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April 03, 2009

Comments

clarice

This wonderful way with words is what separates the lawyers from the others,TM.

matt

so much for the foundations of the Constitution.

Sue

The tide is turning anyway. Another generation and it will have turned completely. Why not allow our constitution to do its job?

ben

I don't think this a question of tides, it's a question of what is the legitimate role of the courts. The "tide" argument is that gay marriage is now much more accepted and so why bother defeating it. So if popularity is the key, then why shouldn't the majority that does not approve of it be shut out? It will surely become a ballot issue and that will help Republicans. Whether in another generation gay marriage will or not be the law of the land is not relevant. A lot of issues we deal with today won't be around in a generation, not a reason to ignore them now.

Sven

a person can't change their race

Is that really true for for every person?

Dude08

"I just wish that we could have a bit more respect for the democratic process and settle this in legislatures rather than employing this Democratic process of legislating through the courts."

I would imagine that Oliver Brown heard much of the same back in the day. How sad.

David


I was born in the '50's so I'm probably more prejudice toward gays than I should be.

I still recognize this to be a CIVIL RIGHTS issue, plain and simple.

Dude08

"I just wish that we could have a bit more respect for the democratic process and settle this in legislatures rather than employing this Democratic process of legislating through the courts."

Hey - TM - I have been hunting through your archives and damm if I can't find a similar complaint about Heller. At least in Iowa they can un-elect their judges.

Hyporicsy, pure and simple.

clarice

Dude, you do know that almost from the inception of slavery in this country, the majority opposed it in one way or the other.Taranto best of the Web had a wonderful precis of this this week. From trying to limit the voting power of slave holding states to voting against it in their individual states to sacrificing their lives to end it.

But I take it you went to public school.

clarice

Here--Dude Just for you, some free education:
"A little historical perspective is useful to underscore further "how far nation has to go to bridge its centuries-old racial divide":

In 1776, when America declared independence from England, blacks were enslaved--literally the property of other people--in all 13 colonies.

By the time the Constitution was ratified in 1789, slavery had been abolished in New England and Pennsylvania, but it was still practiced in New Jersey, New York and the six Southern states. The Constitution stipulated that slaves counted as only three-fifths of a person, a provision that today is widely misinterpreted as a racial insult. In fact, it was a compromise between politicians from free states, who didn't want to count slaves at all, and those from slave states, who wanted to boost their own political power by counting slaves as if they were full citizens (but of course not giving them a vote).

By 1861, when the Civil War began, slavery had been abolished north of the Mason-Dixon line (the Pennsylvania-Maryland border) but was still firmly entrenched in the South and was not abolished nationwide until 1865, when the states ratified the 13th Amendment. Subsequently the 14th and 15th amendments purported to guarantee, respectively, equal protection under the law and the right to vote, but these remained empty promises for nearly a century. Many freed slaves in the postbellum South became sharecroppers--a step up from slavery, but far from an independent living.

Harsh discrimination, known as Jim Crow, was the law of the land throughout the South, upheld by the Supreme Court in 1896. Blacks were kept from voting by unequally administered literacy tests and other means. Lynching was common well into the 20th century. Black soldiers in World War II fought in segregated units; schools were segregated by law until 1954; and Congress did not take drastic action to dismantle Jim Crow until 1964, when it passed the Civil Rights Act, followed by the Voting Rights Act of 1965.

How far does America still have to go to bridge its centuries-old racial divide? Liz Sidoti answers the question:

Even in 2009, a black man cannot become president of the United States without some knuckleheads sending stupid emails about him.

To be sure, America has made some racial progress. But the dream of equality will not be truly and fully realized until President Obama's political detractors treat him with the same respect George W. Bush's detractors showed him."

http://online.wsj.com/article/SB123851857013474277.html

ben

"I still recognize this to be a CIVIL RIGHTS issue, plain and simple."

Are laws against incest a civil rights issue, you can't marry your brother or your mother? Or you can't marry a 12 year old? Or you can't marry two people at once? Or your horse? The idea that any established social mores are inherently discriminatory is flawed. In the Muslim world you can have 4 wives, are Muslims being discriminated against in the U.S. because they can only have one wife?

Americaneocon

Tom: I wrote on this today, at my post, "Iowa Gay Marriage Ruling Makes End-Run Around State's Voters."

Dude08

"Dude, you do know that almost from the inception of slavery in this country, the majority opposed it in one way or the other.Taranto best of the Web had a wonderful precis of this this week. From trying to limit the voting power of slave holding states to voting against it in their individual states to sacrificing their lives to end it.

But I take it you went to public school."

And you do know that for millenia the price of the leaves, leaf buds, and internodes of the Camellia sinensis plant in Zhongua fluctuated greatly.

narciso

It's not about prejudice, it's about the importance of heterosexual marriage in society. As a method of propagation of the species, to be rather blunt about it. That's
why it has a privileged place in society. It's partially about other issues, but that's the main point, and once you leave that out, all those other considerations that Scalia brought up in his dissent in
Romer, are born out.

Porchlight

In the Muslim world you can have 4 wives, are Muslims being discriminated against in the U.S. because they can only have one wife?

A question soon to be asked in a court near you, by so-called "civil rights" advocates for the minority group in question. Just a matter of time.

Cecil Turner

Is that really true for for every person?

Heh. I was thinkin' along similar lines, but with a different example. As this video clearly demonstrates, you can not only change your race, but your species.

Hey - TM - I have been hunting through your archives and damm if I can't find a similar complaint about Heller.

Huh? Are you seriously suggesting there's not a right to "bear arms" in the Constitution? Or that is in any way comparable to justices finding a right to gay marriage in there?

clarice

Because Europe has largely accepted Muslim polygamy and has such generous social welfare benefits, it is actually financing its own demographic demise. Isn't it?

Elliott

The Moor the merrier.

Cecil Turner

. . . are Muslims being discriminated against in the U.S. because they can only have one wife?

Sure! But not Mormons, because their discrimination hasn't been "invidious" enough. (Whew! Almost got snared by a hobgoblin, there.)

Jane

The tide is going one way on this and I have no problem with the result; I just wish that we could have a bit more respect for the democratic process and settle this in legislatures rather than employing this Democratic process of legislating through the courts.

And the methodology will be unhelpful for gays forever. The problem with Roe is that a right of privacy was ordained by a Court and as such will always lack legitimacy and will always be under attack. It's the same problem with gay marriage. It's a dumb way to go about things if you ask me.

Sue

Jane,

That is my argument. You just said it so much better.

Jack Smith

If you look to how much the Supreme Court of Iowa relies on federal cases, scholarship discussing federal law, and federal principles of constitutionalism, it should be quite obvious that the decision may be properly appealed to SCOTUS. State Tax Commision v. Van Cott, at 306 US 511, makes that clear. http://altlaw.org/v1/cases/380906

Fresh Air

This another one of these areas where the sausage gets made in the open and everyone squeals. Rather than allowing judicial usurpations of the law, the DMO should be amended to prevent judicial review. And if that doesn't work, a constitutional amendment will do nicely. I will take either one. But these clowns in robes need to step down or be pushed.

Fresh Air

I can't remember why the Defense of Marriage Act sits in my memory as "DMO," But anyway, that's what I'm referring to.

Mom

Hmm, perhaps we should stop acknowledging "marriage" as a special-case contract. Treat individuals as individuals without consideration of whether they are married or not. No "joint" tax returns. Property transfers, medical decisions, social handouts, etc..., to be based entirely on 1)specific contracts between genetically unrelated people or, for those who don't bother to get contracts, 2)defined, provable, genetic relationships.

In other words, put heterosexual couples in the same legal position that singles and homosexual couples are in now!

Jim Rhoads a/k/a vjnjagvet

I haven't read the ISC's opinion, but from the coverage I get the impression that it makes great use of the Iowa Constitution to invalidate a state legislative act. SCOCAL did the same thing with its legislature's attempt to define marriage.

If Jack Smith is right that the Iowa Court used SCOTUS precedents to shore up its decision, it doesn't mean that the best way to overturn this case is an appeal to SCOTUS.

Amendment of the Iowa Constitution would be easier than that if the polling data indicates it is a possibility.

boris

People are born with a built in definition of marriage the same way they are born knowing how to acquire language. There is a hardwired template for language that makes learning it instinctive. There is a hardwired template for marriage also (which takes effect during pair bonding).

ISTM one of the problems is that the traditional definition, 1 man 1 woman, is interpreted as excluding gay couples when it actually just doesn't include them. To have an instinctive incentive to "get hitched" there needs to be a hard wired template for what that means, which would come only from historically reproductive forms.

So if true, how important is it that what our culture calls "marriage" fit that template? Apparently these judges are not concerned with a question that may be completey foreign to their way of thinking and judging. To them renaming civil union as "marriage" solves the problem.

From then on however the traditional definition of marriage, compatible with the built in template, has been eliminated. So while the word "marriage" is still in use, it is just a different way of saying "civil union", which has already been demonstrated in California and Connecticut to lack the value and status of traditionally defined marriage when offered side by side.

By attributing that value difference to "discrimination" rather than instinctive preference, judges remedy an injustice that does not exist.

Thus the newly renamed institution will not be what pair bonding couples seek. Disatisfaction with that lack will be attributed to prejudice and in the name of justice people who are "born that way" will be stigmitized. The institution called marriage will be less sought by the people once served by tradition not because thay don't want to be in the same institution with gays, but because the institution they instinctively seek no longer exists.

Jim Rhoads a/k/a vjnjagvet

Has anyone scientifically confirmed that any another vertebrate species carries on a monogamous homosexual relationship? If so, what since the apparent purpose cannot be procreation, what is it?

narciso

I hadn't even considered theepistimological and semiotic aspects of this very Gramscian
move, but it makes a disturbing degree of sense. Yet another version of undermining
traditional institutions and replacing them
with a brand new secular progressivevariant.
The evolving constitution that began with Engel v. Vitale, and segued through the emanations of Griswold, to the penumbras of Roe, all contributed to the delinking of marriage from its actual function.

cathyf
Has anyone scientifically confirmed that any another vertebrate species carries on a monogamous homosexual relationship? If so, what since the apparent purpose cannot be procreation, what is it?
Well, humans are unique in the animal kingdom in the length of time that our offspring are dependent. This creates a tension between survival characteristics. The ideal pattern for passing along genes is a 50-60-year long happy monogamous marriage which raises a dozen children and then assists in the raising of grandchildren and great-grandchildren. But the probability of one or both parents dying before all of the children are raised used to be reasonably high. If that happens, there is a survival characteristic to being able to recover from the loss and remarry, and for the step-parent to successfully integrate into the family and to continue to produce offspring.

In that case adaptibility, and bisexuality, has survival value. Wife dies in childbirth leaving husband and 5 children under the age of 8. In a small isolated community with no suitable woman for the widower to marry. A homosexual relationship might just provide for the survival of the children (and the continuation of the widower's genes) where they would have otherwise died.

Other species have completely different survival calculus. In lions, for example, when a new dominant male defeats his predecessor, he will kill the infant offspring and drive off the adolescents. For the female, this arrangement is, on balance, advantageous -- the offspring killed off are made up for by the new offspring that she gets from the new male. For humans, offspring are more valuable, and harder to replace, than in any other species.

Jim Rhoads a/k/a vjnjagvet

A very interesting analysis cf.

What percentage human homosexual relationships do you estimate are founded on the situation you describe? I suspect not a large one.

BTW, I am asking these questions to explore the validity of the factual premises articulated by the proponents of SS "Marriage".

Tradition and law in the civilized world --some of which is biblically based, some not -- have long recognized the sanctity of only heterosexual marriage as the natural order of things. Even polygamous relationships recognized by some nations or civilizations are typically neither bisexual nor homosexual.

I am wondering why these observations do not identify a good factual predicate for an argument against SS marriage. IOW because civilization has recognized "marriage" for centuries as a peculiarly human relationship solely between men and women, why should it be redefined?

OTH, these observed facts do not seem to be a good predicate for an argument against legally recognized SS relationships (e.g., Father - Son, Mother - Daughter, Brother - Brother, Sister - Sister, Friend - Friend, and Lover-Lover).

Further, I am not sure there is a logical distinction to be made between the above same-sex relationships and relationships between women who can no longer bear children and their male friends or lovers.

Especially with today's mores, I am not sure that there is a legitimate state purpose for a man and woman my age (69) to be able to force the state to recognize their relationship as a "marriage"?

Rather, it seems to me if my friend and I want to have the "sanctity" of our relationship recognized, we should call on an institution (church, synagogue, sect, coven, etc.) that performs the "sanctification" function.

Otherwise for my friend and me, and those in some sort of same-sex relationship, the legal relationship should be purely contractual so far as the government (be it state or federal) is concerned.

I must be missing something but I am not sure what it is.

cathyf
What percentage human homosexual relationships do you estimate are founded on the situation you describe? I suspect not a large one.
Now? None. The question was about natural selection and whether homosexuality could have been selected for because it provides some evolutionary advantage. The argument was that since no other vertebrates show the behavior it must not have an evolutionary advantage to humans. I merely pointed out that humans are quite unique in the animal kingdom in the length of time the parent/child relationship lasts. There are other species which pair bond -- some of them pair bond more permanently than humans, too. From a species survival standpoint, they can afford to pair bond permanently -- they have short life spans and short obligations to offspring, and if their mate dies they can just stop being parents.

I do genealogy, and it's clear that life was pretty harsh up to a hundred years or so ago. Dead spouses had to be replaced pretty quickly.

skylights

Gay marriage is a "social experiment"? I call it "equal rights."

PD

I must be missing something but I am not sure what it is.

What you're missing is that no matter what argument is made in favor of heterosexual marriage/against homosexual marriage, the homosexual lobby will not accept it.

It's not "in their nature" to do so.

Jim Rhoads a/k/a vjnjagvet

Yeah, PD. It reminded me of the part of this parable I have italicized:

Luke 18:1-8 (American Standard Version)

1 And he spake a parable unto them to the end that they ought always to pray, and not to faint;

2 saying, There was in a city a judge, who feared not God, and regarded not man:

3 and there was a widow in that city; and she came oft unto him, saying, Avenge me of mine adversary.

4 And he would not for a while: but afterward he said within himself, Though I fear not God, nor regard man;

5 yet because this widow troubleth me, I will avenge her, lest she wear me out by her continual coming.

6 And the Lord said, Hear what the unrighteous judge saith.

7 And shall not God avenge his elect, that cry to him day and night, and yet he is longsuffering over them?

8 I say unto you, that he will avenge them speedily. Nevertheless, when the Son of man cometh, shall he find faith on the earth?

It seems to me as though the unitalicized part could indicate that while persistence may be rewarded on earth, it may not ultimately have that effect.

boris

It seems very plausible that natural selection has favored two traits; a strong interest in sex and attraction to fertile members of the opposite sex. Among those living a thousand years ago anyone lacking either trait was unlikely to become one of our ancestors. The prevalence of those traits in us is most easily explained by the near universal presence in our ancestors.

That would not rule in or rule out any other trait or random factor. If science and culture change the rules so that reproduction is less based on attraction and orientation and more based on wanting children, then the prevalence of those two traits could diminish over time (thousands of years). Natural selection could in the future favor two other traits; wanting children and wanting to form arbitrary partnerships for raising them.

Nevertheless we are stuck with the ancestors of our past. Even if we all were to agree that such a future will be “better”, that is not a good reason to pretend it’s the way things should be right now and anyone who disagrees is just a nasty old Neanderthal.

jorod

There is the rest of the world...Then there is Iowa...

Captain Hate

Gay marriage is a "social experiment"? I call it "equal rights."

Their rights are the same as mine.

Btw, I may have a lot of relatives by marriage there, of whom I'm fairly fond, but I'm ready to tell Iowa to permanently stfu and go to the back of the line on their presidential primaries.

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