In your earlier comment you said:

“I’m not sure how to make the distinction between Loving and Roe. While popular opinion about abortion was probably close to divided when Roe was decided, I’m certain that a larger percentage of the public was opposed to interracial marriage when Loving was decided.”

I addressed your mistaken certainty regarding public opinion for that seemed to be the basis for your assessment that the Loving decision was made by activist judges. That is, “activist” was equated to “anti-public opinion” or somesuch.

I’ll add that when a constitutional opinion is based on constitutional *interpretation*, rather than constitutional amendment through judicial decree, the judicial opinion is not activist — as a general (and good) rule of thumb.

I do not see where, in Loving, the 7-0 decision was based on predrawn conclusions or on writing into the Constitution a basis for the opinion that was not already in the text and framework of the Constution.

Roe provides a counter-example. As does the recent California Supreme Court opinion, the Goodridge opinion, and other pro-SSM opinions. To impose the SSM-merger by judicial decree is to amend the constitution rather than to interpret it; it is to begin with a predrawn conclusion and circle back to it.

Put simply, in the Loving case their marriage officially existed and it was criminalized.

In fact, the original guilty plea of the Lovings was based on a bargain to the effect that the existing marriage would be punishable as a felony with a year in prison — but the judge showed leniency (of a sort) when he altered the bargain so that the *married couple* could leave the state provided that they did not return as a *married couple*. There marriage was directly recognized even if only for the purposes of punishment (incarceration) or explusion from the jurisdiction.

The Loving case was decided in the US Supreme Court on the basis of examination of a law that entrenched a caste system — i.e. White purity and White Supremacy — through the misuse of marriage. The racist system that came under scrutiny entailed the selective segregation of the sexes and the denial of contingency for responsible procreation for “mixed raced” *married couples*. The racism was correctly identified as a direct affront to the basis for the 14th Amendment. In fact, the court said as much which, contrary to your earlier comment, took into account what the ratifiers had in mind when they approved the amendment.

In the pro-SSM cases there were no actual marriages and the relationships were not criminalized. The man-woman criterion was not shown to be unconstitutinal on the basis of unjust discrimination. In the California opinion, the judges wrote “sexual orientation” into the state constitution — in addition to substituting marriage recognition for a false equivalency with Domestic Partnership.

These are significant differnces, among others, between Loving and the pro-SSM opinions.

That sounds about right.

Some of the latter have grudgingly admitted that I have a good point here and there, but I don’t think I’ve actually changed anyone’s mind.

This is often very hard to do. Still, I find it very encouraging to find gay people who agree that gay marriage may not be the best thing for society (including gays themselves, as you point out).

I think you’ve misread my comment. Tell me why Loving was not decided by a bunch of activist judges.

The SSM campaign seeks to merge nonmarriage with marriage.

The issue is societal esteem for the social institution of marriage. The government does not own marriage, a foundational institution of civil society. To claim otherwise is to claim that the government must now own civil society.

The basic principle of governance that produces the creative tension between majority and minority — on any given issue of contention — is that the people have a government, not the other way around. So, whether in favor of the SSM-merger or not, a citizen has the duty to defend civil society from government ownership.

I suppose if this was about a free press or about free enterprise we might better see the point. But this is about a social institution and folks are not used to distinguishing between government recognition and government imposition. The government does not impose marriage on society. It merely acknowledges the special status that the conjugal relationship type has based on what marriage actually does for society.

That is, integration of the sexes, contingency for responsible procreation, and these combined as a coherent whole. It is a relatively non-coercive means by which society, through its traditions and customs, does what no government can do nor can force people to do. Government’s role is to protect, at minimum, this social institution — and to show great preference for it at best.

If the proposed SSM-merger was pursued forthrightly by legislative action — in the name of a merger instead of trumpeted with the false claims of “expanding” marriage — then it would be defeated by the majority.

However, the SSM campaign promotes identity politics — the gay variety in this case — as the basis for special treatment of a tiny subset of the nonmarital category. And identity politics is probably one of the worse bases for social policy, much less for constitutional law, in a free and very tolerant society such as ours.

In effect the pro-merger people favor the demotion of marriage and the elevation of gay identity politics. That is both anti-majoritory and anti-minority.

If the merger was based on an outright rejection of the preferential treatment of marriage, and a clear desire to treat it as any other form of relationship recognition, then, such an abandonment of a vital social institution ought to be reserved for a decision based on majority rule. Social institution stand, or wither away, due to the strength and breadth of social consensus.

Marriage protects minorities of all kinds. A merger would disempower the social institution to do its good works for society.

But what about the gay minority? Well, if there is merit in a one-sexed arrangement, perhaps one based on gayness alone, then, it ought to be spelled out forthrightly. If its merits (and demerits) are on the table for all to see, then, it is fair to expect a democratic society to assess whether or not a new relationship status, at law, is requried to address whatever the concerns may be.

SSMers talk about protections but these are available to nonmarital alternatives already today. Marital status is more than a protective status so SSMers also need to explain their demand for preferential treatment of gayness.

If the claims have strength and are objectively true, then, they will gain more credibility through the democratic process that would promote a social consensus drawn from the majority. If the claims are weak, and are presented as far too narrowly based on gayness, then, the people are wise enough to act accordingly.

See the basic principles of self-governance. Judges interpret laws rather than write them. The judiciary is not a superlegislature.

When SSMers today say that interracial marriage was opposed by a majority of Americans in the 1960s, they often misconstrue opinion surveys which indicated something to the effect that most repsondents would not choose an interracial marriage for themselves or for their children. That’s not the same as an endorsement of the anti-miscegenation system.

In the heat of the pro-SSM campaign, the following may have been rendered subtle point, perhaps: to equate Loving with a pro-SSM claim is to start with the conclusion that marriage is NOT both-sexed and that the man-woman criterion denies recognition of some marriages on he basis of UNJUST sex discrimination. That’s circular thinking.

Loving did not start with a conclusion that is analogous. It began with what marriage actually is. A social institution that integrates the sexes.

The anti-miscegenation system selectively segregated the sexes, based on racist identity, not based on objective criteria for dividing the one human race into subspecies. Marriage is a foundational social institution that provides contingency for responsible procreation. The anti-miscegenatin system directly undermined this contingency by denying a “white” and “non-white” couple to legitimize their children — and entrenched a caste system which locked-out their children from the “pure white race”.

The man-woman criterion is not unjustly discriminatory. It integrates the sexes (and thus the so-called race categories) and can not be called seperate but equal in terms of sex classificaiton. It is not a criterion that is an analog for identity classification.

So for Loving to work, you’d have to demonstrate either that there was an objective criterion by which to divide the human race into subspecies — and that this criterion is irrelevant to marriage — or demonstrate that the man-woman basis for a both-sexed institution is anti-male or anti-female. You’d also have to argue for equating sex-segregation with sex-integration; and for dismantling the legal requirement that people consent to what marriage actually entails, including the marriage presumption of paternity which is vigorously enforced.

Or you would start with your conclusion. That there is no justification for distinguishing marriage from nonmarriage, at least when it comes to writing gay identity politics into the constitution of the state or of the country.

Nearly all my Orthodox Jewish friends oppose gay marriage, and nearly all my non-religious friends are in favor of it. Some of the latter have grudgingly admitted that I have a good point here and there, but I don’t think I’ve actually changed anyone’s mind.

Well done on maintaining this blog!

Loving and Roe provide an interesting contrast. Loving was accepted while Roe has resulted in a generation-long political/cultural fight. I don’t want to see a decision regarding SSM spawning a new Roe-like response.

I’m not sure how to make the distinction between Loving and Roe. While popular opinion about abortion was probably close to divided when Roe was decided, I’m certain that a larger percentage of the public was opposed to interracial marriage when Loving was decided.

In state after sate, polls have actually underestimated the actual level of support for man-woman “marriage,” perhaps because the other side keeps saying their views are bigoted. As for gloating, I certainly will be pleased that unions that could never have been marriages in the first place will no longer have the government’s “marriage” stamp. But I don’t plan to gloat. I think it’s important that we find a compromise nationwide that addresses the real concerns of same-sex couples even in states that aren’t so gay-friendly, while maintaining man-woman marriage everywhere.

Peter-

I plan to blog on my reasons why I find the analogy to race unpersuasive by the end of the week.

I’m not arguing that ssm is the same as interracial marriage, but the principle behind your anonymous emailer’s argument is that judges should not overturn the will of the people. That is directly confronted by the facts of the Loving decision.

Either oppose Loving, or don’t argue that judges should uphold the will of the people.