Longtime Houston attorney Tom Kirkendall's observations on developments in law, business, medicine, culture, sports, and other matters of general interest to the Houston business, professional, and academic communities.
3 thoughts on “The Constitutional Case for Marriage Equality”
Ted Olson lied about his wife’s alleged phone calls
on 9/11 – supposedly made to him while she was aboard AA FL77, and many people believe that Barbara Olson not only isn’t deceased, but
instead simply took the name
Lady Booth, and remarried Ted after an appropriate
grieving period following 9/11.
Ted Olson earned his bones first whenever he convinced the Supreme Court to stop the FL election recount in 2000, thereby enabling GW to
become President.
Surely the folks at The CATO Institute could have found a more credible, less controversial, equally smart advocate to make the same points. Ted does know a thing or two about marriage though.
I thought it was interesting that the entire idea of marriage as an institution based upon procreation was discounted so quickly and out of hand based on the ‘evidence’ that children are being successfully raised in same sex households and some opposite couples don’t intend to raise kids. There is a statistic which bears some thought before a fundamental re-definition of marriage occurs with the attendant unforseeable (and hence speculative) social fallout which may accompany it. Neither such fallout nor the absence of such fallout can be predicted with certainty. But when we seek to redefine fundamentals, the potential for unforeseeable adverse social change is worthy of being given some weight in the decision. Even the comparatively liberal citizens of the state of California thought by a majority vote that this was a risk not worth taking.
Less than 4 tenths of one per cent of children live in US households headed by a same sex couple. (Source – Dr. Jennifer Roback, a traditional marriage defender). Dr. Roback’s statistic seems very low to me when the figures on the predominance of homosexuality I’ve seen tend to cluster around 10% of the US population. The predicted value for this figure must be at least ten times as high as this? If the figure is correct, however, it seems to me to militate against going forward on this modification of marriage at this time.
It isn’t sensible to design our fundamental family institution to accommodate every potential life style choice whether it contemplates the raising of children or not. Should the “child-free” exception be permitted to drive a change in the rules?
While it is true that a number of oppositie sex couples have a fixed intention not to procreate when they marry, I think we’d all agree that with most such couples (ones lacking the intention to procreate) the potential of procreation will nevertheless be present in that marriage. Artificial birth control is typically not 100% effective.
If it were true that the advocates for same sex marriage were seeking the re-definition of marriage in order to provide societal support for many more such couples adopting and raising children, I might be persuaded that it is a good idea to take the risk of making such a fundamental change to our cultural and societal (although not our religious) rules. Although it is possible that if the right to marry were extended to same sex couples it could spark a tremendous increase in the number of children raised by such couples, I doubt it very much. There is no evidence of this motivation for the same sex marriage movement. Can it be very wise, then, for us to redefine one of our culture’s “fundamental charters” in order to accommodate a comparatively small number of children, 4 tenths of one percent? Shouldn’t we at least try to anticipate how many “child-raisers” there would ultimately be among the newly enfranchised? Is it wise to run such a risk when only a small number of people would apparently use the legal benefits of marriage for what appears to me to be their clear and originally intended purpose, that is to support stable families for the rearing of the next generation?
Were the provisions of the 14th Amendment really intended to cover same sex marriage? On the other hand the provisions clearly contemplated protecting and extending the fundamental rights of slaves to be free of impediments based upon their race.
The argument that government has no business controlling the conditions of marriage because it is a fundamental right is confounded by the observation that there are other conditions with respect to marriage that I am sure all the commentators would support. For example the age requirement represents a governmental interference that has a logical basis in assuring that the participants in a marriage are competent to enter the union. Likewise the Texas requirement that a marriage may not be consummated within 30 days (as I recall) of the divorce of one of the parties can be seen as a very minor impediment that has a social purpose.
I am also fairly certain that every state has some restriction that a valid marriage may not be consummated within a specified degree of consanguinity for genetic reasons. I do not find that restriction can be avoided by submitting evidence that the female participant may not bear children. Moreover, if same sex marriage is permitted, is there a valid reason not to permit such a marriage between persons within even the first degree of kindred? Does the impediment of consanguinity only affect opposite sex couples who are capable of procreating? Brothers or sisters might still enter a same sex marriage if union represents the exercise of a basic and nonregulable human right. Whether that is a condition that requires regulation is a question I will leave open.
Carrying this a step further, think of how estate taxes might be avoided if an older wealthy individual might marry a younger same sex spouse while only “living with” their traditional opposite sex partner. Such a union precludes the possibility of procreation under the same sex marriage arrangement, yet the estate could pass to the surviving “spouse” bypassing the estate tax. I am sure innovative lawyers could dream up the contractual or trust obligations that would protect the opposite sex partner and the children of the opposite sex relationship. With the motivation of avoiding a potentially large estate tax, such an arrangement might potentially be continued indefinitely, enabling fortunes to be amassed without any estate tax interference. Again, there is an issue that readers may or may not think is worthy of regulation.
I am personally not opposed to permitting same sex couples to enjoy the rights and privileges that have been traditionally extended to married individuals under governmental regulation, but to say that marriage is an institution that should somehow be free any government controls simply does not recognize the complex web of laws that we live in. I am certain that examples other than the estate tax abound. The legislation that permits same sex “marriage” should require careful crafting that goes beyond the simplistic analyses that most of its proponents advance.
Ted Olson lied about his wife’s alleged phone calls
on 9/11 – supposedly made to him while she was aboard AA FL77, and many people believe that Barbara Olson not only isn’t deceased, but
instead simply took the name
Lady Booth, and remarried Ted after an appropriate
grieving period following 9/11.
Ted Olson earned his bones first whenever he convinced the Supreme Court to stop the FL election recount in 2000, thereby enabling GW to
become President.
Surely the folks at The CATO Institute could have found a more credible, less controversial, equally smart advocate to make the same points. Ted does know a thing or two about marriage though.
I thought it was interesting that the entire idea of marriage as an institution based upon procreation was discounted so quickly and out of hand based on the ‘evidence’ that children are being successfully raised in same sex households and some opposite couples don’t intend to raise kids. There is a statistic which bears some thought before a fundamental re-definition of marriage occurs with the attendant unforseeable (and hence speculative) social fallout which may accompany it. Neither such fallout nor the absence of such fallout can be predicted with certainty. But when we seek to redefine fundamentals, the potential for unforeseeable adverse social change is worthy of being given some weight in the decision. Even the comparatively liberal citizens of the state of California thought by a majority vote that this was a risk not worth taking.
Less than 4 tenths of one per cent of children live in US households headed by a same sex couple. (Source – Dr. Jennifer Roback, a traditional marriage defender). Dr. Roback’s statistic seems very low to me when the figures on the predominance of homosexuality I’ve seen tend to cluster around 10% of the US population. The predicted value for this figure must be at least ten times as high as this? If the figure is correct, however, it seems to me to militate against going forward on this modification of marriage at this time.
It isn’t sensible to design our fundamental family institution to accommodate every potential life style choice whether it contemplates the raising of children or not. Should the “child-free” exception be permitted to drive a change in the rules?
While it is true that a number of oppositie sex couples have a fixed intention not to procreate when they marry, I think we’d all agree that with most such couples (ones lacking the intention to procreate) the potential of procreation will nevertheless be present in that marriage. Artificial birth control is typically not 100% effective.
If it were true that the advocates for same sex marriage were seeking the re-definition of marriage in order to provide societal support for many more such couples adopting and raising children, I might be persuaded that it is a good idea to take the risk of making such a fundamental change to our cultural and societal (although not our religious) rules. Although it is possible that if the right to marry were extended to same sex couples it could spark a tremendous increase in the number of children raised by such couples, I doubt it very much. There is no evidence of this motivation for the same sex marriage movement. Can it be very wise, then, for us to redefine one of our culture’s “fundamental charters” in order to accommodate a comparatively small number of children, 4 tenths of one percent? Shouldn’t we at least try to anticipate how many “child-raisers” there would ultimately be among the newly enfranchised? Is it wise to run such a risk when only a small number of people would apparently use the legal benefits of marriage for what appears to me to be their clear and originally intended purpose, that is to support stable families for the rearing of the next generation?
Were the provisions of the 14th Amendment really intended to cover same sex marriage? On the other hand the provisions clearly contemplated protecting and extending the fundamental rights of slaves to be free of impediments based upon their race.
The argument that government has no business controlling the conditions of marriage because it is a fundamental right is confounded by the observation that there are other conditions with respect to marriage that I am sure all the commentators would support. For example the age requirement represents a governmental interference that has a logical basis in assuring that the participants in a marriage are competent to enter the union. Likewise the Texas requirement that a marriage may not be consummated within 30 days (as I recall) of the divorce of one of the parties can be seen as a very minor impediment that has a social purpose.
I am also fairly certain that every state has some restriction that a valid marriage may not be consummated within a specified degree of consanguinity for genetic reasons. I do not find that restriction can be avoided by submitting evidence that the female participant may not bear children. Moreover, if same sex marriage is permitted, is there a valid reason not to permit such a marriage between persons within even the first degree of kindred? Does the impediment of consanguinity only affect opposite sex couples who are capable of procreating? Brothers or sisters might still enter a same sex marriage if union represents the exercise of a basic and nonregulable human right. Whether that is a condition that requires regulation is a question I will leave open.
Carrying this a step further, think of how estate taxes might be avoided if an older wealthy individual might marry a younger same sex spouse while only “living with” their traditional opposite sex partner. Such a union precludes the possibility of procreation under the same sex marriage arrangement, yet the estate could pass to the surviving “spouse” bypassing the estate tax. I am sure innovative lawyers could dream up the contractual or trust obligations that would protect the opposite sex partner and the children of the opposite sex relationship. With the motivation of avoiding a potentially large estate tax, such an arrangement might potentially be continued indefinitely, enabling fortunes to be amassed without any estate tax interference. Again, there is an issue that readers may or may not think is worthy of regulation.
I am personally not opposed to permitting same sex couples to enjoy the rights and privileges that have been traditionally extended to married individuals under governmental regulation, but to say that marriage is an institution that should somehow be free any government controls simply does not recognize the complex web of laws that we live in. I am certain that examples other than the estate tax abound. The legislation that permits same sex “marriage” should require careful crafting that goes beyond the simplistic analyses that most of its proponents advance.