Having and Holding our Right to Privacy: The Constitution as a Jurisdictional Document

“Griswold v. Connecticut became about privacy; what if it had been about equality?”

The short answer to this question: the ruling would have had no anchor in the actual language of the Constitution of the United States. It would also have generated an unfathomable ethical and judicial quagmire.

The question is posed in a rather chimaerical article written by one Jill Lepore, and published in the New Yorker dated 25 May 2015.

Griswold was a landmark case in which the United States Supreme Court ruled 7-2 that a Connecticut law, forbidding doctors in the state to prescribe or dispense or even discuss contraception with their patients, violated the federal constitution. The ruling rested heavily on a line of constitutional analysis begun by Justice Louis Brandeis in his dissent to an early wiretapping case, Olmstead v. United States, asserting that “The makers of our Constitution … conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men.”

When the case was decided in 1928, a majority of justices ruled that wiretapping a private telephone line did not require a warrant from a court, because telephones were not mentioned in the 4^th Amendment language providing “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” That might be a surprise to most Americans living today, who routinely understand that the government cannot tap our phones without a warrant.

Over time, Brandeis's dissent has come to be accepted. Griswold was a landmark case in establishing that individuals and families do have a right to privacy that the government may not generally enter into. The court's previous wiretapping precedents were overturned in Katz v. United States, a 1965 ruling that “Because the Fourth Amendment protects people, rather than places, its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure,” and “The Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements.”

Other landmarks which rested on the right to privacy included Roe v. Wade and Lawrence v. Texas, establishing that it was no business of The State to intrude on intimate decisions as to termination of a pregnancy up to the point of viability, and that statutes imposing criminal penalties for sodomy or other sexual acts between consenting adults were also beyond the constitutional authority of government.

Lepore bemoans that Griswold, for one, was decided “not on the ground of a woman's right to determine the timing and the number of her pregnancies but on the ground of a married couple's right to privacy.” So far, this would seem to be a distinction without a difference. A woman's right to determine the timing and the number of her pregnancies would have to be explicitly and specifically enumerated to be a right of constitutional caliber, and there is no such language. But, the right to be left alone is broad, and can easily encompass making sensitive, intimate decisions, whether made by a woman, a man, or a couple making the decision together. The result does establish in fact a woman's right to determine the timing and number of her pregnancies, because it is an intimate, private decision.

But Lepore is seeking ex post facto to regroup a whole series of practical liberties under the category of “equality,” because the right to privacy does not sustain the cause that really concerns Lepore: same sex marriage. Her starting point is Obergefell v. Hodges, the case currently pending decision in the United States Supreme Court, challenging an Ohio statute defining marriage as the union of a man and a woman. As is common in the media, Lepore flippantly and erroneously refers to the statute as “a same sex marriage ban.” It is no such thing.

One cannot ban what does not exist. If it were possible to commit an act called “same sex marriage” with or without the formal recognition of the state, a statute providing a criminal penalty for “same sex marriage” would of course be a “ban.” But a statute defining what marriage is, for purposes of issuing a marriage license, is not a ban, it is an affirmative definition. The fact that some people would like to do any number of other things, or associate in any number of other ways, that are not what the state defines as marriage, is no ban at all.

In fact, the right of individuals attracted to persons of their own sex, rather than to those of the opposite sex, to act on this attraction so long as it is with a willing partner, was established by relying on the right to privacy. The word “sodomy” does not appear in the constitution. The essence of a right to privacy is, that it is none of the government's business exactly what you are doing, only that it is your decision, not the government's. Lawrence was a sound, conservative application of well established precedent. But the right to privacy in no way provides a foundation for a constitutional mandate that states MUST license a same sex couple, and call that a marriage. Lepore betrays the modern American fallacy of believing that if one only tries hard enough, the constitution will deliver a right to whatever one has set one's heart on obtaining.

In fact, the Constitution of the United States of America is not a surrogate for Santa Claus, it is a concise jurisdictional document. Unlike many unwieldy 20^th century constitutions, which attempted to set forth at great length and in detail each and every empirical right and duty and limitation on everything the writers could think of... our constitution sets forth in a few pages what powers are granted to the newly-established federal government, what powers are explicitly denied to the federal government, what powers the founding states agreed to surrender, that is, powers that all states entering into the union are forbidden to exercise, and powers reserved to the states, or to the people (which are definitely two different things).

Lepore asserts that “The Constitution never mentioned sex, marriage, or reproduction,” BECAUSE “the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal.” This summary has a lot of empirical truth to it, although a cursory examination of what women actually attempted and accomplished during that period suggests that it falls well short of complete accuracy. But as an explanation for WHY the constitution never mentioned sex, marriage, or reproduction, it is speculative to the point of sheer petulance.

The details of any specific aspect of life, then existing or later to be invented, the details of human biology and social relations, are for the most part not enumerated, because that is not the purpose of the document at all. If the government is authorized to act, then it has the power to act. How the legislature or executive branches exercise that power is discretionary. If the legislature is denied the power to act, then no matter how good or just or right or true or desirable some citizens may believe a law to be, the government is powerless to enact such a law. If it does so, then it becomes the duty of the courts to declare it null and void.

Perhaps more ominous, Lepore's statement would effectively rule out any possibility that the issues of evident concern to her may be resolved by constitutional litigation in the federal courts. IF it is true that the constitution says nothing about sex and marriage BECAUSE the Framers deliberately left them out in the belief that women didn't matter (although in truth men have a good deal to do with sex, and marriage, and reproduction), then it would take a constitutional amendment, not a well written legal brief, to make any change in this omission.

Lepore's style and framework echoes to some extent Samuel A. Marcosson's poorly conceived book, Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. Marcosson does a decent job of debunking the more outlandish aspects of “Original Intent” as the sole basis for constitutional jurisprudence. He opens with a most amusing chapter about how Thomas might have ruled on Loving v. Virginia, since “Original Intent” would tend to support Virginia's right to enact laws against inter-racial marriage, but Thomas himself lived in Virginia with a wife who, by the laws of the state, would be considered “white,” while Thomas himself would be classified as “black.” (Mr. and Mrs. Loving, the plaintiffs who sued the state, were actually a “white” man married to a “black” woman). Where Marcosson runs lemming-like over a cliff is when he counterposes that the correct question for constitutional jurisprudence should not be “Is it original?” but “It is legitimate?”

The term “legitimate” is so elastic, and is so capable of different and even opposite understandings in the mind of each beholder, that as a standard for expounding a constitution it is no standard at all. It is merely a license to do whatever any given sitting judge believes to be good and right. There is a reasons courts rely on precedent. The citation of precedents can become a tangled mess, but at least they provide some semblance that federal district courts will apply the same law, the same way, to similar sets of facts, all over the country. When new issues come up, of course, district court rulings are all over the map, which is why appellate courts, and the Supreme Court, set binding precedents that will insure uniformity in the future.

Questions were raised after the Affordable Care Act was passed, asking where in the constitution it says that congress can require an individual to buy health insurance. That is a legitimate question – legitimate in the sense that ANY exercise of power by congress MUST be granted by the constitution. All other powers are denied to congress by Amendment X. But the answer is quite simple. Congress has explicit power to regulate interstate commerce. For better or for worse, the delivery of medical care is almost entirely interstate commerce now. If it was about Doc Jones coming out of his apple orchard, saddling up his horse, and riding down the road because Sally just ran over to say that Ma was having her baby, congress would have no jurisdiction at all.

The same is true of setting a federal minimum wage. At the time the constitution was written, almost all commerce was in fact intrastate. Thus, congress had no power to enact such a law. By the dawn of the 20^th century, virtually all commerce was in fact interstate, or international. The constitutional powers of congress didn't change, but the fraction of economic activity that fell within the jurisdiction of congress to regulate had grown enormously.

“Essentially, the Constitution is inadequate” Lepore insists. That is an assertion unsupported by facts, but if true, recourse through the courts is closed, so her entire argument would be a nullity, rather than merely wrong.

Lepore wants what she wants, and is willing to cherry-pick any argument that will deliver the desired results. That is, up to a point, an inevitable and honored component of an adversarial court system. Unless there is a live controversy between two parties, courts have no jurisdiction to act. Generally, neither party much cares what the constitution provides for, what they care about is the material result for themselves personally. But it is the job of the courts to apply lasting general principles in order to determine what each party is legally and constitutionally entitled to. An article asserting enduring values is cheapened when it is reduced to “so how do we get what we want?”

Lepore knows that the constitutional ground for a mandate that states must license, regulate and tax same-sex couples, and call that a marriage, is weak. She particularly knows that a line of privacy cases provides no support at all. So, she tries to cheapen the whole notion of privacy. Lepore quotes, accurately enough, from arguments that women's suffrage would “open to the intrusion of politics and politicians that sacred circle of the family.” That could be termed an appeal to the “right to privacy,” but Lepore finds no argument that the constitutional right to privacy bars a state from extending to women the right to vote. She merely tosses around the term privacy, in general, without reference to actual constitutional impact. Whether to propose or ratify a constitutional amendment is, by its very nature, not subject to judicial review. The power of the judiciary to declare a statute null and void lies in the language of the constitution itself. The proposed amendment could not be ratified by reference to the existing constitution, nor, if ratified, could it be nullified.

Still Lepore is determined to besmirch the word and concept of privacy, so she ends up arguing that the philosophy of Roe v. Wade has its origins in the Victorian era, and is bound up with the idea that the home lies outside of politics and that women, therefore, ought not to vote. It did take many decades of effort to get the word “male” out of the constitution, and that is because it had been written into the constitution. No court could remove it, only two-thirds of both houses of congress, and three-fourths of the state legislatures, which, in the end, was accomplished.

Lepore comes roaring back with the complaint that “No one mentioned the Nineteenth Amendment, or the idea of equal rights for men and women” when the court ruled that states may not ban the use of contraception. Well... that may be because the Nineteenth Amendment is about the right to vote, and only the right to vote. She may wish there was more to it, but its not there. It also may be because there is nothing in life in which men and women are so unequal as when it comes to sex. Men can prevent themselves from impregnating a woman, but a man cannot become pregnant. (And no, “trans-men” either are not yet men, or have not yet become men, if they are pregnant – but that is a tempest in a teacup for another time.) It is theoretically possible for a woman to sexually assault a man, but it is extremely rare and difficult.

There was a real basis in the language of the Constitution to assert a right to privacy, but no language from which to assert a right of men and women to be equally free of pregnancy, or able to become pregnant. As the old saying goes, only women can have babies, because God knew that men couldn't handle the pain. Lepore even speculates that Roe v. Wade should have been decided, not on the right of a woman to make an intimate private decision, but on her right to equality with men in the matter of pregnancy!!! (Outside of elite circles that take such abstract nonsense seriously, the reader begins to wonder what the New Yorker editors were thinking when they accepted this diatribe).

Perhaps Lepore agrees with the attorney who proposed some years ago in an incongruous New York Times Op-Ed that a young man who is informed that his girlfriend is pregnant should have 90 days to renounce his father hood in writing, in which case the pregnant woman can carry the pregnancy to term, knowing she will have no child support from the father, or agree to an abortion? That level of narcissism is easily refuted, but only by recognizing that “the equal protection of the laws” does not empower the law to render everything in life perfectly equal.

When a young man (or a dirty old man, for that matter) lies down with a fertile young woman, he knows that conception is a possibility, and that for nine months the developing zygote, blastocyst, embryo, fetus, will be growing inside the woman's body, and nowhere else. Not only do all the risks and pains of carrying a pregnancy to term fall on the woman, but so do all the risks and pains of choosing to terminate the pregnancy. By no means can these be transferred from her to him. Thus, it is her decision, and only her decision. Once a child is delivered, if the woman wants to put the child up for adoption, there is no reason daddy should not have first claim.

Although equality between men and women in most commercial and social spheres is now well established in law, labor organizations have for more decades than not resolutely opposed an open-ended Equal Rights Amendment, because in fact women have a different bone structure than men, different musculature, and, e.g., if an overseer of farm labor in the fields could require women to carry weights just as heavy as men, serious injuries could result without recourse. It takes a scalpel, not a bludgeon, to get the details right so that the most equal opportunity reasonably achievable is the result. The law of unintended consequences tends to fall on the poor and the unskilled, but might even have some backlash for the more educated, prosperous, and privileged. Of course nobody does manual labor any more right? Nobody who counts, anyway. The opportunities to twist a well intentioned law for miserable greed are the reason high-profile lawyers are paid so well. (My apologies to those lawyers who labor, unheralded, in the vineyard of day to day work for those who simply need some help negotiating the complexities of the statute books.)

Lepore's crusade for perfect equality deems destruction of an American citizen's right to privacy to be an acceptable level of collateral damage. Thus, she quotes Martha Minnow of Harvard Law School that “the family is not mentioned in the Constitution.” Indeed it is not, but nowhere does any court decision endow families with protected rights. Rather, individual persons have rights, and when those persons enter into family relations, each family member retains their right to be secure in their persons, houses (generally the family home), papers, and effects (often family furniture, the family car, etc.). It is the choice of individuals to enter into families, and the police powers retained by the states to enact a body of family law, that make families relevant to constitutional jurisprudence.

But eventually Lepore gets back to her main point: same sex marriage must prevail. Lepore mourns that Lawrence v. Texas was decided on the right of individuals to a sphere of privacy, not on equal protection of the laws. She cites Sandra Day O'Connor's concurring argument that rather than ruling for Lawrence on the basis of his right to privacy, the court should have ruled against the state of Texas on the ground that a man could not be prosecuted for engaging in a particular activity with a woman but could be prosecuted for engaging in that same activity with a man. Unfortunately for the grammatically impeccable argument, it simply isn't the same activity.

Justice O'Connor's tortured reasoning was, evidently from her own words, a desperate attempt to overturn the result of Bowers v. Hardwick, which upheld a Georgia sodomy statute in 1986, without actually admitting that she had been wrong. The second sentence of her concurrence is “I joined Bowers

, and do not join the Court in overruling it.” O'Connor continued to maintain that the Georgia sodomy statute did not violate anyone's right to privacy – and apparently Lepore agrees.

O'Conner's stance was perhaps one of the low points, in terms of honor and integrity, of a judicial career that had many high points. She, and Lepore, draw shamelessly on false analogies to Loving v. Virginia, and Potter Stewart's succinct concurrence. Stewart cut through a great deal of unnecessary verbiage in the main opinion of the court, to say that no law can stand constitutional scrutiny that makes an act a crime, or not, depending on the race of the actor. In the minds of Lepore, O'Connor, Chief Justice Margaret Marshall of Massachusetts, and a host of federal district court judges more anxious to jump on a bandwagon than to think through a constitutional argument, it is therefore equally wrong to make an act a marriage, or not, depending upon the sex of the actor(s).

Many distinctions must be made, because there are many differences to distinguish.

First, Virginia's anti-miscegenation laws made it a crime to marry, whereas state marriage laws do not make homosexual sex a crime (that has been ruled null and void in Lawrence), they merely refuse to issue a marriage license to any combination of persons that does not constitute a marriage.

Second, race is irrelevant to the structure of marriage, while sex is of the essence. Without sex, there would be no marriage. Without race, marriage would be unchanged. The state of Virginia knew darn well that a man subjected to one racial classification, and a woman subjected to another, were perfectly capable of marrying. That is why the state made it a crime to do so. States may have a more substantive reason to define marriage AS the union of a man and a woman.

There is no particular reason that a state could not or should not enact a statute to license, regulate and tax same-sex couples, or issue them marriage licenses. All it means is that a majority of legislators heard an appeal from citizens who would like their partnership to be considered a marriage, and concluded that they could vote to do so, without losing the next election. That in turn means a majority of the citizens of the state are OK with the idea. In the end, civil marriage means the general community has decided to extend recognition and approbation to the couple – which incidentally is not a constitutional right for anyone. IF a state has marriage laws, marriage must be equally available on the same terms to each individual – whatever it is.

One of the constraints, of course, is that a man has no “right” to marry, unless a woman agrees to marry him, and vice versa. Just as the family is not mentioned in the constitution, neither does any article grant rights to couples, or that states shall guarantee to every couple of persons the equal protection of the laws. Persons have protected rights.

Race is an artificial and mutable concept, but the division of the species homo sapiens sapiens into two sexes is fundamental. Our species does come in two types of persons: male and female. There are ambiguities due to the imprecision of biochemistry and genetics, but these are ambiguities of male and female. The only reason sexes exist is that it was a favorable strategy for reproduction, survival, and diversity in the gene pool, many eons before human history.

The only reason sexual passions exist is that, without them, nothing more complex than a sponge would engage in the difficult acrobatics and intrusion necessary to conceive another generation. Sex is, by origin, heterosexual. It therefore makes perfect sense that a state would choose to regulate a fundamental aspect of human biology that is overwhelmingly normative, and treat with benign neglect whatever statistical and biological deviations from the norm might also exist.

It also makes perfect sense that a majority of citizens, becoming aware that a tiny fraction of our fellow citizens form couples differently than the dominant pattern for the species, and that most of us know some perfectly nice, competent people who feel this way, would accede to a proposal to issue them marriage licenses. Its not a constitutional mandate, but it is constitutionally permissible. By some criteria a marriage of a same sex couple would be a legal fiction, but legal fictions are perfectly serviceable for all legal purposes.

For purposes of the civil law, it doesn't matter whether homosexuality is an abomination or not. But nobody is denied the equal protection of the laws just because their personal preference does not conform to the statutory definition of marriage. As her personal contribution to erecting this unstable house of cards, Lepore is prepared to demolish the constitutional guarantees nearly all Americans rely on in one way or another, that we have private lives that are none of the government's business.

Sweet reason and pouring oil on troubles waters: making sense of the SSM debate(s)

After several years of point and counter-point in the exalted comments section of Rod Dreher's blog at The American Conservative, probably the most diverse comment section on the web, it seems time to distil a coherent summary of what I actually believe to be true about homosexuality, discrimination, the Constitution of the United States of America, marriage, and other tangentially related stuff.

Clearly, I don't take this debate as seriously as some people do. Its a thing, but its not an essential thing. What any person is entitled to is what Justice Louis Brandeis called "the right to be left alone." That is not a right of gays and lesbians, or of Christians, or of any demographic sub-category, however you want to slice the pie of humanity. It is a right that adheres to each individual, and therefore to individual choices of activity shared with consenting adults. Within that universal right, there is room for people with same-sex attraction to act accordingly without the police barging in, and rightly so.

As a heterodox Christian, I also think that columnist James Watkins is probably correct in surmising that the marriage of a male and a female reunites the image of God, and the union of two men, or two women, or for that matter, one man and more than one woman, or one woman and more than one man, simply does not. Is this important to the civil law? Not particularly, but its a perfectly valid religious precept. It is civilly binding on nobody, but it may be true.

Anecdotal evidence is of limited use in proving a hypothesis to be true, but it can be quite sufficient to disprove a hypothesis. For example: "Homosexuality is a choice." One person who can credibly recount that they felt "gay" from an early age, from the onset of puberty, or in pre-pubescent ways even before puberty, disproves the hypotheses. Anecdotal evidence can disprove the scope asserted by the word "all." Likewise, the assertion that ALL homosexuality is inborn, genetic, fundamental to a person's being, can be disproved by one credible anecdote of a person who became homosexual in orientation at a later point in life, or due to some traumatic experience, not to mention those who have gone back and forth, or have been actively gay for many years, then found that when motivated to do so, for whatever reason, they were able to revert to stable, comfortable, fulfilled, heterosexuality.

So there is no reason to believe anyone who makes any universal statement characterizing exactly what homosexuality IS. We don't really know, and those who wave the banner of "science" from any point of view have always turned out to have a predisposition, something they earnestly wanted to prove. Presto! Those who denounce homosexuality publish papers "proving" their prejudice, and those who extoll it as healthy and normative publish papers which "prove" their prejudice with equal fervor, and equal credibility.

So, civilly speaking, is there any sound constitutional or legal reason to discriminate against individuals who are, or say they are, or may be, or seem to act as if they are, gay? Not much. If someone tried to enforce the equal employment opportunity right of a gay man to be employed as a prostitute at a legal brothel in Nevada, the management would have a sound case to object that this is NOT what customers are paying for. (Unless there were SEGREGATED brothels catering to different orientations... which there may well be, I haven't been looking into it.) But that is an outlier. It is one of the few cases where precisely the way a gay individual is DIFFERENT is highly relevant.

There was a cute post card some twenty years ago sarcastically debunking the notion of "The Gay Lifestyle." It had humorous references to "Watch them as they shop for the week's groceries, wash their car on Saturday, mow the lawn, get up and go to work Monday morning... Good points all. Whatever it is that makes "gay people" different from "the rest of us," in all these respects and most others, they do the same things the same way. So no, there is no basis for discrimination. The fact that "I don't like homos" is irrelevant as a matter of law, and commerce, in particular, is subject to legal regulation. The fact that someone is gay, or may be gay, is irrelevant. The point is, everyone is entitled to participate in civic life and commerce without inquiry or consideration of whether they are or aren't.

Does that mean that churches may not discriminate against gay people? Actually, a church, or any religious body, can exclude anyone they want to, for being gay, or Catholic, or Protestant, or having red hair, or wearing pants, or eating pork, for any reason or no reason, rational or irrational. That's fundamental to the First Amendment. For the federal or state government to intervene in what a church may or may not accept or reject would be both an Establishment of Religion, and an infringement of the Free Exercise thereof.

Further, the First Amendment has been expounded for close to 150 years to protect churches from any judicial review into matters of faith and doctrine. It simply is none of the government's business to even inquire, much less to declare, what a church does believe, or may believe, or shall believe, or teach. Most of that jurisprudence was neatly summarized by the Tenth Circuit court of appeals a few years ago.

Thus, there is NO basis whatsoever in our constitutional framework to impose any restriction on a religious body (church, mosque, synagogue, ashram, temple, etc.) teaching, e.g., that homosexual acts are sinful, contrary to the will of God, harmful to a human being's immortal soul, or whatever. They can preach it, teach it, proclaim it, and endeavor by patient witness to win others to accept and practice what the church teaches. Nobody has to accept it, or even listen to it.

So then we come to the rather more specific debate about same-sex couples marrying. Perhaps the most concise argument in favor is "I see an expression of the same longing for the connection that redeems an animal instinct into a living out of love and commitment." (One John Spragge contributed that to Dreher's blog). On its face, that's beautiful, and very convincing. It is true, sexuality is a set of hormonal animal instincts, and human cultural institutions have tried to encase it in meaning. In human history, that has included love and devotion, it has also included arranging diplomatic alliances, forging business alliances, etc.

But there is a significant difference between the right to be left alone, to work out the intimate details of your own life, to participate fully in civic responsibilities, on the one hand, and a claim to the honor, applause, acclaim, approbation, of the entire community, on the other.

The claim that "equal protection of the laws" constitutionally MANDATES that a state issue marriage licenses to same-sex couples rests on many flawed assumptions. One can frame the debate "Shall the state deny gay people the right to marry?" One can equally well frame the debate "Does the bond that unites a same-sex couple constitute a marriage?" Since either question is equally valid, the claim of constitutional mandate is shaky.

The basic problem is, the union of a man and a woman is not similarly situated to the union of two men, which incidentally is not even similarly situated to the union of two women. These are three different things, which the law may perfectly well treat differently, without running afoul of the Fourteenth Amendment.

There has been a lot of grammatically logical but rationally ridiculous reference to the 1967 Supreme Court case, Loving v. Virginia, which rendered all state laws against inter-racial marriage null and void. Well, the facile assertion goes, if the state may not discriminate on the basis of race, the the state also may not discriminate on the basis of sex! Well, look at all the reasons a few paragraphs up that affirm that discrimination against people because they are (or may be, or are thought to be) gay... Unlike shopping at the grocery store, or preparing a blueprint, or owning a home, or renting a home, or driving a car, or a myriad of other features of daily life... sex IS of the essence of MARRIAGE. It is highly relevant, and to consider it is not in the least invidious.

The plaintiffs in Loving were married.  That was the crime they were prosecuted for. The State of Virginia knew darn well that a man of any color and a woman of any color could constitute a marriage. The state wanted to sort out which men could marry which women, for reasons that had nothing to do with what a marriage IS. As Justice Potter Stewart said in his concurrence, no law that makes an act a crime, or not, depending on the color of the actor, can withstand constitutional scrutiny. Two men, or two women, are not being discriminated against, they simply don't constitute a marriage, as the law currently defines it.

Now, just because there is no constitutional right to obtain a marriage license for your particular affection, whatever that might be, does not prevent any state from legislating that marriage licenses shall be issued to same sex couples. New York state has legislated exactly that. If a majority of the legislature can vote for that, and expect to be re-elected, then that means a majority of the citizens of the state are OK with it -- maybe not firmly committed, but not particularly opposed. So be it. Incidentally, an argument that it would be sound public policy to license same sex couples and call it a marriage does NOT set a precedent that it would be sound public policy to license polygamy or child brides, etc. That paranoia can be dispensed with, if the decision is a discretionary act of the legislature. But such fears are reasonably well founded if the courts find a "right to marry" whatever one sets one's affections upon.

From a religious, or cosmic, or teleological point of view, such laws may well create a legal fiction, but there are many legal fictions on the statute books, and for all legal, civic, earthly purposes, they are perfectly serviceable.

As we get beyond the urges that motivate some people to discriminate against gays, we also have to move beyond "Gay Pride." There is nothing in particular to be proud of. After all, it is simply the way some people are born, right? Nothing earned, nothing chosen, nothing pursued. Its just a condition. It is, actually, in an objective biological sense, a deviation from the norm. Yes, humanity is heteronormative. Deal with it.

Sexuality exists for one reason only: without powerful sexual hormones, nothing more complex than a sponge would go through the difficult gymnastics necessary to produce another generation of any species. Thus, sexuality itself is by nature and origin heterosexual. Homosexuality is a by-product, an outlier, a product of the imprecision of complex biochemistry. That there will be outliers to any biochemistry is almost inevitable.

For those born gay, a life with a fixed affection for individuals of their own sex is the only life they will ever have to live. There is no reason whatsoever for the overwhelming heterosexual majority to go out of our way to make life difficult for them. There are some who respond to religious teachings by choosing to live a celibate life. There are others who do not. Either one is civilly valid. What God will say about it is between each individual and God.

Personally, I rather doubt that God is all that bent out of shape. No doubt God knew that the imperfect process of biochemistry would generate some statistical outliers. A same-sex couple may lack some of the teleological significance that each and every heterosexual couple potentially has, but it may be quite fulfilling to the individuals engaged, nevertheless. Not everyone will agree, and there is no reason they should. Some firmly believe that yielding to homosexual impulses, however deeply embedded in one's being, is morally wrong. They have a right to say so, and everyone else has a right to pay attention, or to ignore them.

Here we come to one of the harder nuggets to digest. What about the photographer who refuses to take the pictures for a same-sex commitment ceremony? What about the baker who refuses to make the wedding cake for two men, or two women? Isn't that bigotry? Well, no, its not.

There is no sound case for "freedom of religion" as a defence against non-discrimination in such a commercial transaction. Nothing in the First Amendment exempts any person from complying with a neutral law of general application, just because "its against my religion to do that." In fact, if a customer buys a cake off the shelf, it is none of the baker's business what the customer plans to do with it. BUT, there is ample precedent that the machinery of the law may not be used to compel participation in an expressive message. The state, including the courts, and various civil rights or human rights commissions, may not compel speech.

Thus, if a customer asks a baker to ice the cake with "Adam and Steve, together forever in wedded bliss," the baker may lawfully and constitutionally refuse. This is no different from a Democratic silk screen artist refusing to make t-shirts for a Tea Party rally.  It is no different from a K street lobbyist telling a prospective client, "I can't take your job -- I abhor everything you want to lobby for."

And the photographer? That is an intimate involvement in memorializing, celebrating, recording in the best possible light, "the happiest day of our lives." You can't compel a person to do that if they find the whole thing abhorrent, no matter how rational or irrational their beliefs may be, or may be construed to be. And why in the world would anyone want such a person to be their wedding photographer anyway?

There is an excellent Supreme Court precedent on this subject, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of South Boston. Essentially, the court ruled that to force the organizers of a parade to include an expressive message they did not want to include, violates the First Amendment. The state may not use a non-discrimination in public accommodations law like that. Incidentally, I have always held that the IAGLVGSB should simply have reorganized as the Sir Roger Casement Memorial Marching Band, and joined the parade playing "Banna Strand." Who could have turned them down?

Then there is the matter of adoption. It is entirely plausible that, all other things being equal, the psychologically and socially most healthy and nurturing family unit for any child, male or female, is a stable, married heterosexual couple, precisely the pattern that can actually conceive a child. There could be quite a number of very subtle factors which would be very difficult to "prove" scientifically or, worse, by the blunt instrument of a judicial code of evidence.

However, other things are not always equal. There can be little doubt that many children would have a much healthier upbringing from a stable, devoted, perhaps even married, same-sex couple, as compared with a married, alcoholic, abusive, heterosexual married couple, one or both of whom might also be pedophiles. It is also true that many children would be far better off adopted by a stable nurturing gay couple than bouncing around the foster care system for two years or ten, waiting for the perfect married heterosexual couple to appear.

It would be best not to set terribly rigid standards favoring exclusively heterosexual couples, or insisting on equal option for same sex couples, and to let a hundred school compete in the field of adoption. State standards for adoption agencies can provide a useful floor, but should not enclose the possibilities in a straight-jacket.

The truth is, bandying about terms like "segregation" and "discrimination"  and "equality" as universal bads or goods is destructively imprecise. We segregate public bathrooms and shower rooms by sex, not because one sex is inferior and unworthy to be in the presence of the other, but because 99.9 percent of each sex prefers privacy and a sort of limited modesty in such situations. Many women would like this to be separate and UNequal in a sense, and that may be a valid claim.

As to the claims of the "transgender" population, I have little sympathy. Again, public restrooms are not segregated to affirm "gender identity." They are segregated to insure a modicum of privacy and modesty. In your heart, you may know you are a woman, but when the ladies see your dick, they sure feel like you are a man. No, you may not use the women's shower room. Come back and talk about it if you choose to have an operation, after the operation is complete. Individual unisex facilities, which can be used by those who feel uncomfortable in a more public group setting, are all the reasonable accommodation anyone has a right to expect from their fellow men and women. There should be no questions asked about WHY any given individual chooses to use them.

But there is no reason a legislature should not provide for or reasonably accommodate a measure that would comfort and reassure even a small fraction of the civilian population, and it seems likely that in the absence of any ill considered judicial mandate, the will of a majority of voters will make it happen in the reasonably near future. Will this be an enduring change or a passing fad? Only time will tell.

The name of the thing: what is marriage?

The media and various judicial departments are full of the controversy as to whether marriage laws deny some classes of people (plaintiffs are generally gay or lesbian or both, and attached to partners of the same sex) the "equal protection of the laws." A number of courts, including the Supreme Court of Massachusetts and the federal district court for the Northern District of California have ruled that they do. Other courts have ruled otherwise, or have yet to make a definitive ruling one way or the other.

The opinions of various courts that have mandated a revision of previous marriage statutes all have a common flaw: they either have failed to define what marriage IS, or have arrived at a definition at the conclusion of their deliberations, rather than defining their terms a priori considering the question. In the seminal case, Hillary Goodridge vs. Department of Public Healthin the Supreme Judicial Court of Massachusetts, Chief Justice Marshall began his majority opinion, "Marriage is a vital social institution." OK. That's a descriptive, and sets a value, but does not define the content of this vital social institution, only that it is vital and social.

That marriage had a legal definition was readily acknowledged by Justice Marshall: "The everyday meaning of "marriage" is "[t]he legal union of a man and woman as husband and wife," Black's Law Dictionary 986 (7th ed. 1999), and the plaintiffs do not argue that the term "marriage" has ever had a different meaning under Massachusetts law."

In conclusion, Marshall wrote "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others," which is a way of saying, we have no idea what it really consists of or what purpose it serves, but it just is. Implicitly, the court defined marriage as a desirable bundle of benefits which nobody should be deprived of. But it failed to define the term BEFORE analyzing the question before it.

Marshall stated the question before the court as, "whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry." How can anyone consider that question without knowing what marriage consists of? Failing to do so, it had not even been established that the marriage laws of the Commonwealth DID deny the protections, benefits and obligations conferred by civil marriage to anyone at all.

The court's decision explicitly overturned the existing statutory definition, on the grounds that the definition deprived a class of persons of the equal protection of the laws. But if so, what then IS a marriage? Having thrown out one definition, the court was able to provide only the most tenuous substitute. Under the court's new definition, clearly marriage has absolutely nothing to do with sex, which raises the question, what does sexual orientation have to do with it either? And why have any marriage laws at all?

The simple historical fact is, every variety of marriage ever instituted in any human society came into being because the human species is divided into two sexes, men and women, and the volatile relationship between these two sexes needed some definition and regulation to sustain any functional community or social context.

With that commonality, different societies have instituted polygamy, polyandry, polygyny, marriage of one man and one woman for life, monomgamous marriage in which one or both partners are expected to have informal lisasons on the side, arranged marriages, giving of daughters to the suitor who offers the parents the highest bride price, marriage limited by clan affiliation, sacred marriage, marriage by free choice of the individuals concerned... but all these variations concern the union of male and female.

Some societies have openly accepted homosexuality in various contexts, temporary or long-term, by people also married to a husband or wife, or distinct from marriage, and others have discouraged or punished it. Some societies have hung property relations and diplomatic relations unto marriage, others have not. But all marriage has been a response to the distinction between men and women, which pre-dates any human constitution or form of government, and the volatile complementarity between the two.

Unfortunately, this fundamental point was never argued in the the Goodridge case. Instead the state of Massachusetts offered "three legislative rationales for prohibiting same-sex couples from marrying: (1) providing a "favorable setting for procreation"; (2) ensuring the optimal setting for child rearing, which the department defines as "a two-parent family with one parent of each sex"; and (3) preserving scarce State and private financial resources." Those were weak arguments, and entirely unnecessary.

When the New York Court of Appeals turned down the argument that the state had a constitutional obligation to license same-sex couples as marriage, Chief Judge Judith Kaye dissented, citing as persuasive authority the assertion in Halpern v. Attorney Gen. of Canada "‘an argument that marriage is heterosexual because it ‘just is’ amounts to circular reasoning." True, no legal term can assume any definition because "it just is." What Kaye, and the Canadian court she referenced, both failed to do, was to define what, then, marriage IS.

It can no more be "whatever I find convenient at the moment" than it can be "whatever it always has been." And a consistent definition that has substance and integrity must PRECEDE any rational legal analysis. The definition cannot be "something broad enough to include gay men and lesbians" just because a judge desires to include them.

When the challenge to Proposition 8 in California was heard by federal judge Vaughn Walker, unlike the court in Massachusetts, Walker scarcely bothered to consider defining the most essential term at issue. Trial testimony and argument, and Walker's analysis, turned primarily on whether California has an "interest" in "differentiating between same-sex and opposite-sex unions." But whether state law had even done so cannot be weighed with integrity, without first establishing what is a marriage. The definition of a term cannot flow implicitly from a conclusion when the term itself was left amorphous for purpose of argument.

A great deal of Walker's opinion is devoted to weighing the credibility of various witnesses about the sociological benefits or harms of licensing or not licensing same-sex couples as a marriage. None of that is particularly relevant to the question, has anyone been denied the equal protection of the laws in violation of the Fourteenth Amendment?

Among other things, Walker ruled that "A PRIVATE MORAL VIEW THAT SAME-SEX COUPLES ARE INFERIOR TO OPPOSITE-SEX COUPLES IS NOT A PROPER BASIS FOR LEGISLATION." Of course it isn't - and a weakness in the ad hoc arguments by the ad hoc assemblage defending Prop 8 was reliance on arguments that did so. But that doesn't ipso facto mean that any marriage law is founded on such a private moral view. One cannot say it does, without defining what marriage is.

What a federal judge of unbiased integrity in Walker's position would have done, is refer back to all parties for additional briefing, "What is marriage, how is it defined, what authority sustains the definition you argue for, and with reference to that definition, how does your desired outcome retain any merit?"

New York state has a marriage law which suffers none of the deficiencies of judicial rulings in Massachusetts, California, and elsewhere. In New York, the legislature, not the courts, amended the statute, and thereby amended the civil definition of marriage. In essence, the people of New York decided, we will recognize the specific quasi-sexual human relationships that unite two men or two women as a couple, extending licensing these relationships, and giving them the name of marriage.

There is no constitutional reason the people of a state cannot do that. Quite properly, New York did not establish a test that only men, or women, qualified as homosexual may enter into a same-sex relationship. The law does not discriminate. Clerks issuing licenses do not inquire "are you gay or straight?" just as clerks never have inquired or a man and a woman applying for a marriage license "are either of you gay?"

Relationships are not entitled to the equal protection of the laws. If they were, business owners would sue for the tax exemption of non-profits, while non-profit organizations would sue for the right to engage in commerce (without losing their tax exemptions). Individual persons are entitled to the equal protection of the laws.

So long as any individual man, and any individual woman, are able to enter into marriage, the Fourteenth Amendment is satisfied. The fact that some men, and some women, prefer to be celibate, to enter holy orders, to enter into one or another kind of same-sex relationship, prefer to engage in group sex with a variety of partners, prefer to support themselves by prostitution, is entirely irrelevant. None of the above are entitled to a marriage license, unless they enter into what the law defines as a marriage.

Racial restrictions were thrown out because race is of no relevance to marriage. Sex is, however, very much of the essence in marriage. Sex is not of the essence to whether an individual can write a legal brief, design a highway bridge, or change a diaper. Race is no predictor of whether any given individual can earn a Ph.D. There is no reason that the people of a state may not write laws concerning same-sex couples, but equal protection of the laws is not offended if the people of a state don't think these particular relationships are worth writing laws about.

The following is a response to a comment by IllyrianFields:

Illyrian, you have a charming tendency to blur distinctions and meaning. No doubt you are sincere in your confusion. There is no good reason I know of that We The People, through the discretionary legislative power entrusted to our elected representatives, should not vote to license same sex couples, whether two men or two women, and confer upon these bonds the name of "marriage." That would be an argument about sound public policy.

Appealing to the courts is quite a different matter. Confused liberals, conservatives and others, infused with an excess of self-righteous zeal and a deficit of rational reasoning, have created the delusion that if the legislature doesn't give you what you want, you run sobbing to the judiciary, and they, like Santa Claus or the Good Fairy, will grant you your heart's desire.

Courts have jurisdiction over state laws primarily when the state has exceeded the boundaries of its jurisdiction, not when the state has made "the wrong decision."

Marriage means something in our society? WHAT does it mean? You beg the question, the very question I wrote about. No law says that "queers can't marry." No county clerk ever asked a man and a woman applying for a marriage license, "Is either of you homosexual? I can't give a marriage license to homosexuals." There is no discriminatory language in any marriage laws.

Marriage was not created in the abstract by legislatures, kings, tribal councils, or any other governing body. There is a biologically objective relation between men and women, and a biologically complementary relation. Observing this, and looking at how this volatile bond might affect the social cohesion of a community, marriage laws were constructed to regulate it. Nobody "discriminated against" a class of people called "homosexuals." Nobody conceived that there was such a class of people.

Homosexual acts were things some people did, not a definition of what anyone was. Married men might, or might not, indulge when away from their wives, particularly on long military campaigns. (Achilles and Patroclus come to mind.) Women, more or less the same. They law might, or might no, proscribe such acts, but the acts did not characterize a person.

Nobody is being told they are second class citizens. At most, some people are being told that your emotional bond is of insufficient interest to the general community to legislate about it.

A world in which gay marriage was the norm would very quickly lead to extinction, so it's a rather poor hypothetical to offer. There is no legitimate question that heterosexuality is the norm for all mammalian species, including humans. I don't think people who find themselves to be "gay" are indulging in sin, I think they have a modest misfiring of certain genes and biochemical responses, and by all means, we should be compassionate about allowing them to make the best of the cards they were dealt. But without the development of two complementary sexes, we would have no sexual emotions at all, and homosexuality would not exist either. Its a secondary offshoot, an evolutionary blind alley, significant only to the affections of the individuals concerned.

I'm not arguing for "the way its always been." I'm simply saying, there is an objective biological basis for the marriage laws that have existed up to 2003, and there is nothing about them that denies any individual PERSON the equal protection of the laws. The fact that some persons don't wish to avail themselves of marriage, and do wish to pursue something not currently regulated, licensed, or taxed, does not show any invidious discrimination whatsoever.

I can never conceive a baby in my own abdomen, or give birth to a child of my own body. That's because I'm male, and males lack the capacity. I am not a victim of discrimination based on sex -- not by the law. When laws were passed to allow pregnancy leave for women, some men complained that this was discrimination on the basis of sex. OK, I suggested, amend the law to provide that any man or woman who becomes pregnant is equally entitled to pregnancy leave.

To many people--a majority of Americans, it seems--sex is of as little consequence as race when it comes to marriage. I'm straight. I define marriage as "a union of two people who love each other."

With your opinion, and $8, you can buy yourself a fancy cup of coffee at Starbucks. Your opinion counts for one vote in the electoral arena, and nothing as to the constitutional boundaries of state power. You can urge your legislator to vote to change marriage laws. I'm not particularly opposed to that, although I wouldn't make it a priority either.

To say that sex is of as little consequence to marriage as race betrays pure ignorance or delusional wishful thinking. Without sex, no marriage laws would exist. If marriage is not about sex, then "gay marriage" would not be an issue, because "gay" is also all about sex. Even a gay person who chooses to remain celibate is defined as "gay," if there is such a designation, by their sexual urges.

I voted against my state's DOMA, partly because there wasn't a snowball's chance in hell that our state Supreme Court was going to find a state constitution mandate that the legislature license gay couples as a marriage, partly because I don't much care if a legislative majority votes to do so. But the petty, childish, emotive demand for licensing same sex couples as a matter of "equal protection of the laws" could have all kinds of unintended consequences, and it is in itself bad legal argument.

For the legislature to license same sex couples and call it marriage does NOT lead inexorably to legalizing incest or bestiality, because it would be a discretionary decision by the legislature. But, for the courts to MANDATE that each different sexual proclivity creates a protected class, could lead quite rapidly to protection for polygamy, incest, bestiality, etc. etc. etc. Be careful what you wish for, you might get it.

And don't be so simperingly magnanimous about being a straight person who wants to be nice to gays. In the civil rights movement, that sort of attitude gave birth to the phrase, "That's mighty white of you." What every person, IRRESPECTIVE of their race, creed, sexual orientation, or any other irrelevant characteristic, is entitled to by our constitution, does not depend on your good will.