The Federalist Society

Debate Comments

[Erik Stone]

Marriage can not, and never will exist between two people of the same sex, even if government condones and promotes the idea of it being possible. If someone can give me a logical reason why people who cannot physically have kids should be able to pretend to be parents, and pretend to be something other than they are, fine. A logical reason would be that we are overpopulated on the planet and we should start killing poor people who don't work. Having people marry and not have kids would be great to keep the population at bay. However, despite these logical reasons, I don't think they are good or humane solutions.

[Austin R. Nimocks]

The debate’s focus on whether the institution of marriage will benefit couples who choose to engage in homosexual behavior seems to typify many of the talking points of those in favor of same-sex marriage. From the perspective of those who support this notion, the concern is usually about what the government owes or should give. The picture that comes to mind is that the government is somehow a big benefactor, handing out benefits, and those who support same-sex marriage are asking why don’t I get one? While it is argued herein that marriage will help same-sex couples, that question is irrelevant to the debate. Respectfully, anyone can state the obvious that when the government gives something away, it helps the gift recipient. If the government gave me $50 million, it would undoubtedly help me. However, the government doesn’t collect taxes so it can give me a windfall, as there is a higher purpose and reason behind our country’s tax code. Similarly, in this debate, nobody is asking the right question to begin with why is government in the marriage business? In other words, why do we have marriage laws? I’ll give you a hint. It’s not for recognition or acceptance, and it’s not an arbitrarily-created structure for the doling out of financial benefits.

[Kevin Fogarty]

The handful of legal and employment disadvantages resulting from the absence of gay marriage are minor, are ever decreasing and were never the the real motivation for the demand for gay marriage. The point rather was to have the government seem to adopt an official position that those who regard homosexual relations as morally deviant are wrong. The government should stay out of it.

[Paul Crist]

Regardless of one's view of the "deviancy" of homosexual "relations," I find it refreshing for Alliance Defense's commentator and the subsequent post both to take the position that the state should stay out of defining legitimate union between however many people. Equality would let the FDLS polygamists as well as ssm as well as me and my goat get identical treatment under the tax code and every other statute. If some denomination will sanctify it, the state should not attempt to delegitimate it on the basis of some other denomination's prejudices.



[Edward J Dietrich]

It is interesting that this whole debate has come down to sexual activity. I'm wondering if any of you have given consideration to the possibility the bisexuality is the norm. I believe that there are a number of variables that will, in the long term effect this debate.


Conspicuously absent from the Federalist Society polemic on Same-sex marriage are the LEGAL and BIBLICAL grounds for it.

While arguments for and against same-sex marriage were posited from SOCIAL, CULTURAL, and MORAL perspectives, such as monogamy, polygamy, and polyamory, etc. in relationship to same-sex marriage, as well as the probable desire for acceptance and recognition from mainstream society in America opposed traditionally to homosexual or same-sex marriage, absolutely NO LEGAL or BIBLICAL benchmarks or bases were invoked!

This is very disturbing since as I mentioned such a polemic problem will undoubtedly foster more and more contempt for God's ordained institution of MARRIAGE!

How patently absurd to entertain every conceivable facet of an argument except the MOST SALIENT and RUDIMENTARY; namely: God's word and constitutional law in America predicated for the most part in regards to family law (i.e. marriage) upon God's moral compass for mankind, the bible!

This faulty and skewed logic is anything but sound and salutary. It is dangerous and deleterious and damning in the sense that no "spiritual" health concerns are even considered valid or real.

The MANDATED CA public school HEALTH textbook published by HOLT, entitled, "Lifetime Health" actually includes a "spiritual" health component among the "6" generally accepted parts of one's health and wellness; those being: 1. physical, 2. environmental, 3. mental, 4. emotional, 5. social, and 6. spiritual.

All the 4 debaters in this published didactic debate have done is skirt the real substantive issues so as to marginalize or minimize the MOST SALIENT or RUDIMENTARY, again the BIBLICAL and LEGAL bases for or against same-sex marriage.

1st, as far as the LAW is concerned, contrary to the 4 CA supreme court justices who unconstitutionally usurped the will of We the People in CA by an absurd vote of 4-3, there is NO mention of "sexual orientation" ever in the U.S. or CA Constitutions, including the "equal access" or "equal protection" provisions same-sex proponents invariably like to promulgate are there and their fundamental right to legitimize their sinful or illegitimate lifestyle.

Sodomy laws were and still are on the books in most state constitutions for just and good reasons. The bible prohibits such sexual perversion as a natural protection from diseases like AIDS.

People shy away from these warranted prohibitions to excuse and seek societal and legal, if possible now, affirmation and acceptance of what God has deemed unacceptable and unhealthy.

God created MARRIAGE and man is attempting yet again to thwart and tempt God's grace and goodness towards our nation as we have in the case of Roe-v-Wade and abortion. Man and his traditions, pagan in their origins, devoid of any spiritual soundness emanating from the tenets of truth rooted in God's word, clash constantly and carelessly with the boundaries and protections such biblical prohibitions guarantee.

There is NO "sexual orientation" fundamental right or guarantee in either the U.S. or State Constitutions. NONE! This is a LIE! This is a deliberate and diabolical attempt to REDEFINE MARRIAGE as God intended it and to superimpose, if left unchallenged or unchecked, a profoundly illegitimate and illegal (as far as God's law is concerned and most states) sexual status in America for those who believe they deserve EXTRA or SUPRA rights all men and women are already afforded in both the federal and state constitutions based on gender, race, and religion.

We the People are to look to the Constitution, NOT bought and paid for justices legislating from the bench a politically correct, well-financed, unconstitutional point of view.

The utter contempt and hubris inherent w/in the same-sex marriage arguments in favor of such ungodly unions was alluded to by Mr. Nagle or Ms. Wax in the polemic, too.

The biblical prohibitions to homosexuality or sodomy or any other form of sexual perversion, including heterosexual, are there to warn us and protect us, NOT to restrict our rights from what is good and fundamentally guaranteed as such.

These fundamental rights are reserved for unalienable or God-given rights to life, liberty, and the pursuit of happiness.

The bible further warns us that when justices or judges begin to condone and call evil good or good evil that that society, nation, or culture will be judged, and God judges nations NOW, not later like individuals when they die.

Our children are proof positive that MARRIAGE as God created and intended it must be HETEROSEXUAL to procreate and protect the most fundamental fabric of our society, the FAMILY!

If anything goes, which is exactly what the GAY AGENDA is seeking (i.e. legalizing the age of consent to the ludicrous low level of 8 years old in some camps like NAMBLA et al) in this power grab through 4 CA supreme court justices usurping unconstitutionally the vote of over 61% of CA voters in 2000 in favor of MARRIAGE remaining solely between 1 MAN and 1 WOMAN!

These 2 arguments against same-sex marriage are again conspicuously and sadly absent from your polemic between the 4 debaters. Why?

I respectfully submit to you that this clever and intentional omission of both BIBLICAL and CONSTITUTIONAL/LEGAL bases against same-sex marriage reveals how fundamentally flawed and frivolous any argument in favor of same-sex marriage actually is, regardless of how powerful or popular such Beverly Hills Big Bucks organizations like G.L.I.D.E. are now in public schools across America.

The fact that CA has rewritten it's CA ED CODE to require "same-sex" marriage or "sexual orientation" be treated as equal to race, gender, and religion reveals yet again the current cross-country contempt for BIBLICAL and CONSTITUTIONAL underpinnings and prohibitions that have for hundreds of years stood the test of time and man-made traditions.

Public school children should NOT be indoctrinated with any biased, religious viewpoint that unilaterally seeks to undermine and in effect supplant the authority of the parents simply because their children are captive audiences and usually unaware of the brainwashing and bias that prevents a balanced and fair treatment or debate of BOTH sides of the issue (i.e. creation/intelligent design-vs-evolution).

If secular humanism or atheism are exalted intentionally or otherwise through such unilateral, unfair, and unbalanced curricular laws in the states like CA, then who is really the INTOLERANT BIGOT here?

Obviously, it is NOT the 61% of CA voters in 2000 who had their rights trampled beneath the tyrannical tentacles of the 4 liberal CA justices masquerading as judges or justices earlier this year in falsely declaring same-sex marriage legal in CA. These are the INTOLERANT BIGOTS whose hatred and contempt for God and His word and the truth that up until recently determined what is and isn't good, healthy laws to enact and uphold in accordance with our constitutions.

Jesus' caveat in John 17 about how the WORLD (men opposed to God and His word or a biblical world view) HATED him and will HATE his followers, too, has indeed come to pass in CA in 2005 having Gov. Schwarzenegger sign into law a HATE crimes bill that just like Canada has the potential to silence preachers or any vocal opposition to same-sex marrige or homosexuality and even incarcerate and fine them under said HATE crimes law.

CA is a very liberal state that has for years allowed areas like San Francisco to constantly challenge the accepted practices in society related to MARRIAGE and the FAMILY. Why?

The TRUTH of the matter is, follow the money, honey! Corrupt and politically correct politicians accepting gifts, monies, or positions in exchange for promised legislative or legal intervention has been waxing worse and worse for years in America as evident by the proliferation of said HATE crimes laws and "sexual orientation" laws regarding sex ed in public schools and now same-sex marriage law in CA.

The bible warns us NOT to judge unjustly or condone/accept/promote evil as good or good as evil in various places such as Isaiah 5:20: Woe unto them that call evil good, and good evil; that put darkness for light, and light for darkness; that put bitter for sweet, and sweet for bitter!

Proverbs 17:13: Whoso rewardeth evil for good, evil shall not depart from his house.

Further, Proverbs provides a caveat to Judges/Justices NOT to judge or pass laws that are unjust or defend the wicked or wickedness in Proverbs 24:24-26 (KJV):
24 He that saith unto the wicked, Thou art righteous; him shall the people curse, nations shall abhor him:
25 But to them that rebuke him shall be delight, and a good blessing shall come upon them.
26 Every man shall kiss his lips that giveth a right answer.

Blessing and cursing are promised or prophesied for justices or judges who rule justly or unjustly.

Just because gay-agenda activists are well-financed and society is slipping further and further in America into a moral malaise away from their tried and traditional Judeo-Christian heritage does not make, certify, or legitimize sin that will always be sin to God and wrong or evil that will always be wrong or evil to a just and jealous God who demands our obeisance alone be His.

God created mankind, not the other way around. God is mentioned in ALL 50 state constitution preambles, directly or directly, as proof positive that our country was founded from its inception upon God's word, with him being the ultimate and deciding arbiter as He is the true author of life.

I challenge any of the 4 in this debate to show me CONSTITUTIONALLY LEGAL or BIBLICAL basis for same-sex marriage! Show me! Prove it! The onus rests with you as purported experts in law to substantiate your points of view, not just empirically, but BIBLICALLY and CONSTITUTIONALLY, as MARRIAGE and FAMILY LAW in America has up until recently invariably been rooted and grounded in both.

Any diversion from the truth and time-tested traditions for both MARRIAGE and FAMILY, God's institutions, w/o BIBLICAL and/or CONSTITUTIONAL grounds is frivolous, false, and misleading.

Again, show me any such reference in favor of same-sex marriage that is BIBLICALLY and CONSTITUTIONALLY guaranteed and accepted!

Until then, Proposition 8, intentionally reworded by the Sec. of State and Attorney General so as to favor same-sex marriage as a "right" not guaranteed by the constitution, but by 4 tyrannical justices legislating from the bench, remains Californians' slim and single hope of reversing this erroneous and egregious edict imposed by 4 unjust justices elevating evil above good and risking bringing more judgment upon CA and our country that the voters did NOT want or approve.

Edmund Burke also warned that the "only thing necessary for evil to triumph is for good men to do nothing."

Now is the time for men and women in CA to not only reverse this debacle of a decision in May in CA, but to insist that they be held accountable for their unjust actions and REMOVED from the bench and the Sec. of State and Attorney General of CA RECALLED in accordance with our rights to petition our government for redress of grievance when such complicit collusion against CA voters has obviously taken place!

We the People need to vote YES in CA on Proposition 8 and return Marriage as almost every state has been voting by state amendment to likewise do to its proper place as God intended; namely: the institution upon which our society rests, the family, rightly recognizing and restricting MARRIAGE to ONLY ONE MAN and ONE WOMAN.

[Troy Daniels]

I'm "just" a law student, so this may seem like stupid question especially if it is obvious to everyone else. If so, I apologize in advance, but would ask for some enlightenment. What is the official line/view of the Federalist Society regarding gay marriage? Is it the view espoused by Prof. Wax? Is there an official stand? In reading the online debate it's not clear, would it be fair to say that some Federalist are for it and others against it? Can you be a Federalist and still be for gay marriage? Our on-campus Federalist Society group cannot answer these questions.


Marriage is an infinite union of benefits between man and woman, this man and woman union has no limitation or boundary, and the depth of joy, satisfaction, and happiness that man and woman find within each other is an everlasting abyss of increasing fulfillment. This is what homosexuals envy, and seek to erode away and destroy, and perverting the identity of marriage is the first step in the process. Now, in contrast, SSM's are limited, and the depth of their irrational relationship is shallow and weak, which causes them seek satisfaction through multiple partners. So, to make themselves feel as if they have value, homosexuals have attacked and have eroded away the monogamous loving relationship of heterosexuals, by introducing perversions of morality, and this corruption of human morality has already brought us down to the level of dissatisfaction and unhappiness that gays experience on a daily basis. Heterosexuals do have the Liberty Right to pursue happiness in the monogamous moral relationships of the traditional marriage, just as gays have the right to pursue happiness in a sodomite union. Therefore, the DOMA should remain unchallenged, if the USA is to have any last-straw of morality and human decency; otherwise, the USA will suffer the same fate as Sodom and Gomorrah. Why, because, a woman has value when she can give value to the love of a man, a man has value when he can give value to the love of GOD, and this is the natural order of godly human life. Moreover, never in history has any gay man been admired by the LORD GOD, never has any gay man been acknowledged by LORD GOD, never has a gay man prophesied the words of GOD to the people; and never has a lesbian been acknowledged by GOD. So, unless GOD does reverse and abandon his contempt for homosexuals, and unless GOD does give value to the existence of gays and lesbians, the DOMA should remain in place. Everyone keeps saying, GOD bless the USA; however, these same people continually practice the very things that GOD finds offensive. So, why would GOD bless the USA when the USA does present GOD with everything that GOD finds offensive?

[David Garcia]

Same sex marriage should be legalized! who are we to judge people! besides what is so wrong of the same sex gettting married?? its not hurting anybody is it?? wow yeah its against the bible and everything right?? but HELLO EVERYONE IS NOT CHRISTIAN OR CATHOLIC!!! let them be!! they dont have to get married at a church they go just go down to some place and get married...and oh wow the children start to learn about that and experience gay people when their young....but seriously their are worst issues in the country right now then gay marriage! such as drugs and gangs and the war!!! how about you people concentrate on those issues rather than trying to ruin the joy of others who wanna get married! And people keep bringing up that if gay marriage is legalized then people should just start marrying their pets....Okay that is so retarded cuz were not animals dumbass! were human and i think people have common sense to marry other human beings and not animals! that is worst excuse i have ever heard or seen!

[Carvel Sims]

It was an interesting debate. The one issue that I do not feel was covered enought was the fact that recognition or denial of same-sex marriage while it is a legal decision is actually a moral judgment on people who only want to love and live like everyone else. Gay families are here now. They are raising children and even if they fare no better than single divorced or separated parents depriving them of recognition in law just seems inherently unfair and unamerican. Same-sex marriage have been around since before the birth of Jesus Christ and were only prohibited by the Roman Empire around 342 CE. The gay people who whant the right to marry will be the gay people who want stable, sexually monogamous relationships. It seems unfair to say that we will not sanction your right to have a legally enforcable monogamous relationship because we do not believe you are sexually monogamous. Like we will not let you marry because you might cheat on your spouse. What harm could it do to recognize the same-sex families that already exist. They are already here and doing what we don't want them to do. They are living together and raising children. Children that are not bith both of their biological parents for whatever reason. So we won't let you marry because we want to force the biological parents to go back together. Perhaps I am missing some of the logic here and need someone to explain it to me.

I also do not see any difference when interracial marriages were first objected to because then anyone could marry. I suppose that having to allow a gay teacher to teach in the schools is unnerving to some parents. But I do not know any school boy or girl who learns about sex from teachers. They learn from their peers, from television, and the movies. We can stick our heads in the sand and hope that our problems pass us by or we can educate our children how to deal with life's problems. We teach children about people touching them in improper places. We learned the hard way that perparing our children was better than ignoring sex and hoping that nothing ever happened to them.

It was an interesting discussion, but no clear cut opposition to same-sex marriages, just fears of possible unknowns. Like the dentist who did not want to treat patients with HIV because he said he was not set up medically to do so. Then he didn't need to be a dentist bebacuse he was treating people without taking the normal precautions that needed to be taken with everybody. You can not hide behind ignorance and hope these people go away. There day is here and now and we have to learn to deal with it.


The public debate sparked by the Iowa Supreme Court striking down a ban on same-sex marriage should have been expected, but has the potential to weaken the court, Chief Justice Mark Cady warned in the annual Condition of the Judiciary address today.

“In many ways,” Cady said in a much anticipated speech to a joint session of the House and Senate, “the public discourse following any court decision on such a major constitutional question of civil rights is what was expected, if not demanded, by our constitution. This discourse is not new for Iowa, although I doubt it has ever been so strong.”

That “discourse” led to the ouster of three justices by voters in the November election and is prompting calls for the impeachment of Cady and three other justices. Some lawmakers have threatened that if Cady and his colleague didn’t voluntarily resign today, impeachment proceedings would be initiated.

In light of those developments, the Condition of the Judiciary address attracted more attention than previous years when it was used by chief justices to make the case for more funding, more judges and reorganization of the court system.

Cady touched on those issues, but given developments since the 2009 Varnum v. Brien decision – which Cady authored, he was compelled “to defend our grand system of justice from misunderstandings that threaten to weaken its very fabric and strength.”

“I hope my remarks this morning will lead to a more accurate and complete understanding of the court’s proper constitutional role,” Cady added.

Cady then squarely responded to opponents of the same-sex marriage decision who argue it was contrary to the position of most Iowans.

Courts are legal, not political institutions, he said, and unlike politicians, judges do not make decisions “according to public opinion or consistent with ‘the will of the majority.’”

The will of the people will be expressed in law “as constrained by the written principles in the Constitution,” Cady said. If it were any other way, “why have a constitution?”

Likewise, he defended the Supreme Court’s review of the statute that banned same-sex marriage.

“Historical evidence and legal precedent support the authority of the courts to invalidate statutes that violate the constitution,” he said.

He also refuted the suggestion by critics that the court should have suspended its decision to give the Legislature time to act on a constitutional statute. As far back as 1883, the Iowa Supreme Court made clear that “even unpopular rulings could not simply be suspended in time to await any future legislative action,” Cady said.

If courts could be coerced by popular majorities to disregard the constitution, “constitutions would become mere ropes of sand and there would be an end of … of constitutional freedom,” Cady said, quoting from an earlier court decision.

That said, Cady conceded he doesn’t know how the debate will end, “but I do know that our Constitution will continue to show us the way,” he said.

Cady called for using the current debate to lead Iowans to a new understanding of the courts.

“Let us go forward with the courage found in our past and the courage of the convictions of our Constitution,” he said.

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