What if I really love my dog/daughter/house/tree/goat? Should I be able to marry him/her/it too?

After the Massachusetts decision, this was pretty much the defacto “argument” against gay marriage. For awhile though, it seemed the sheer ridiculousness of it had slowly pushed it into the repertoire of only the least educated and eloquent of the bigot brigade. Lately though it’s been making a bit of a come back across the board. The response is very simple. There is a clear objectively determined reason for limiting marriage by ability to consent (eliminating animals, inanimate objects, and children) and widening the gene pool (eliminating close incest).

Why can’t I marry 500 other people? I mean if we all love each other, that’s what matters right?

The irony of this argument is that the people using it most frequently consider themselves “defenders of traditional marriage,” and what form of marriage pray tell has a longer tradition than polygamy (or at least polygyny)? Seems to me that based on their self-identification, these folks would be major proponents of polygyny. All humorous irony aside, traditional polygyny (such as that still practiced by fundamentalist sects of the Church of Jesus Christ of Latter Day Saints) is rife with exploitation of women (usually beginning while they are still children), physical, sexual, and emotional abuses, and a host of other objectively undesirable traits.

That being said, there are a small minority of folks who have successfully engaged in truly polyamorous relationships (in which a group of more than two people love each other and wish to share their lives together). Personally, if they’re happy, I’m happy for them and have no objection to them seeking legal protections for their families, but (it’s a big but), civil marriage isn’t capable of offering them the protections they would need. As a lawyer, KipEsquire explains this point better than I could in his posts on the subject here and here, but if I can sum it up in layman’s terms; the legal institution of civil marriage (as powerful and expansive as it is) simply can’t meet the needs of more (or less) than two people. Marriage laws, as they rest on the books right now (sans arbitrary gender-specific language), fully meet the needs of same-sex couples (at least to the exact degree that they meet the needs of different-sex couples). A polygamist relationship brings with it a vast number of issues not currently addressed by civil marriage. Who is married to who (are all members married to each other, or is it a network of “sub-marriages,” in which one may be married to one spouse in the relationship but not one’s spouse’s spouse)? Who makes decisions when a spouse is incapacitated? How do divorces work? When it comes to polygamy and marriage, it’s not a matter of should marriage apply to polygamist relationships in modern society, but rather a question of can marriage apply to polygamist relationships in modern society; and the answer is a resounding “No.”

Marriage is about children.

Marriage is NOT about children. Straight couples incapable of having children (whether because of age, medical conditions, or even location) marry every day. I’ve heard it suggested that we allow the infertile to marry just to prevent them from running around having sex with everybody while not bearing children (in other words we chain them to one other person so they don’t pollute the rest of the population with procreation-less sex), but I don’t think that’s a notion that is even worth validating with a response. Of the thousands legal policies relating to civil marriage, only a small minority of them have anything to do with children. Clearly then, children are not a necessary element to a marriage.

But let’s, for a moment, assume that marriage IS in fact about children. It still doesn’t follow that gay couples ought to be excluded. The fact is that many, many, many gay couples out there have children (via previous relationships, adoption, artificial insemination, surrogacy, etc.). If marriage is about protecting children, why would one argue that the children with parents of the same sex are any less deserving of those protections. In fact, if marriage we’re truly about children, wouldn’t gay parents actually have MORE of a claim to marriage than childless straight couples?

Yet the “it’s all about the children” meme has legs and was even inexplicably cited as the dominant deciding factor in the Washington and New York’s Supreme Court decisions on the topic. The notion both of those courts put forth was that society has the right to encourage heterosexual marriage for the purpose of raising future generations. This misses the mark on two counts. First, of course, it starts from the invalid proposition that marriage is exclusively, or even primarily, about raising children. Secondly, and more importantly, it’s a ruling on a case that was not even in front of the court in the first place. The courts simply answered the wrong question. They were not asked if there was a state interest in encouraging heterosexual marriage, they were asked if there was a state interest in prohibiting homosexual marriage. The reality is that even if you accept the courts assertion that the state’s interest in straight marriages is to encourage the raising of children, you still have to explain how prohibiting gay marriages furthers that goal. Plainly, it doesn’t, and if it doesn’t, then you can’t legally deny the same rights to a segment of the population.

God hates fags, and marriage is a religious institution.

One of the great things about this country is that we enjoy the freedom of religion. That has allowed religions of all kinds to not only exist but thrive. Each of those religions has a different view of homosexuality as does each denomination within those religions and even each individual within those denominations. Given our freedom of religion, those religions and denominations which recognize marriages between members of the same sex ought to have their rights to do so respected equally as strongly as those religions and denominations which do not. The same separation of church and state that prevents religion from interfering with the government prevents the government from interfering with religion.

Certainly, the government has no business telling religious organizations how they may or may not conduct, record, and recognize their religious ceremonies, customs, and institutions. However civil marriage, both legally and traditionally, is a separate entity from religious marriage. Same-sex religious marriage already exists (among those religions and denominations which recognize it). The question being battled over in the courts and legislatures is only one of the civil institution.

I’m ok with "civil unions," why does it have to be "marriage?"

The Constitution (both federal and every state that I’m aware of) requires equal protection under the law, not just, really, really close to the same protection. Marriage is so inseparably woven into the fabric of our laws that any attempt to create a different legal status exactly the same as marriage is virtually impossible. This is already being shown in New Jersey where the legislature created civil unions "identical" to marriage instead of simply legalizing marriage for same-sex couples. Already cases are making their way back up through the courts in which couples in a civil union are being legally treated differently than a married couple. And New Jersey is the only state that even attempts to suggest that it’s civil unions (or domestic partnerships) are equal to marriage. The Supreme Court has decided that separate but equal is inherently unequal. It’s proving to be as true on this issue as it was on segregation.

Further, even if a civil union could be crafted that was 100% equal to marriage, why would such a thing be necessary? Is it not fair to ask the same question of the anti-marriage crowd; why so much fuss over just a word? Crafting such a civil union would require massive legislative changes on both the state and federal levels, likely costings millions or even billions of dollars. All just so the government can tell gay people, "while we’re going to give you the rights of marriage, we want to make sure that ou know that your relationships still aren’t as valuable to us as straight relationships?" That makes no sense. And if it did, could such a thing honestly be considered "equal" anyhow?

The government just needs to get out of the marriage business?

If you buy that such a thing would be desirable in the first place, this argument might be appealing in theory. In reality though, the government is in the marriage business, always has been, and it’s not going to change. As long as the government is in "the marriage business," it is indefensible for it not to extend those protections to all it’s citizens. For the record, does anybody ever recall hearing "get the government out of the marriage business" prior to gay marriage making headlines (or for that matter seperate from the gay marriage issue)? I think alot of people say this to sound like they want to treat everybody equally while still opposing gay marriage, but I have to say, to me, it comes across alot more as "I oppose gay marriage so strongly that I’d rather everybody do without then let gay people marry."

I don’t have anything against gay people, I just support traditional marriage.

Which tradition exactly is it that you support? Polygamy perhaps has the longest tradition behind it. Arranged marriages? Marriage for nothing more than social and political advancement? Marriage to children? All of these things have been part of marriage tradition at various times. As late as 1976, marriage provided legal absolution for men who raped their wives(!!!), in the United States. Is that part of the "traditional marriage" being defended? If it’s not, then why were those changes ok, but this one not? What is the criteria that defines "traditional marriage" because from here is looks an awful lot like "traditional marriage" is simply marriage with whatever changes society chooses to make to it as long as gay people aren’t allowed to engage in it (and if there’s a difference between that and having something against gay people, I can’t see it).

Gay people have the same right to marry a member of the opposite sex as straight people do?

Yeah, and black people had the same right to marry a member of their own race as white people did??? The logic between the two statements is entirely the same. In the 1967 SCOTUS case Loving vs Virginia, the court found "no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification[.]" If all other arguments against gay marriage fall flat (and indeed, this post is at least an attempt to show that they do), how then can any honest court not similarly find no legitimate overriding purpose independent of invidious sexual orientation discrimination which justifies this classification? Especially if one affords gays and lesbians the status of suspect class as was done by the California Supreme Court (though I’d argue that prohibitions on same-sex marriage fail even a rational basis review). Absent a damned good reason, people ought to be able to marry who they want. To quote Mildred Loving, "That’s what Loving, and loving, are all about."

But, if you’re determined to not view gays and lesbians as a suspect class, and you insist that rational basis really just means any basis whatsoever however irrational), you’ve still got to contend with the fact that gender, as a class, requires at least intermediate scrutiny and prohibitions on same-sex marriage are undeniably examples of gender discrimination. Should a woman be denied the right to marry a woman when a man has that right? And since there are unequal populations of males versus females, it’s not even accurate to argue that both men and women are equally handicapped by the restrictions.

Gay people only want to get married to gain acceptance for their "lifestyle."

Guessing at the motives of groups you’re not a part of is dangerous at best, and certainly most gay people would dispute such an assertion as to their motives, but really, does it even matter? From the viewpoint of the government, it shouldn’t matter why a group of citizens wants certain rights, but only whether they are entitled to them. Most gay couples who would like the option to get married, want it to protect their families, solemnize their relationships, live under a set of rules that more closely match their place in society (two living as one), and gain acceptance from family and friends. Each of those holds a different priority for each couple, and all of them are valid reasons, but even if none of them were, the Equal Protection clause doesn’t end with "if you have a good reason." People don’t have to justify their claims to equality.

It’s an issue that should be decided by the voters, not "activist judges."

There’s a legitimate debate to be had over whether the rights of groups of people should be left to the (often fickle) whim of public opinion. For instance, was slavery OK when the majority of people would have voted in favor of it? And if we should vote on human rights, didn’t we already vote on this issue when the constitutions and amendments containing equal protection clauses were ratified? Seems to me that the people have spoken and decided that equal protection was something we wanted in this country. If they’ve changed their minds, then the only true remedy is to repeal those clauses. The bigot amendments that have passed have placed another level of complexity in their respective states by introducing a contradiction into their constitutions. A judge presented with a same-sex marriage case in one of those states will find themselves in the unenviable position of having to become actual activist judges because any decision they make would be a violation of one part of their constitution or another.

But the judges who have already made the decisions, were they activists? Unless your definition of "activist judge" is "any judge who makes a decision I disagree with, the answer is clearly "no." The judges were asked to decide if denying gay people equal marriage rights violated their constitutions’ guarantee of equal protection, and they decided that it did. What is so activist about upholding the constitution? What other job could a judge possibly have? When the law violates a citizen’s constitutional rights, a judge only has the option of striking either the entire law from the books, or striking the language from the law that runs contradictory to the constitution. Judicial activism would mean creating a new law that did not previously exist. That simply hasn’t been done in these cases.

I’ve heard it said that gay couples themselves should be working to win hearts and minds instead of suing for their rights. Gay people, by and large, are striving to win hearts and minds, but when one’s rights are being denied, where does one go other than the courts? The denial of equal marriage rights means that the law was broken in such a way that it caused harm to gay couples who wished to marry. If your neighbor stole something from you, would you contact your legislator and ask that they propose legislation to outlaw stealing? Of course not, because stealing is already against the law. Similarly, when gay people are confronted with a violation of equal protection, they don’t contact their legislator and as them to pass equal protection legislation; that legislation has already been passed.