> > I'm completely with Dave here; leave it up to the states it illegal, [. . .] That seems like a pretty good compromise to me.
>
> It sounds like a good compromise to you, but same-sex couples don't exactly enjoy being "separate but equal". (see below)

You don't always get what you want in a democracy*. Part of living peacefully in a democratic society is realizing what you can get and what you can't get, and compromising. The process is designed to make things difficult for ideologues.

> As I see it, there are two problems. One is that equality rights should not be a matter of popular opinion, and the other is that the US Supreme Court, who is supposed to be minorities' last line of defense for their Constitutional rights, isn't all that fond of gay rights. I agree that solving one wouldn't solve the other.

The Court has never given gays any sort of protected status. You're saying they should be considered so. Perhaps. But the fact is there's no basis for it in US law, be it federal statutes, the Constitution or Supreme Court case law. If you wish to harm the cause of gay rights, there's no better way than to get nine unelected people to begin forcing unpopular and totally new precedents upon the American public.

> I don't think this would be terribly difficult to enforce. It's a simple matter of performing marriages, and it'd be pretty clear if somebody was not complying. It's a lot less subtle than picking one of 40 white applicants out of 50 people who apply for a job. There aren't even plausible excuses for refusing two people a marriage license.

I don't want to sound condescending here, but this statement reveals a huge lack of knowledge about the history of the enforcement of civil rights decisions in the United States. Consider that we specifically amended our Constitution to allow blacks to vote, and it took about 100 years for this to be actually enforced everywhere. You'd think that it would be about the same as granting marriage licenses.

There are tons of places you can make it more difficult. You can add extra fees for gays who are going to get married. You can require extra paperwork, make the process take years (while streamlining straight marriages). You can give them a different colored marriage license.

Hell, you can flat-out refuse to give them a license at all in defiance of the Court's decision. If the presidential administration at the time doesn't feel like enforcing a court ruling, there's not much the courts can do.

Consider racial desegregation in public schools (a decision handed down by the Supreme Court in 1954). Famously, the governor of Arkansas refused to allow the schools to desegregate, and it required President Eisenhower to actually federalize the Arkansas National Guard and deploy US troops to enforce the decision. Eisenhower was extremely reluctant to do this, and a president outright opposed to the Court's decision could very well have done nothing.

Obviously that's an extreme example and I find it unlikely that any state would use their National Guard to prevent a gay marriage license being issued. But desegregation provides other examples.

Consider that in the 1980s, private schools were allowed to practice racial segregation but were not eligible for tax-exempt status if they did so. There were quite a few schools that were receiving tax-exempt status that were discriminating as well. The Reagan Administration wouldn't put any pressure on the IRS to get their act together, and a lawsuit brought forward by the parents of black children was tossed out by the Court.

I don't want to ramble, but I'just trying to show you how difficult it is to enforce unpopular decisions. The courts in America have little power to do anything without the help of the other branches of government. Because we have a federalism, we have 51 separate court systems (a court system in each state plus a national court system for federal issues). The national system is also fractured into different circuits and districts, and orders handed down in one are not binding upon the others.

Throw into the mix 50 different state governments, plus local governments, and there is a lot of bureacracy to deal with. Don't underestimate it.

> The problem is, some level of government has to be in the marriage regulating business, because you can get married civilly.

Why not end this? Why have any kind of civil recognition of marriage?

> So at some point, there has to be a definition of who can or can't marry. If that definition is discriminatory, that's when the Courts have to step in.

All sorts of laws are discriminatory. Income taxes discrimate against the rich. Minimum voting ages discriminate against the young. Mandatory retirement ages for police officers discriminate against the old. Laws that prohibit men from entering a woman's bathroom discriminate against men. None of those are unconstitutional or illegal.

As much as you may think gays deserve recognition as a special class, the courts have not given them it. So far, the only category to have strong judicial protection from discriminatory laws are racial minorities. Women have a more limited form of protection, but otherwise states are allowed to discriminate against people for whatever reason they want, so long as they can show that the discrimination has a rational basis relating to a legitimitate government interest.

You may also think this is terrible. Maybe so. But the proper way to make new laws is by making new laws, not going through the courts. I am all for the courts taking an active role in policy creation to defend fundamental rights, and to defend groups that have really been rendered politically helpless by systemic discrimination.

It's pretty hard to see how gay marriage fits in those categories. Getting married hardly seems a fundamental right to me (and my definition of fundamental rights is probably less strict than the Supreme Court's these days), and I don't think that gays have been rendered politically powerless by systemic discrimination.

Gays and other champions of gay rights form a gropu that includes a lot of people, and they're all active and vocal participants in the political process. Just being a political minority, though, gives you no special privileges. You have to convince other people that your cause is right, and it takes time. That's a bummer some times, but in the long term it works pretty well. The supporters of gay rights should fight the good fight in the newspapers and legislatures of the country, not its courtrooms.

> First of all, gay people feel like they're being treated separate but equal, so the creation of a separate type of union for them directly impacts their dignity as human beings, in exactly the same way as a black person who has to drink from a separate but perfectly operational water fountain.

I don't find the two comparable at all. One requires that you actually use separate facilities, in public, while the other gives you a different name for the same legal fiction. In the case of marriage we're also dealing with adults, and I assume that they're a little better able to cope with it than the children who were the primary focus of the two Brown decisions ending "separate but equal." And none of this deals with the fact that, in almost all cases, "separate but equal" facilities really meant "separate and completely unequal" facilities.

> Second, if it's possible (and relatively simple, if someone wanted to) to give them the same rights as married people while calling it the same thing (i.e. make them equal without being separate), what's the point of giving them a separate label?

I don't know. Hell, if it were popular, I'd say let them get married (but I'd still prefer the government stop regulating marriages). But it's incredibly unpopular to allow gays to be married, while the idea of civil unions (same thing, new name) is pretty popular. It doesn't have to make sense. Sometimes in democracies people are allowed to hold opinions that we don't understand. In such cases, rather than trying to force our own personal rationality upon them against their will, doesn't it seem better for all involved to just take the easier compromise?

Stephen

* But if you try some times, you just might find, you get what you need.