for granted. The rationale for marriage isn't so much written down somewhere as buried in the thing itself. That's why [. . .] no other right-thinking liberals can see the connection between the rise of the movement for gay marriage and the decline of heterosexual courtship and marriage. But the link is there.
Even if we give him the benefit of the doubt that he'd been working on his Scandinavia study for three years and already had evidence to make that assertion in 2001, we still must be skeptical; in the same opinion piece just cited, he writes that "people who imbibe the ethos of courtship can't help but feel that there's something not quite right about the idea of a homosexual marriage." Whether or not there is real harm to the "institution" of marriage, Kurtz will argue against gay marriage because there's "something not quite right" about it!

But I segued into Kurtz from civil unions, and I should actually make my point before I move on: The Scandinavian countries Kurtz cites in his studies all implemented civil unions, for hetero- and homosexual couples, before moving to full gay marriage. That established a sense of equality regarding CUs--both gay and straight couples had access to this option. The only state in this country with a CU law is Vermont, and it has denied potential CU status to heterosexual couples. In other words, only gays have CUs, and only straights have marriages. If CUs were not necessary--i.e., gay marriage becomes a reality--then there is no concern, first of all, about second-class citizenship (I refer you back to my drinking-fountain analogy), but, more importantly, no impetus for heterosexual couples to opt for anything other than marriage--indeed, no choice at all in the matter. Comparing this situation, where different-sex couples have never had the option of a CU, to the situations Kurtz studies is really an apples to oranges thing.

The Challenger combines this research (which I again aver is suspect based on Kurtz's politics and likely not applicable to this country) with some more research to make his assertion that gay marriage will weaken marriage in general and, thereby, society as a whole.
The Heritage Foundation produced a series of studies showing the effects the slow dissolution of marriage on children and parents. They found, among other things, that children in non-married households are more likely to be poor, to suffer serious physical abuse, to be expelled from school, to use marijuana and cocaine, to carry weapons, and to end up in prison as adults. There is no dispute that children are better off growing up in two-parent, married households than they are in any other sort of living arrangement. That marriage has a definable advantage to society makes it worthy of governmental support and encouragement.
First of all, what the Heritage folks did was not original research, but cherry-picking statistics from government and independent studies to make charts to illustrate the findings. While I agree that two-parent homes are far better for children that single-parent homes (remember that; it will be important later), it is also important to note that old statistical saw: Correlation does not imply causation. Children with problems or in poverty appear in two-parent homes as well, and many, many single mothers (or fathers) do a fine job of raising children who are happy and well adjusted. I work with children every day, many from "non-traditional" (though seldom gay) households, and there is as much variation in these children as you would expect in any population, whatever their parentage.

Anecdotal evidence aside, though, you have to wonder what other factors may be at work in these situations cited by the Heritage Foundation: If working-poor mothers had better access to quality child care and public schools, would it be true that "Development Problems Are Less Common in Two-Parent Families" or "Children in Intact Married Families Are Less Likely to Repeat a Grade"? If working-poor mothers had better access to quality health care, would it be true that "Non-Married Women Account for 80% of All Abortions," or "Adolescents Are Less Healthy in Broken Families"? And here's one chart that just gets a big "duh," though a solution is not so easy as tuning up our health-care and child-care systems: "Married Families Have Higher Incomes." Perhaps income is the better correlation than family status, then. Need I remind anyone of the glass ceiling? Finally, absolutely none of the Heritage Foundation's work here directly relates to gay marriage.

Taken in conjunction with unlikelihood that Kurtz's assertions would even hold true, what can this mean for the U.S. if we allow gay marriage? Well, worst case, we could end up like the Netherlands, and, let's face it, the Dutch seem to be doing pretty well. Head to head against where we are now in child mortality, infant mortality, teen pregnancy, adolescent drug abuse, (also here), child abuse--you name it, the Netherlands ranks better than the U.S. If anything, these data show that with a greater acceptance of gay marriages and partnerships, we might be better!

I don't really believe we'll automatically get better, but I think the argument that gay marriage is the first step down that slippery slope to chaos is tenuous at best, and untenable, at worst.

Speaking of slippery slopes, the Challenger, somehow, got into my "scary-talented brain" to accuse me of things. He writes,
In fact, I doubt seriously that his principles would extend as far as to allow these same "rights" to any other group of people who wants to marry two or three other people at the same time, or their brothers or sisters, or even juveniles. He is willing to draw that line but not this one. But I wonder, since he belives that marriage is a right, on what grounds he would deny that to others.
This is the classic unwarranted extrapolation fallacy, with an interesting twist: The Challenger puts all of these things into my voice. More commonly, opponents of same-sex marriage run this list off themselves as what is sure to follow once we open these floodgates. Well, the Challenger is right that I would be willing to deny marriage rights in the cases he lists above--and many more Rick Santorum could think of (point of personal privilege: the Challenger slammed David Crosby and Melissa Ethridge in his Opening Argument; this just seems fair payback to me)--for the same reasons that these unions have been prohibited previously: inherently unequal partnerships, lack of consent, and others. But let's look around the world to those countries that do have same sex unions--the dopey Dutch, the staid Canadians, the, er, Belgians. Where is the NAMBLA crowd beating down the doors? Where are the polyamorists? They just aren't there, and this slippery slope argument is distracting from the real issue.

The real issue is that gay marriage should not be prohibited, certainly not by amending the Constitution. Current legal precedents indicate that other attempts to ban gay marriage by DOMA-type laws or other proscriptions will be found wanting. Evidence that gay marriage is damaging to society or the "institution" is remarkably suspect. And allowing gays and lesbians to marry has stirring economic benefits (a 10% increase in spending on weddings wouldn't hurt, eh?) plus the positive effect of strengthening bonds between partners in a family and encouraging stable homes for the children of these relationships. Perhaps it can even lessen the unfair stereotype of gays and lesbians as forming few lasting relationships and instead engaging on promiscuous behavior. And, as I pointed out earlier, it would make those more than 1000 rights and privileges available to those loving partners who deserve them.

I've saved the Challenger's penultimate paragraph from his opening argument for last, because I think it represents the overall flaw in his argument:
So we come to why amending the Constitution is necessary. Once marriage is defined as it as always been in the Constitution it will be beyond the reach of any capricious court decision. People will have a chance to discuss and debate the issue much as we are right here. That's healthy and necessary. It's what a democracy ought to be doing with important issues. That can't happen once a court has put the issue beyond the democratic process. That's the fate that has befallen abortion issue. Because the people are at a loss to change the decision, there is no productive reason to have a real debate. Sure, there can be yelling and name-calling and that's just what we see now but there won't be a real debate. Democracies do not rely on untouchable individuals to decide their important issues; dictatorships do.
My mind is still trying to wrap itself around how, exactly, amending the Constitution to ban gay marriage would not leave "people [. . .] at a loss to change the decision, [leaving] no productive reason to have a real debate." A court decision, whether by the Massachusetts SJC (in Goodridge) or the US Supreme Court (in Roe and others on abortion) is always subject to change. In fact, the Supreme Court reconsiders its positions all the time--the historic Brown v. Board of Education decision we're celebrating this week is just one of dozens of examples I can cite, and I'm neither or a lawyer nor a constitutional scholar. Exactly once--once--has a constitutional amendment been repealed.

The Challenger would have us believe that once we pass an amendment to preserve the status quo, we can talk and talk all we want. How convenient for those who wish to keep the status quo; how awful for those who find the status quo unbearable.

There are no "untouchable individuals" in this democracy. Every justice on the Massachusetts SJC is appointed by an official directly elected by the people of that state. Six of the seven--and three of the four in the majority on the Goodridge decision--were appointed by Republicans. And this is not a phenomenon exclusive to Massachusetts; in the three other states where state high courts ruled on gay marriage--Vermont, Hawaii, and that liberal bastion Alaska--the courts found that excluding gays and lesbians violated state constitutions.

At the top, I made it clear that I thought the Challenger was not a segregationist, merely analogous to one (I can understand if perhaps you've forgotten by now). I urge you to read again the thought exercise I posted in my Opening Argument, and compare the language of the hypothetical segregationists with what my Challenger has said. He simply wants to shut down real debate and preclude any chance of change.

Respectfully submitted,
Jay Bullock, Iron Blogger Democrat
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Monday, May 17, 2004

Battle Gay Marriage - The Challenger - First Rebuttal

Is denying gays the ability to marry segregation or bigotry? My opponent has no problem saying that it is. In fact, he is barely able to summon a cogent argument in favor for it beyond "Well, it's just wrong and oh yeah, we live in a secular nation". Well, that's all very special and I'm sorry he's had to bend his scary-talented brain to answers of more than one word. But we have a debate here and I'd like him to get into it.

Let's begin taking his written tripe apart at the beginning. Maybe using the spice of reason and the Paprika of Reality we'll end up with something palatable. My opponent opens by saying that the Constitution exists to "Limit the scope and power of the government, and grant and extend rights to individuals". He's only half-right. The Constitution does limit the scope of government but that is all it does. It doesn't confer a single right to any individual. In fact, the Constitution only prevents the government from infringing on rights which, as stated in the Declaration of Independence, already exists.

Don't believe me? Let's take the Bill of Rights as an example:

"Congress shall make no law..."
"...the right of the people...shall not be infringed."
" No soldier shall, in time of peace be quartered in any house, without the consent of the owner..."
"The right of the people to be secure...shall not be violated..."
"No person shall be held..."
"...the right of trial by jury shall be preserved..."
" Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Even the Fourteenth Amendment, the false front of this argument does not confer rights, but prohibits the government from removing rights individuals already have.

"...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


You see what's happening here? The authors are not giving out rights. They assume the rights already exist and block the government from taking any of them away. Neat, huh? It was pretty revolutionary back then, too because it meant that rights weren't something a powerful individual or an elite few could give out like presents on Christmas morning. Individuals have rights because "they are endowed by their Creator with certain unalienable rights". Uh oh. There's that darned religion thing, and in a secular nation, too! Darn those Founding Fathers for giving us rights based on a religious ideal! Darn them to...umm.... some secular darnation place!

So why does my opponent believe that marriage is a right? I can't begin to say. It's certainly not written, or even implied, in the Constitution. In fact, I doubt seriously that his principles would extend as far as to allow these same "rights" to any other group of people who wants to marry two or three other people at the same time, or their brothers or sisters, or even juveniles. He is willing to draw that line but not this one. But I wonder, since he belives that marriage is a right, on what grounds he would deny that to others.

But, I can almost hear him asking as he leafs through his "My First Pop-Up Book on Constitutional Rights", what about Brown? What about "separate but equal"? Well, I'm glad he brought it up. If you look into the court decision, you'll find the court brought to bear a very powerful principle: that the law has to treat everyone equally. Period.

Is that occurring? Are we prohibiting gay people from doing something everyone else can do? Are we treating them differently?

Well, no. The law is pretty clear: you can't marry someone of the same sex. There is no separation here. Everyone is prohibited equally; no one is given preference. Segregation? Hardly. Bigotry? Not part of my consideration. In fact, I'll bet that if my friend and I went to the courthouse and tried to get a marriage license, the clerk wouldn't ask if I were gay. It's immaterial to the law. That is the very definition of "equal protection under the law" - that it treats you without respect to race, sex, sexual orientation, or religion. Yet, Bullock wants to use equal protection to remove equal protection.

Bullock invokes Plessy in a vain attempt to support the origin of "separate but equal" as if a court somewhere has decided that marriage would intentionally prohibit gay people. That, of course, is miles from the truth. But it's a convenient dodge to place this debate on an equal footing with the later Brown decision. Marriage is not a new invention and the definition has not changed measurably from the way it's been practiced for thousands of years. The operative thing to remember is that marriage as we know it has been the societal norm as long as it has existed.

Let's assume, though, that desire matters in the eyes of the law. We'll ignore all those other folks who want to marry who they want to marry but can't because we're willing to cruelly segregate them arbitrarily. Let's look not unkindly past them and bend the Loving decision to fit this case and see what we have.

Loving held, basically, that interracial marriage couldn't be banned. Now, some folks want to map that directly onto this debate, saying that there's no different between interracial marriage and gay marriage. Later Supreme Court decisions have held that classifications based on sex are similar to classifications based on race. But, as Eugene Volokh shows, similar doesn't mean exact. There are many differences between the sexes that don't exist between races and Volokh correctly holds that there is strong government interest in acknowledging those differences.

But my opponent says that the state has "no compelling reason to prohibit gay marriage". Could he be right? In the word of Glenn Reynolds, "heh".

Bullock's entire support for saying this comes from a statement from the American Psychiatric Association that admits that,

It should be acknowledged that research on lesbian and gay parents and their children is still very new and relatively scarce. Less is known about children of gay fathers than about children of lesbian mothers. Little is known about development of the offspring of gay or lesbian parents during adolescence or adulthood. Sources of heterogeneity have yet to be systematically investigated. Longitudinal studies that follow lesbian and gay families over time are badly needed.


So, that's it? That's the whole hook on which he's going to hang that big ol' scary brain-covering hat? The APA, no friend to maintaining traditional marriage is telling us that essential information hasn't been investigated or is "badly needed". But on this Bullock is willing to say that everything is fine here, just fine, thank you. No compelling interest to see. Move along.

But there is a compelling interest. I explained it in my Opening Argument and I'll summarize it again to make it even clearer.

1) There is hard evidence that say that legalizing gay marriage has an adverse impact on traditional marriage. It has caused a decrease in those marriages and a huge increase in out-of-wedlock births.
2) Children born out of wedlock, or in families that are not traditional marriages are more likely to have serious problems into adulthood.
3) That both of these are true demonstrate that gay marriage is detrimental to society.

I'm going back to that study because it's an important part of the argument. Mr. Kurtz studies the data from the official government sources going back to before gay marriage was legalized in three Scandinavian countries and continued them to the last year there was solid data. His conclusions have been debated extensively but they still hold up. But why there? What does Scandinavia have to do with the United States? Well, it's a harbinger of how things will likely play out here if we do what they have done. We can look at the effects on marriage there and reasonably believe that they same dynamics will apply to us also. Of course, the mapping isn't perfect. Scandinavian countries have almost no underclass - something we do have that will be heavily impacted by the further degradation of traditional marriage (as it is in England right now). They also have more extensive welfare benefits for buoying up broken families, which means that there is less likelihood that children who belong to families like those will be poor. There is every indication that we will feel the effects more acutely because of these.

So what we're left with is a dubious case that gay marriage would be beneficial for society and strong evidence to suggest that it would not. Despite this, my opponent wants to forever change marriage


Bullock's entire argument to me rests on two statements: 1) "You're a segregationist", and 2) "I'm too cool to be having this debate". As it happens, neither one are even close to true.

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A Note From The Chairman: Warning on Comments

I had to spend some time, today, deleting personal attacks and flames. This was not fun, nor will I do this regularly. Those who persist will simply be banned from comments.

Read the Guide, people: Rudeness is NOT TOLERATED here. Period. Insulting other commentors or calling Iron Bloggers 'a shame' is way out of bounds. This site is here to promote CIVIL discourse. You want to flame? Take it somewhere else. You want to call people names? Take it somewhere else.

You want to behave like adults and discuss the merits of an argument or the issue? Great. But leave the personal attacks out of it. The Iron Bloggers (Rosemary, Jay, Robin and Vinod) have graciously volunteered to do this and while critiquing their posts are fair, attacking them is not.

This is the ONLY warning you will get. If you find one of your posts deleted? It is you I am speaking to. If not, carry on.

PS - As I just had to delete 2 more comments, attacking the Challenger is also right out.

Please. Act like adults.
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Sunday, May 16, 2004

Battle Gay Marriage - Iron Blogger Democrat - Opening Arguments

It's hard to know what to write in this opening statement, as it seems to me the correct responses to all of the Chairman's questions are obvious, one-word answers:

Is marriage a sacred institution to be protected by Constitutional means if necessary?
No.

Is the theory of civil unions a mere re-hash of 'separate but equal'?
Yes.

What role does the separation of Church and State play in this matter?
Big.

Are civil unions enough for gays to be recognized under the law, or can only legally recognized marriage grant gay couples true equality?
Marriage.

So, I can go now, right? Wait for the Challenger to make his untenable arguments and then respond? No? You want more? Fine.

The Constitution of the United States, as well as state constitutions, is designed basically to do two things: Limit the scope and power of the government, and grant and extend rights to individuals. An amendment to the Constitution prohibiting gay marriage does exactly the opposite on both counts; it limits the rights of individuals and extends the power of the government into a realm where it does not belong. The Constitution does not now and should not ever protect cultural "institutions."

Civil unions, implemented successfully in Vermont, addressed one small aspect of the problem, which is that heterosexual couples can and do have benefits, rights, and responsibilities granted to them under a state-recognized contract that gay and lesbian couples, whatever their level of commitment or willingness to enter that contract, do not have. Vermont's law makes it easier for gay and lesbian couples to claim many of the benefits, rights, and responsibilities. But can we, in good conscience, create second-tier citizens?

It is in religion that most opponents of gay marriage find their arguments, from the protesters outside the Massachusetts statehouse to the conservatives pushing anti-hay marriage laws in states across the country. Yet we must remember that the United States is a secular country. As much as many Christians want to believe we are a Christian nation, we are not, and Biblical proscriptions against gay relationships must not drive law.

Other arguments against gay marriage--marriage is for producing children, and that a home with a mother and a father is best, for example--put an undue and unequal burden on gays and lesbians: The state does not ask heterosexual couples if they plan to have children before granting marriage licenses. The state does not take away the children in a divorce to place in two-parent homes. And the research about how well children of gays and lesbians do is a worst inconclusive and at best encouraging. In a survey of the available research last year, the American Psychiatric Association concluded,
Overall, then, results of research to date suggest that children of lesbian and gay parents have normal relationships with peers and that their relationships with adults of both sexes are also satisfactory. The picture of lesbian mothers' children that emerges from results of existing research is thus one of general engagement in social life with peers, with fathers, and with mothers' adult friends--both male and female, both heterosexual and homosexual. Studies in this area to date are few, and the data emerging from them are sketchy. On the basis of existing research findings, however, fears about children of lesbians and gay men being sexually abused by adults, ostracized by peers, or isolated in single-sex lesbian or gay communities are unfounded.
In short, the state has no compelling reason to prohibit gay marriage. Enshrining such bigotry in the Constitution, at the state or federal level, is wrong. But just to make it clear, let's do a little thought exercise. The Chairman, in announcing this Battle, invoked Plessy v. Ferguson and Brown v. Board of Education.

In 1896's Plessy, the Supreme Court of the United States ruled that the doctrine of "separate but equal" is okay. "A statute," wrote Justice Henry Brown, "which implies merely a legal distinction between the white and colored races--a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color--has no tendency to destroy the legal equality of the two races." And segregationists all across the country breathed a sigh of relief.

But what did not happen in the years after Plessy that could have happened is the real story. Segregationists across the country could have begun to worry that the court's precedent would not always stand. "What would happen," segregationist lawmakers might tell constituents in a fund-raising letter or stump speech, "if some crazy liberal judges came along some day and decided that 'separate but equal' was no longer okay? Next thing you know, some crazy liberal judge will be telling us that we have to let our pure white children go school with Negro children, or that our pure white daughters can marry Negro men! The only way to stop this from happening would be to enshrine it in the Constitution!"

And with that rallying cry, imagine if states, maybe even the federal government, wrote "separate but equal" into their constitutions. Perhaps the sixteenth amendment would be segregation, not income tax (a double score for some conservatives!).

Imagine, then, sixty years later (and fifty years ago this month), what would happen when plaintiffs from five states banded together to challenge the "separate but equal" education system in the case we know now as Brown vs. the Board of Education. Earl Warren, writing for a unanimous court in 1954, said that segregated schools served no purpose but to push blacks to be lower-status citizens, and therefore violated the fourteenth amendment.

But with a sixteenth amendment saying that "separate but equal" is okay, then Warren would have had no constitutional basis for his ruling. Those crazy liberal judges on the Warren court would have had no way to stop segregation. We would have segregated schools--and more--yet today. Instead, our government did exactly what it should: The legal system worked, and the civil and equal rights of individuals eventually prevailed.

Many now believe we need constitutional protections now in order to stop those crazy liberal judges of the future--or of today, literally, in Massachusetts--who will declare gay marriage legal. And they are trying make political hay out of it. One even said in his State of the Union address, "Activist judges [. . .] have begun redefining marriage by court order, without regard for the will of the people and their elected representatives. If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process."

Roberta Combs, president of the Christian Coalition of America, adds that "judicial tyranny in this country has gone too far. Congress and the state legislatures need to fulfill their constitutional responsibilities and stop these runaway liberal judges."

History, of course, has told us that the Warren court made the right call on segregation, and it's hard even to imagine that anyone fifty years ago would have been on the other side of the issue. I firmly believe that history will write that we are on the right side of this issue, too. But we will never get the chance to find out if these modern-day segregationists get their way and enshrine bigotry in the Constitution.

So even if you don't support gay marriage, you have to see that we must not mess with the Constitution. Instead, we must let the legal system work. I have confidence that before long, we will see the equivalent of Brown for gay marriage. The segregationists hued and cried then, and gay marriage opponents will do so now. But in the end, protection and extension of rights will win the day.

Respectfully submitted,
Jay Bullock, Iron Blogger Democrat
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Blitz Battle Winners
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