Monday, August 9, 2010

Same Sex Marriage: When Did the Alleged Right Emerge?
Mike Rappaport

An interesting poll over at Volokh from Orin Kerr, with readers believing the right emerged at a variety of times, ranging from the 1700s, to the 1800s, to the Warren Court, to the Rehnquist Court, and finally to the last five years.  Quite interesting.  There is an interesting law review article embedded in this question.

https://rightcoast.typepad.com/rightcoast/2010/08/same-sex-marriage-when-did-the-alleged-right-emergemike-rappaport.html

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Comments

Shouldn't it be: "When was the alleged right to traditional marriage outlawed?"

Posted by: Torrey Surfer | Aug 9, 2010 2:58:10 PM

Lest we forget, the Spartan males were ALL pederast, and who knows what the women were up to, yet no one thought to promote marriage within the same sex. This idea is the result of the unrestrained democratic passions Tocqueville warned of. "Democratic communities have a natural taste for freedom, but for equality their passion is ardent, insatiable,incessant, and invincible."

Posted by: james wilson | Aug 9, 2010 9:18:49 PM

"Spartan males were all pedarast." For one thing, that is not nercessarily borne out by the sources, particularly some things in Plutarch. More importantly, the verdict of evolutionary anthropoplogy is against Spartan culture. They had developed many bizarre institutions whech turned out to have been a cultural dead end. Their garrison-state slaveovracy would not have withstood the Romans had it not already succumbed to the Thebans

Be that as it may, the observation that the heterosexual marriage norm persisted even there is relevant to this issue. Some institutional recognotion of relationships between practititoners of homosexual acts is an anthropological rere bird indeed. Consider that human societies try out all sorts of patterns of culture. Some ways of thinking and acting surviver, prosper, overcome and propagate; others fail the test of adaptation to reality and sputter out of existence, or are brusquely shouldered aside by cultural technologies which work better.

Because of the value of mobilizing the sexual drive in service of not just spawning, but raising and educating successive generations of children, civilizations upholding the heterosexual marriage norm have surpassed while those other cultural outliers have gone under.

For all that, the Equal Protection arguments floating about this issue depend on the unsupported assumption that persons who commit homosexual acts or who prefer such acts as a sexual graqtification are a classification in the sense that members of a gender or race are a classification. That is absurd, as though we were to hold that those with a propensity for violence were entitle to their own version of the law of assault.

Posted by: Lou Gots | Aug 10, 2010 5:58:06 AM

Not that I like the courts making these kinds of societal decisions, but where in the constitution is 'traditional' marriage defined as a right at all?

I would rather society, than the courts, make these kinds of determinations, but come on. 'Traditional' marriage has hardly been a stagnant thing through out human history. It's not even a stagnant institution world wide today.

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So, in a panic, I called BossLady today to discuss this with her. She not only reminded me that we'd been to several weddings where the couples had met online but she also alerted me to the fact that times had changed and I should embrace technology and the world of online dating. She even gave me a ton of advice about which dating sites to avoid. Awesome!
Here's the problem. sdf
As my buddy James has reminded me, I have a somewhat offbeat sense of humor. If I'm going to date online, I might as well cut to the chase. As James said, "Listen, bro. They're going to find out sooner or later. You might as well float it out there." Good advice.

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