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June 17, 2005



Thank you for undertaking this summary/editing - very useful for those of us feeling too lazy to read the entire thing!

One minor nit-pick: the link to "this amicus brief filed by more than 100 New Jersey clergy members" appears to be broken.


Thanks! I've fixed the link. Incidentally one of the clergy members to sign that brief was Rabbi Sally Priesand, the first female rabbi in the United States.


I will deal strict with Collester's dissent. Of key importance in his decision is the fact that he bases none of it on what the law actually says, but what he believes it should say based on his perception of what changes society has undergone. This is well beyond the perview of the courts and an activity entirely vested in the legislature. The vote, and not the courts, are how our society manifests its changes.

In the ongoing public debate there are persons of intelligence, sensitivity and good will on each side of the issue.

Even in his dissent Collester argues against the MSJC wild finding of no rational basis in marriage.

The right to marry is effectively meaningless unless it includes the freedom to marry a person of one's choice.

Collester's whole argument hangs on this one, flimsy thread. That there is no "freedom to marry a person of one's choice" is empirically obvious by noting that Brad Pitt and Tom Cruise are both unmarried despite the choice many would make to marry them. Beyond that, Collester then discredits his own basis by drawing attention to several limitations on that "freedom," e.g., youths, family relations, and the mentally incompetent. One further restriction he omits is a person already married. Indeed, the "freedom to marry" someone who is currently married goes against even Galois's deliberately restricted view of the purpose of marriage.

In rejecting the argument, the Supreme Court framed the issue not as a claim of right to interracial marriage but rather as an assertion of a fundamental right to marriage.

This is revisionist history of the purest kind. The court in Loving v. Virginia directly addressed the interracial issue in its ruling. It did not, as Collester would have us believe, define the race issue out of the question in order to rach its conclusion.

There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated "distinctions between citizens solely because of their ancestry" as being "odious to a free people whose institutions are founded upon the doctrine of equality."

The court's decision clearly referenced race and further tied it in with a longstanding rejection in America of a British style caste system. Despite Collester's yearning to do so, that reasoning cannot be extended to same-sex couples.

The majority grounds its definition of marriage excluding persons of the same sex upon historic or religious tradition...

Interesting to see the straw-man tactic is not limited to the internet. The appeals court made no claim of religious authority in finding marriage to be a man-woman relationship.

...However, there is not, nor could there be, a threshold requirement to marriage of the intention or ability to procreate.

Irrelevant. Not only is forced procreation odious to a free society, it is clearly not responsible procreation. Inventing onerous state involvement to refute the purpose of marriage is either poisoning the well, an egregious logical lapse, or both.

Of course many heterosexuals marry for reasons unrelated to having children.

Again, irrelevant. People have different reasons for seeking a driver's license as well. What matters to the state is not the individual's purpose in seeking the license, but the state's purpose in giving it.

Also if procreation or the ability to procreate is central to marriage, logic dictates that the inability to procreate would constitute grounds for its termination.

This is another egregious error in logic. One could not argue against the purpose of seat belts to promote public safety simply because the state could also have chosen to encase passengers in styrofoam and chose not to. The state is not required to engage every possible test of procreative capacity in order to accept its possibility.

Finally, there is nothing in the record to indicate that the eight plaintiffs in this case currently raising or having raised children as natural parents, adoptive parents or step-parents, are providing an environment for growth and happiness of the children that is anything less than optimal.

This argues that children are not a consideration in marriage at all. Finding that the children in this case, all of whom are the result of marriage failures of one type or another, and being raised outside of marriage are in fact in "optimal" conditions. The lack of a father or a mother or a stable, commited environment notwithstanding. This is moral relativism, pure and simple.

...What Sarah Lael and her partner lack and seek may be summed up in the word dignity. But there is more they will gain from lawful marriage. That something else goes to the essence of marriage and is probably best left to poets rather than judges.

So. After spending his entire ruling ripping out every possible purpose the state has in recognizing marriage, with what does Judge Collester replace it? Well, he's not quite sure. You'd have to ask the poets.

In Collester's opinion, the reason marriage is such a universal throughout human history, the reason why marriage has always been a fundamentally procreative unit, the only entity recognized by society for that potential to procreate is simply as a capricious device to make some people feel dignified and others not. The procreative stuff is all just some wild coincidence that happens to hold throughout all societies, cultures, and time. It's not because there is any value in responsible procreation or harm in irresponsible procreation, there'd be fertility squads roaming the countryside if that were true. It's not for children. Children of broken homes are being raised in optimal conditions even without marriage. Nope. It's just because as a society we have an interest in bestowing dignity in some places and not others. This violence perpetrated on marriage in an effort to reach the foregone conclusion of same-sex marriage is direct refutation to those who claim same-sex marriage strengthens or even does not damage marriage.

Mr. John Howard

>Interesting to see the straw-man tactic is not limited to the internet.

Yeah, I got the distinct impression that Collister got his law degree from Alas, A Blog.


I had no idea the majority opinion was so outrageous. Good work.

It seems the key issue facing the SCNJ, as is often the case, will be precisely how to read Zablocki and whether (and if so, then how) the anti-gay factions will attempt to tiptoe around its very clear refutation of the idea that Loving was "only about race."

Zablocki unambiguously raised marriage -- every twist and turn of it -- to the status of "fundamental right" entitled to strict scrutiny. If you accept that, then you accept gay marriage. QED.

Mr. John Howard

But of course there is a fundamental right to marriage. No one is denied this right. Zablocki, like Loving, explicitly based the right to marriage on the fact that it was only in marriage that a person is able to avail themselves of their basic civil right to procreate. In both cases, if fornication were legal, the outcomes of those cases would have been precisely the opposite. There would be no basic civil right to marry at all if it were not the only way to legally procreate.

Mr. On Lawn

Wow, Op-Ed, I had no idea the minority opinion was so outrageous. Good work!

That was a very clear refutation of his misuse of Loving.

Mr. On Lawn

Okay, okay, I appologize for having fun at KipEsquire's post. I suppose it is from my upbringing on USENET where they mercilessly poked fun of how much a non-response a "me too" post is.

Your okay Kip, and please accept my appology :)


Yeah, I got the distinct impression that Collister got his law degree from Alas, A Blog.


Great work Op.



Your attempt to extend Zablocki to cover same-sex marriage is at least as hopeful a stretch as attempting the cover with Loving, and certainly more flawed in approach.

In Zablocki, in fact, the Supreme Court tied marriage to procreation and found that procreation was covered by a right to privacy, and therefore so was marriage.

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

Your next assertion:
Zablocki unambiguously raised marriage -- every twist and turn of it -- to the status of "fundamental right" entitled to strict scrutiny.

is directly contradicted by the text of the opinion.

By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny.


>Yeah, I got the distinct impression that Collister got his law degree from Alas, A Blog.
Great work Op.

Actually, that was John Howard who said that, but I agree. Great work, John!


And yet the court rejected this amicus brief filed by more than 100 New Jersey clergy members from a variety of faiths arguing that this religious and spiritual dimension is equally vital for homosexual couples and their religious communities.

As well they should. Just as they would reject a petition from Mormon church clergy members asking the state to recognize marriages that endure beyond death. Religious marriage is not the same thing as state marriage.

If religion wants to hitch a ride on the state bandwagon, then great, so long as they are going in the same direction. But when religion starts telling the state where to drive the state wagon, that's when the state needs to politely say tell religion where it can get off.


I gather from M.T. that a relationship qualifies as a lawful marriage if the genitalia of the partners are different so that they can engage in sexual intercourse.

That's a rather foolish interpretation. Marriage is a union of a man and a woman for life. There's nothing about genetalia in the law. You don't need genetalia at all to get married. There are people with no lower bodies who get married. If the court finds that you are a woman, then you can marry a man. Period. The court may use anatomy as evidence to determine whether a person is male or female, but not the ONLY evidence, see the bolded portion below:

We held that M.T. was a woman, that the marriage was valid and that she was entitled to support for the following reason:

Plaintiff has become physically and psychologically unified and fully capable of sexual activity with her reconciled sexual attributes of gender and anatomy. Consequently, plaintiff should be considered a member of the female sex for marital purposes. It follows that such an individual would have the capacity to enter into a valid marriage relationship with a person of the opposite sex and did so here.

It's not rocket science, Galois. The court found her to be female. Why do you have a problem with that? Like I've said, if gay men wanted to actually marry (rather than to neuter the definition of marriage), they should be asking the judges to find one of them female for the purpose of marriage. But you've rejected "don't ask, don't tell" marriage, so why are you griping?

Accordingly, history and procreation are irrelevant provided surgery is successful, and the new woman and her partner are then entitled to a constitutional right to marry that neither he nor she had in the pre-op room. Constitutional rights should not be limited by genitalia or the ability to engage in a particular form of sexual intimacy.

Come, Galois, there is no constitutional right to choose the sex of the person you marry.

Besides, your assertion is conclusory. The court looked at psychological integration as well as anatomical differences. You haven't established that the court would have rejected her as female, pre-op.

The definition of marriage is a fragile thing, and the lynchpin of our civilization. Among other things, gendered marriage holds in place the idea of a man's legal and cultural duty to and relationship to "his" children.

Even cave-men and animals can distinguish male from female.

Consequently, we can afford to be flexible about our definition of sex, while we cannot afford any such flexibility with regard to the definition of marriage.

Face it -- people aren't about to stop breeding. But cultures can lose the imperative concept of fatherhood, and when they do, hell, Galois, things fall apart. Look at the inner cities, if you care.


Zablocki, also recognized the child's need for a father as well as a mother, since one of the reasons the Court found for the deadbeat dad, was that he might father kids anyway, and marriage would make him more likely to maintain a regular relationship with his own:

although it is true that the applicant will incur support obligations to any children born during the contemplated marriage, preventing the marriage may only result in the children being born out of wedlock, as in fact occurred in appellee's case. Since the support obligation is the same whether the child is born in or out of wedlock, the net result of preventing the marriage is simply more illegitimate children.


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