And so it begins...

President Obama Is a Bigot
Todd Zywicki • August 8, 2010 3:44 pm

because he opposes same-sex marriage. So are Joe Biden and Hillary Rodham Clinton. And millions of Californians of different races, sexes, and religious views. Nelson Lund puzzles over the logic of Judge Walker’s Proposition 8 ruling.

The primarily conservative and libertarian law professors blogging at Volokh are all quick to state how they're theoretically on board with the idea of equality and same-sex marriage... just not now, and not through the courts:

"Wait until there's a majority vote in each state. That will be seen as more legitimate and pleasing to the people." ... "Let the law be a popularity contest for the people: when the numbers are there, the laws can then follow." ... "It's just been a few years since Lawrence took the bold step of decriminalizing sodomy. How fast do you think the justice system works anyway?? Slow down the buses, and be grateful you're permitted to be an out, second-class legal citizen. It's not like we're going to throw you in jail anymore, or take away your children or anything. Just no easy legal recognition for your families without expensive private contracting, or access for your family to things like your earned Social Security benefits, insurance benefits, etc. Count your blessings already ingrate!"

Now we legal folk all understand that years of case law tells us marriage is a fundamental right -- it's not something written directly in the Constitution. And anyone who's read Judge Walker's straightforward reasoning can understand it's pure 14th Amendment, guaranteeing all citizens equal protection under the laws to such fundamental rights.

No discriminating on the basis of sexual orientation, or to make it easier -- gender or sex. (Two guys -- no. Two women -- no. One transexxual MtF and a biological male? OK? If so, it's sex discrimination really -- we just can't imagine that there are men and women couples in our country who can naturally complement each other in a longstanding family relationship, regardless of the traditional sex roles. Well some of us practicing in the legal world can see it anyway, the reality on the ground -- nobody ever claimed these professed intellectuals were cutting edge or lifestyle progressives even, despite the open-minded claims...)


When I read the post above on Volokh, mocking the president for listening to his more politically minded advisors, I wondered if when the chips are down, President Obama might find a bit of courage. Like Illinois Gov. George Ryan did, when politically he had nothing to lose after being caught up in political scandal, and declared a moratorium on the flawed death penalty processes in that state.

The men at Volokh want you to understand, fundamentally it's all about taming men into the marriage role, so they will be encouraged to indentify and stick around to raise their biological offspring**: without the vital institution reserved to "one man one woman", we might see more singles raising their sons alone, with no help from the biological father. Except ... did the traditional papa's at Volokh forget ... who raised this man that became our president? It might have taken a village, or extended family at least, but the boy came out just fine, even without that biological linkage.

Law professors are sheltered from American realities in many ways: no doubt they have colleagues with adopted children, but still they cling to their out-dated reasoning. And I suspect they don't much "see" all the children currently being raised by same-sex couples.

It reminds me a bit of Ireland, before divorce was legalized. Do you think that before, when marrried relationships fizzled and died, that the law kept people together, taming them to live up to their promises? Nope. People moved on, and formed other relationships. They couldn't divorce, but they could procreate, and they did. (It's only natural.) These "second families" were there, just not recognized under the laws. And can you imagine what a pickle that led to -- the laws stating how things should be..., and then reality with the situations, the families and children, there just not recognized. Legally invisible.

That's what forced the change in Ireland's law. Reality. The reality in America today is ... if you truly care about society's children, not just biological offspring, and you care about securing their futures, letting them receive financial benefits should one of their providers pass, then you legalize these gay relationships too. You open up, for fairness sake, the health insurance pools and the availability of federal benefits such as Social Security survivors' rights.

Just like the minority "divorced" families of Ireland were always there -- whether legally recognized or not -- plenty of American gays aren't waiting for the laws to catch up to the status of their relationships. If you're an honest legal practioner with your eyes open, you know this already. If you're honestly wanting to "tame" relationships -- secure them for the good of the children, as the argument goes -- you acknowledge that gays aren't going away, and leaving their families in legal limbo (those without the financial resources to contract privately) doesn't help the country one bit.

Especially now as we're going to a mandatory health insurance game, and we're counting more and more on individuals and their families to provide for themselves in childrearing and retirement, as we begin to talk about curtailing entitlements out of recognition of our collective financial reality as a country.

I'm reminded of that letter (see post below) in the Magnificent Ambersons, where Eugene is trying unsuccessfully to convince his lifelong love Isabel to put herself before her grown son's needs: "~ Dearest One. Yesterday, I thought the time had come when I could ask you to marry me and you were dear enough to tell me, 'Sometime it might come to that.' Now, we are faced, not with slander, not with our own fear of it, because we haven't any, but someone else's fear of it, your son's. Oh dearest woman in the world, I know what your son is to you and it frightens me. Let me explain a little. I don't think he'll change. At twenty-one or twenty-two, so many things appear solid, permanent, and terrible, which forty sees as nothing but disappearing miasma. Forty can't tell twenty about this. Twenty can find out only by getting to be forty. And so we come to this, dear. Will you live your life your way, or George's way? Dear, it breaks my heart for you, but what you have to oppose now is your own selfless and perfect motherhood. Are you strong enough, Isabel? Can you make a fight? I promise you that if you will take heart for it, you will find so quickly that it's all amounted to nothing. You shall have happiness and only happiness. I'm saying too much for wisdom, I fear. And oh my dear, won't you be strong? Such a little short strength it would need. Don't strike my life down twice, dear. This time I've not deserved it. ~Eugene."

That makes me hold out hope for President Obama. "Can you make a fight?... Won't you be strong? Such a little short strength it would need..."

He came out against Proposition 8 when it was still in the voting stages. Will he let the fellas at Volokh box him him as a bigot? Or will he use that voice -- such a little short strength it would need -- take measure, and realize he has little to lose in recognizing reality, and acknowledging the truthfulness of Judge Walker's words.

These issues are interconnected, as is the superiority attitude that leaves one class of citizens protected equally by the laws, while others are out in the cold until the majority supposedly votes to recognize their comparable rights.
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** Jonathon Adler:

In his op-ed, Professor Lund writes:

Only unions between men and women are capable of producing offspring, and every civilization has recognized that responsible procreation is critical to its survival. After the desire for self-preservation, sexual passion is probably the most powerful drive in human nature. Heterosexual intercourse naturally produces children, sometimes unintentionally and only after nine months.

Without marriage, men often would be uncertain about paternity or indifferent to it. If left unchecked, many men would have little incentive to invest in the rearing of their offspring, and the ensuing irresponsibility would have made the development of civilization impossible.

The fundamental purpose of marriage is to encourage biological parents, especially fathers, to take responsibility for their children. Because this institution responds to a phenomenon uniquely created by heterosexual intercourse, the meaning of marriage has always been inseparable from the problem it addresses.

Homosexual relationships (and lots of others as well), have nothing to do with the purpose of marriage, which is why marriage does not extend to them. Constitutional doctrine requires only one conceivable rational reason for a law, and the traditional definition of marriage easily meets that test.

Can you identify where in the opinion Judge Walker demonstrates, with legal reasoning, that this is not a conceivable rational reason for a state law that recognizes heterosexual marriage but not same-sex marriage?

Now Professor Adler has noted on his blog he has two daughters himself. I wonder, without his marital benefits, would he abandon them? Is that the only thing keeping the biological family together here, and if same-sex couples indeed were able to legally marry and take responsibility for their own, would Adler's marriage and relationship with his own (presumably biological) girls be cheapened or in any way affected? Cuz that's his argument for excluding gay couples from marrying, in theoretical terms.

Nevermind that outside those law prof circles, the marital bond isn't doing much these days to tie those biological fathers who don't want to be there to their biological children, despite all the inherent social and financial benefits that accrue over time.