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Monday, November 06, 2006 

Kmiec on Gay Marriage

Professor Douglas Kmiec of Pepperdine University will be speaking to the Milwaukee Chapter of the Federalist Society on Friday. While the War on Terror is the topic for the lunch, Prof. Kmiec's most recent popular article is on gay marriage. Kmiec believes that the gay marriage issue is one that should be decided by the people, not judges. In this article, he makes the case against gay marriage based on the state's interest in promoting procreation. He takes a look at the recent New Jersey Supreme Court decision through that lens...
The New Jersey court, like the Massachusetts court before it, deliberately excised procreation from the definition of marriage. The New Jersey judges even comment that the state did not even advocate the importance of procreation. Had they done so, say the judges, it is answered by surrogate pregnancy and artificial insemination. It's not clear what the court means by "“answered" but there is no available data set finding the number of children conceived by artificial means to be anything more than the tiniest fraction of children generally.
Kmiec also descirbes why the state has such a strong interest in promoting procreation...
The decline in population threatens the viability of everything from welfare programs to troop levels in the military. Yet, America has only the foggiest grasp of how the shrinking of successor and younger generations has manifold effects on the costs and availability of health care, for example.
He then uses the procreation factor to distinguish a gay marriage Equal Protection argument from a race-based Equal Protection argument...
Aiding and abetting the errant judges is some editorial essay writing suggesting that just as the U.S. Supreme Court invalidated bans on inter-racial marriage, it will ultimately come round to favor same-sex marriage. Maybe, but if it comes to pass, it will be because race and sexual orientation will have mistakenly been declared analogous. Race tells us nothing about the character or capability of a person, but sexual orientation tells us everything about the natural potential for giving birth.
Kmiec closes, saying that the burden is on the pro-gay marriage crowd to show that recognition of those marriages will not harm these state interests...
The heart of the argument against same-sex marriage is thus either an empirical or spiritual claim, not a judicial one. If the former, the burden is on the proponents of same-sex marriage to demonstrate in legislative assembly that recognizing same-sex marriage will not have a tangible, adverse impact on procreation. If it is a spiritual claim, the democratic process must be mindful of this nation's commitment to religious freedom.
The view taken by Prof. Kmiec is one that I've heard before from lawyers who argue against gay marriage being Constitutionally imposed. Remember that the state can discriminate against groups of people by way of the law. However, there must be some sort of state interest involved, and the law must meet the goals of that interest. Is the interest in procreation enough? I guess that depends on the court's level of scrutiny.

I'll be interested to see if Prof. Kmiec touches on this issue at all on Friday. While I find it highly unlikely that it will come up in a speech about presidential power during wartime, it may come up in a Q & A session. I have a feeling that it will be an issue on the minds of many after tomorrow.

Your being too cerebral and so your just hopping around the key quesetion. It's clear your against gay marriage. Why? You haven't quite said. You only talk about why judges don't need to validate gay marriage (even though I don't see what allowing gays to marry has to do with population growth -- they're not going to have kids one way or another, right?)

And, I stand by my earlier question: How will my life (and future marriage) be better if/when gay marriage is banned in Wisconsin? Is my marriage really going to be that precarious? Who is the ban protecting? I thought libertarians were all about protecting civil rights and protecting minorities.

As far as leaving the decision up to the people, well, today's your chance.

(PS I like your use of the word "imposed", as in, "gay marriage being constitutionally imposed" -- it sounds like allowing gay marriage will remove rights from everyone else or something. Is that what you meant?)

Nowhere in this post did I say that I agreed with Kmiec's argument. This was a Steve-is-feeling-lazy, lots-of-quotes-from-an-article post. In all honesty, I posted this to promote the Friday Federalist Society event. It's Kmiec's most recent, mass market piece of writing. I would've posted it if it was about gay marriage, war powers, or civil procedure.

I am many things, including a promotional zealot for the Federalist Society. One thing I am not is a liar. I don't appreciate being called one.

I don't know where your clear evidence comes from. I guess this issue has become a "you're with us or against us" issue. Let me say this again so it is crystal clear: I don't care who gets married in this state.

I realize that the vast majority of people don't share this view. The issue must be settled somehow. I'd rather have it done democratically. If the people of Wisconsin decide that they only want opposite sex marriage, that's fine with me. If the people of Wisconsin vote to allow same sex marriage, you wouldn't hear a peep of criticism out of me.

I wouldn't (and as of 9 AM this morning, haven't) voted for any Constitutional amendment taking any position on this issue. This is a controversial social issue that would be better tackled through debate then legislation. An amendment has a level of permanency that isn't appropriate for an issue like this.

However, this issue should not be decided by a small group of judges. Every time a court gets involved in a contentious social issue like this, they tread deeper into political, not legal, territory. That hurts the legitimacy of the courts in the eyes of the public. It politicizes an already too politicized branch of the government.

That tension between preferring legislation to an amendment and opposing the courts from making this decision is what's got me in the position that I'm in. That's why I left that section of the ballot blank.

Your questions are fine. They're valid. They're on point. My answers are "I don't know," "I hope not," and "I don't know." You would get much meatier answers from someone who supports the amendment.

Trying to "libertarian" me into a position isn't going to work. Based on what has been involved in this amendment campaign, I'm willing to take the most hardline libertarian approach to marriage. No state recognition for any form of it. My current position has seemed to done a great job of pissing off liberals and conservatives alike. Why not take the position that would piss off everyone.

I have no idea what you're getting at about the use of the word "imposed." That is not what I meant. I used "imposed" as one would use the word that Merriam-Webster defines as "to establish or apply by authority." "Constitutionally imposed" would then mean that a court is establishing gay marriage via the Constitution, most likely the Equal Protection Clause. I don't get what the controversy here is.

My position on this issue is what it is. It might not make sense to you, it might piss you off, it might seem like a cop out. However, based on the circumstances involved, it's how I feel and how I voted.

Interesting point. And since it's hard to convey tone and inflection through straight-up text, of course, I want you to know that I was trying to keep things civil, but it may have come off a little bit more 'pissy'. It's not like I've pulled you off the guestlist. Yet.

Yeah so I guess I did see your post as more of a defense of a personal pro-ban position, so it's good that you cleared that up.

I understand pretty clearly the pickle you're in -- don't want to vote for the amendment, but don't want judges litigating the issue. I guess my only gripe is that one pathway is very close to permanent, and the other pathway will be status quo. And if judges rule on the issue to allow gay marriage, then there will be a strong backlash, republicans voted into office, new judges appointed, decisions overturned. Every year the issue would have come up (and republicans could use it for fodder). My theory was that shooting down the amendment would be bad for democrats in the long-term. At least now, its settled for a few decades.

Anyways, keep up the posting. Sarah is now also a regular ED reader. She likes getting the independent viewpoint, which is lacking at times in these parts. She also likes the beer reviews. (We tried the Copper Kettle Weiss last night on your suggestion and found it delicious. I agree that the Leinie Oktoberfest leaves something to be desired from an Autumn beer such as itself.)

Nicholas Proite
ED Foreign Affairs
Madison, Wisconsin.

Everyone likes the beer reviews. They are truly bipartisan.

I understand that this is a very emotional issue for many people. Simple text is horrid for conveying... well, just about anything beyond stereo assembly instructions. It's something I stuggle with a lot when trying to write posts.

As for the amendment issue, the problem I see is the permanent nature of both avenues. The amendment itself is fairly permanent. I honestly do see it being overturned when our generation becomes middle aged though. Honestly, our generation is far more tolerant of gay rights issues than our parents' generation. Still, changing an amendment is no easy task and it's not much comfort to many people now.

A court decision also tends to be more permanent than many people think. What I've seen so far in my travels through caselaw is that once a door is opened to any sort of right, it rarely gets closed. It's often just a jurisprudential nightmare for a court to overturn something like that.

Today's "Quote of the Day" speaks to the problem. I believe that people will be more accepting of decisions when they can debate them openly, legislate accordingly, and let future generations change their minds. When the issue gets shut off, we have problems. That's why judges and Constitutions should stay out of it.

Watching the election results, I'm a bit shocked at the margin of victory on this issue... especially considering the results in the other statewide races. For the record, the one candidate I supported who won is Democratic DA John Chisholm.

In closing, I firmly believe that Copper Kettle Weiss is on tap in heaven.

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