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April 07, 2009

Comments

Danube of Thought

"I don't see anything there that makes it apply in a different way to marriage."

I don't either, and I expect that a federal court will so hold before very long.

In California, the voters passed a gay marriage ban by referendum, and the State Supreme Court struck it down as being in violation of the equal protection clause of the state's constitution, which for practical purposes is identical to the federal one. So the voters amended the constitution by another referendum.

Charlie (Colorado)

Of course they should, if they are male and can successfully complete the physical tests. How would their ability to run a four-minute mile disqualify them?

Wasn't my argument, it's just a consquence of yours. Look, you proposed it was the physical capability that was at issue: I proposed a woman who had that capability. You argue that she still shouldn't be allowed to be infantry, because there are so few women who have the same physical capabilties. So I pointed out that there are very few men who can run a four minute mile; you say they should be allowed to be infantry if they're male.

I can't draw a Venn diagram on this thing, but it would apper it's not the basic physical capability to cope with the infantry's rigors, or else my Hippolyta-in-training would qualify. Nor is it that her physical capabilities were uncommon that disqualified her, or the uncommon capabilities of the sprinter would disqualify him. The one thing you point to is that she's a woman and he's not.

So it appears that it comes down to the idea that women aren't qualified to be infantry, because they're women.

Hard to argue with, but essentially unsatisfying.

Pofarmer

why doesn't it unambiguously requires states to permit same-sex marriage?

Because two guys screwing each other isn't a marriage.

Danube of Thought

"For that matter, the whole notion of having a secular marriage at all isn't real old: the Marriage Act that defined it in England did so in the mid-18th century."

The absence of a statute defining the meaning of the instution did not mean that the institution didn't exist until the statute was enacted.

Charlie (Colorado)

That's correct, and I don't see the need to put the derisive quotes around the phrase. I imagine there is a great deal that would surprise the Mosuo.

Yeah, they -- matrilinial, no marriage at all, a society that's thousands of years old -- would be very surprised to find that they don't have family units.

Great grandparents, grandparent, parents, and kids, living in the family -- um, the not-a-family -- compound would all be surprised.

We'll have to let the dictionary writers know that they're translating 家庭 wrong.


Charlie (Colorado)

Because two guys screwing each other isn't a marriage.

The screwing I got from my ex wasn't either.

But, how do you know?

Charlie (Colorado)

The absence of a statute defining the meaning of the instution did not mean that the institution didn't exist until the statute was enacted.

Ah, so it follows that the absence of a statute defining gay marriage doesn't mean gay marriage doesn't exist either.

It's a silly argument, of course: the absence of statute defining marriage certainly means that secular statutory marriage didn't exist before then.

Now, you could plausibly argue that the establishment of statutory marriage for het couples diminished "real" marriage -- but if so, that's been taken care of for 300 years or so. Abd it stil doesn't explain how people whose religious tradition don't include religious marriage have managed all this time.

Danube of Thought

"I don't see anything there that makes it apply in a different way to marriage."

What his made it apply differently to gay marriage thus far is that judges do see something that makes it apply differently. They think that the drafters of the equal protection clause had no thought of gay marriage in mind when they wrote. Other judges disagree, believing that their intent was more universal, regardless of the particulars they had in mind. That thinking, taken to its extreme, gives you Roe v. Wade.

Pofarmer

But, how do you know?

Well, mainly because about 40 of the 50 states apparently agree with me.

LUN.

Danube of Thought

"You say they should be allowed to be infantry if they're male." I said they should be allowed if they're male and can meet the physical requirements. Being able to run a 4-minute mile would not seem to disqualify them under either condition. The fact that those who cannot run such a mile is in no way a consequence of any argument I have made.

"Nor is it that her physical capabilities were uncommon that disqualified her, or the uncommon capabilities of the sprinter would disqualify him."

Untrue. She is not disqualified because of her physical capabilities; she is disqualified because the presence of such capabilities in women is so rare as to make it not worth the costs of attempting to integrate a few women into the infantry.

"The one thing you point to is that she's a woman and he's not."

Untrue again. I point to the fact that there are very few women who can meet the standards, but many men who can.

Danube of Thought

*run such a mile should be disqualified*

Charlie (Colorado)

What his made it apply differently to gay marriage thus far is that judges do see something that makes it apply differently.

Same was true of the Lovings' case until the Supreme Court decided diferently. Were the previous judges wrong? Were they only wrong after the SC decided? If so, doesn't that mean that the cases were rightly decided and the SC shouldn't have taken the case, so that by making the right decision they were also wrong to have decided it?

Danube of Thought

"Ah, so it follows that the absence of a statute defining gay marriage doesn't mean gay marriage doesn't exist either."

That's correct. It does mean, however, that a number or rights conferred on heterosexual couples by the state have not been conferred on gay couples.


Surely you are familiar with the institution of marriage at common law?

Charlie (Colorado)

Well, mainly because about 40 of the 50 states apparently agree with me.

About 30 of 50 states agree that first counsins can't marry. If someone marries a first cousin in one of the other states, are they really married?

Danube of Thought

"Great grandparents, grandparent, parents, and kids, living in the family -- um, the not-a-family -- compound would all be surprised."

What on earth would they be surprised about.

Danube of Thought

"About 30 of 50 states agree that first counsins can't marry. If someone marries a first cousin in one of the other states, are they really married?"

They are married in the states in which the marriage took place. I do not know whether or not the other states are required to recognize such marriages.

Charlie (Colorado)

Untrue. She is not disqualified because of her physical capabilities; she is disqualified because the presence of such capabilities in women is so rare as to make it not worth the costs of attempting to integrate a few women into the infantry.

Aha. So it's NOT women's physical capabilities that are at issue, because individual women do have those capabilities. Good, we've agreed.

Its that women having those capabilities are rare, and so it makes it too hard to integrate them into the infantry.

But, as you've noted, women can be combat pilots, front-line clerk typists, intelligence specialiss, front-line cooks, combat hospital nurses, truck drivers, combat photographers, and so on. Apparently, it's not too difficult to integrate them into those specialties. Even ones where they are serving in the same localities as the infantry etc.

I'm not finding this very convincing.

Charlie (Colorado)

What on earth would they be surprised about.

That they're incapable of forming a family unit in the absence of traditional marriage.

Hey, wasn't my argument. It's just a consequence of yours.

Pofarmer

It has been theorized that the matriarchal system of the lower classes may have been enforced by the higher classes as a way of preventing threats to their own power.[citation needed] Since leadership was hereditary, and determined through the male family line, it virtually eliminated potential threats to leadership by having the peasant class trace their lineage through the female line. Therefore, attempts to depict the Mosuo culture as some sort of idealized “matriarchal” culture in which women have all the rights, and where everyone has much more freedom, are based on faulty evidence; the truth is that for much of their history, the Mosuo peasant class were subjugated and sometimes treated as little better than slaves.[citation needed]

Yeah, it's from wiki, but......

Danube of Thought

"Same was true of the Lovings' case until the Supreme Court decided diferently. Were the previous judges wrong?"

That's what the Court in Lovings said.

"Were they only wrong after the SC decided?"

Yes.

"If so, doesn't that mean that the cases were rightly decided and the SC shouldn't have taken the case, so that by making the right decision they were also wrong to have decided it?"

No. They took the case for the purpose of ruling that the courts below were wrong. Happens all the time. And in about twenty instances they have ruled that they themselves were previously wrong (see, e.g., Plessy v. Ferguson and Brown v. Board of Education).

Charlie (Colorado)

That's correct. It does mean, however, that a number or rights conferred on heterosexual couples by the state have not been conferred on gay couples.

So hen the privileges conferred on het couples by the state are in fact part of the statutory definition of marriage, which we've determined isn't established by some Natural Order, but by laws made by men.

Pofarmer

Mo law

Common Law Marriage: No. However, Missouri law does recognize the validity of common-law marriages entered into in Missouri before 1921, as well as common-law marriages contracted in other states which permit them.

Cousin Marriages: No.

Proxy Marriages: Yes.

Same Sex Marriages: No.

Danube of Thought

"...the privileges conferred on het couples by the state are in fact part of the statutory definition of marriage..."

No. They're simply a statement of what privileges accrue to married couples.

Danube of Thought

"...which we've determined isn't established by some Natural Order, but by laws made by men."

Not necessarily. In many cases those laws were made by men who believed they were codifying a Natural Order of some kind. Not sure I agree with them, but that's pretty much how the thing has evolved.

Pofarmer

In this case they seem to have just pretty much codified what was already going on.

Charlie (Colorado)

No. They took the case for the purpose of ruling that the courts below were wrong. Happens all the time. And in about twenty instances they have ruled that they themselves were previously wrong (see, e.g., Plessy v. Ferguson and Brown v. Board of Education).

Okay, so we've established that the unambiguous meaning of the Constitution still isn't the basis on which these decisions get made, that the various courts can be right in deciding against something, and only become wrong when the Supreme Court makes a different ruling; that even though the lower courts were right in their decisions, the Supreme Court could reverse them because they were actually wrong, but that htey weren't wrong yet, only they would be wrong when the Supreme Court decided they were.

That would seem to suggest, then, that the lower courts that decided Roe v Wade were wrong to decide in favor of Roe, right to not grant an injunction, but then when the SC decided, then they became right to have found for Roe, wrong not to have granted the injunction.

And thus, now it's right that abortion is very broadly legal.

You know, I'm not sure this is a very "conservative" meaning of the word "right".

Charlie (Colorado)

In this case they seem to have just pretty much codified what was already going on.

Which means that the Founders were wrong to eliminate an Established Church, right? That's what was already going on, after all.

Charlie (Colorado)

Po, I wish you'd actually include a link on these things.

Charlie (Colorado)

No. They're simply a statement of what privileges accrue to married couples.

Which came from what?

Pofarmer

Po, I wish you'd actually include a link on these things.

Yeah, I LUN'd most of em. I need to learn some HTML, but, for some reason, I'm resisting the urge. I suppose it's the anti-nerd in me, or something.

Pofarmer

Which means that the Founders were wrong to eliminate an Established Church, right? That's what was already going on, after all.

The founders didn't want the Church of England Scenario. A good number of them had fled that.

Charlie (Colorado)

Ah. The hint helps. It's really not hard, honest.

Anyway, I haven't dug around much, but while that says Missouri doesn't do cousin marriage, it doesn't say they aren't recognised. The one thing I could find that says anything about "full faith and credit" with respect to cousin marriage says: "the United States Constitution has been interpreted as requiring these states to give "full faith and credit" to such marriages performed in other states." It's just some forum though, I don't know how much to make of it.

Charlie (Colorado)

The founders didn't want the Church of England Scenario. A good number of them had fled that.

Yup. So it's apparently okay to not do what was already being done, if you didn't like it.

Pofarmer

Yup. So it's apparently okay to not do what was already being done, if you didn't like it.

"The govt shall establish no religion" is somewhat different than "There shall be no religion."

You might take notice that the Founders did a good number of things differently than they were being done.

Danube of Thought

"Okay, so we've established that the unambiguous meaning of the Constitution still isn't the basis on which these decisions get made..."

No we haven't. Sometimes it is; other times it's not (to me) unambiguous. And judges disagree all the time as to what is and is not ambiguous. The constitution is not a cookbook, and there are a wide variety of conflicting theories concerning how to interpret it. My own view is that a statute should not be struck down unless it contravenes an unambiguous provision of the constitution. The Roe court, among many others, took a different view.

"...that the various courts can be right in deciding against something, and only become wrong when the Supreme Court makes a different ruling; that even though the lower courts were right in their decisions, the Supreme Court could reverse them because they were actually wrong, but that htey weren't wrong yet, only they would be wrong when the Supreme Court decided they were."

You seem to be intentionally making this difficult for yourself. Instead of using the term "right" or "wrong" it might be useful for you just to focus on what the law is. When a lower court interprets a statute or the constitution in a particular way, that interpretation becomes the law. When a higher court reverses or modifies it, the law changes. It that's the sense in which you are using the terms right and wrong, then what you said is correct.

Danube of Thought

"Which came from what?

In some cases from the legislature, in some cases from the common law.

Charlie (Colorado)

You might take notice that the Founders did a good number of things differently than they were being done.

I'm not the one arguing that the ways it's always been done is therefore the right way to do it.

Danube of Thought

"Which means that the Founders were wrong to eliminate an Established Church, right?"

Not really. All the Founders wanted was a prohibition against the federal government interfering with the individual states' established religions, and many states had provisions well into the 19th century that made membership in a particular church a prerequisite for owning property, for example.

The establishment clause was not held to apply to the states until some time after the enactment of the fourteenth amendment, when the Supremes decided that the clause prohibited the states themselves from having an established religion. I've always had a hard time buying the idea of the whole "incorporation" doctrine, but depite my own misgivings it is very much the settled law of the land.

Charlie, I bet you have a hard time understanding why there are so many Supreme Court cases that are decided 5-4, 0r 6-3. The reason is that there have been arguments raging for over 200 years about how to interpret the constitution. If it were universally agreed upon we wouldn't need an appellate court system, at least for constitutional matters.

Danube of Thought

Note that the language of the First Amendment begins with "Congress shall make no law..." The Court has said that the 14th amendment means that the states shall make no such law, either--but I don't think I'd have ruled that way if I had been on the Court at the time.

I'm going back to my Harry Bosch novel.

Pofarmer

I'm not the one arguing that the ways it's always been done is therefore the right way to do it.

No, what you're arguing is pretty much that anything BUT the way it's currently being done is O.K., which, seems to be your argument most of the time.

Now, if the vast majority of the folks were on your side on this, you might have point, but they ain't, not even close. MO's marriage ammendment vote was like 80/20. Even Liberal Oregon was in the 70/30 neighborhood against Gay Marriage. Most people, a whole bunch, the vast majority in fact, beleive that marriage should be between an man and a woman. That's why MO took it out of the hands of the legislators and put it into a Constitutional ammendment, as have several other states. What I'm argueing is that Gays can't get married. Marriage is for the establishment of the family and society, between a man and a woman. And, that there is no benefit for Society to gay marriage, and, in fact, many disencentives to allow it.

Danube of Thought

"I'm not the one arguing that the ways it's always been done is therefore the right way to do it."

I'm not either; I'm just saying what the law is, and why. Often laws are based upon the way things have always been done, and whether that's right or wrong, the law is the law. Courts are not empowered to change laws because they are "wrong," but legislatures are. If abortion were illegal in California, I would vote to legalize it. The Supreme Court had not business doing so, but only two justices agreed with my view.

And now it really is off to Harry...

Danube of Thought

"So it's apparently okay to not do what was already being done, if you didn't like it."

As long as you're within the law it's okay by me. If you're not within the law, it's not okay whether you like it or not.

Charlie (Colorado)

You seem to be intentionally making this difficult for yourself. Instead of using the term "right" or "wrong" it might be useful for you just to focus on what the law is.

Oh no, I'm intentionally making it difficult for you. You keep saying these things -- like that family units can't be established without traditional marriage -- that, when questioned, seem to run into problems.

My own opinion is pretty much what you claim to be yours -- that the 14th Amendment is plain, that it is self-evident that we are endowed with certain inalienable rights of life, liberty, property and the pursuit of happiness, that everyone ought to be equal before the law. The differences is that you're presenting a bunch of "excepts". These lead to contradictions.

People all have the same rights to life, liberty etc -- except for homosexuals who want the same legal protections for their relationships that straight people get.

men and women have equal standing under the law according to thye 14th amendment -- except for women who want to be in the infantry, because they're too hard to integrate into the infantry, although they're not apparently too hard to integrate into the air arms, or the motor pool, or the radio shack.

Homosexual marriages shouldn't exist because they challenge traditional of marriage, but interracial ones are okay because, well, that challenge to traditions was Good, while challenging the traditions about homosexual marriage is Not Good.

That's the point of the whole Socratic exercise here: my warped mind is such that I see these things as logic problems. The logic seems to lead pretty unequivocally from the 14th Amendment to the necessity of establishing homosexual something-that-looks-like-marriage as long as we accept as a basis what the text appears to plainly and "unambiguously" say. The wisdom of the rejection of "separate but equal" -- which isn't necessarily a logical issue, but rather a recognition that "separate but equal" is often separate but rarely equal -- seems to argue that if that's called "marriage" for het couples, it ought to be called "marriage" for everyone. I recognize that people may have religious objections to this, so the obvious answer is to have only civil unions, and make "marriage" a matter of religion and personal choice.

I don't find the appeal to tradition per se very compelling — the people I most admire in western political philosophy, Adam Smith and Thomas Jefferson, and James Madison, and Voltaire, didn't let tradition interfere with what they reasoned out to be the right thing to do. Clarice is right that it probably never occurred to them that it'd be applied to gay marriage — but then it probably never occurred to hem that the Constitution would be applied to people reading text that has never been printed on paper and that flies through the air across my living room, either. They would have recognized the reasoning that leads to my conclusion that it's still covered under the First Amendment, though.

Charlie (Colorado)

As long as you're within the law it's okay by me. If you're not within the law, it's not okay whether you like it or not.

So when the American Revolution occurred, lading to the Founders committing High Treason and massively violating the law at the time, that wasn't okay?

Charlie (Colorado)

Now, if the vast majority of the folks were on your side on this, you might have point, but they ain't, not even close.

So what;s right is determined by how big a gang you can put together?

Charlie (Colorado)

>i>I'm not either; I'm just saying what the law is, and why../i>

Well, and I wasn't saying that to you, either; I was responding to Po.

In any case, though, I'm not a lawyer, I'm a philosopher, or of a philosophical bent. We know this isn't the way the law currently is; I'm concerned with what's right.

Louie723

I'm concerned with what's right.

Aha. Apparently what it comes down to is conflicting versions of right & wrong. One based on tradition and/or the Bible vs. what, Buddhism? Modern sensibilities?

Jane

And, that there is no benefit for Society to gay marriage, and, in fact, many disencentives to allow it.

It might be better to let this die a slow death, but I so disagree. The "benefit" of any marriage is providing a stable place for kids to grow up - and that can occur (and not occur)in both gay and straight marriages.

Maybee benefits should only be awarded to those who do a good job. How's that for incentive. (We can let ACORN decide - running)

syn

"To a certain degree changing the meaning of marriage is sorta like changing the value of pi."


Indeed! Speaking of schizo, take a gander at this pretzel-twisted definition. To all the Lawyers I must ask, how will reasonable laws be derived from this senselessness? No doubt Darwinian apes wearing black robes will evolve some freaky way, however what do reasonable Lawyers say?


Marriage-noun
Etymology:
Middle English mariage, from Anglo-French, from marier to marry
Date:
14th century

1 a (1): the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law

(2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage

syn

Pardon me the definition is from Merriam Webster....the 'worshipping' one.

syn

"It sure is complicated when you are gay."

If you think that is complicated try being a homosexual in a gay world.

Jane

Maybee benefits

Oops Maybee, I didn't mean to drag you into this.

boris

The the notion of marriage you're defending, though, is much more restrictive

No, I claim the meaning of the institution most people wanted the state to provide didn't include polygamy or same sex forms.

Now some want to change that meaning even though there exists a less resisted option.

I also suggest the word describes a real thing, like "nose" or "liberty". It can be expanded or varied but the long term meaning is tethered to its natural function.

sbw

[OT]Cards for Obama to send.[/OT]

PeterUK

"What benefits accrue to society by recognizing marriages among heterosexuals?"

It is for the children.

Pofarmer

The "benefit" of any marriage is providing a stable place for kids to grow up - and that can occur (and not occur)in both gay and straight marriages.

Sure it can, but that ain't the point of Gay marriage. The point of Gay marriage is to get the "benies" that straight married couples get.

Pofarmer

So what;s right is determined by how big a gang you can put together?

Yeah, not neccessarily, but changing existing mores and customs and laws to appease an exceedingly small percentage of the populations seems pretty shortsighted.

Appalled

Charlie:

Interesting colloquy you and DoT had last night. Problem is, I find myself on Danube's side here. Major social change -- and let's be honest, gay marriage is a significant social change -- is not something that really should be imposed by the courts. Unlike with Brown v. Board of Education, and the multitude of civil rights cases (including, by the way, Loving), there is no argument that the original intent of the framers of the 13th, 14th and 15th amendments had anything to do with the marriage of homosexuals.

When the Supreme Court has used the 14th amendment for things the framers did not intend, the result, often, has not been good for the nation. You should spend some time with the "freedom to contract" cases of the early 20th century, when the Reconstruction amndments were used to advance union busting and invalidate much of the New Deal.

Also, from a political standpoint, social changes imposed by the courts gives the elected state reps and national congress critters far too much space to be irresponsible on social issues. It's easy to be against abortion, when there is no way your ideas might actually be enacted as law and have, you know, consequences. When a matter is "settled" through legislative action, rather than imposed by judicial fiat, it is a heck of a lot eaier for a socity to accept.

Jane

Sure it can, but that ain't the point of Gay marriage.

Actually Po, you are wrong, at least as it pertains to the resident lesbian. The sole reason for getting married was to have a family. Like all sorts of hets, she wanted to grow up, get married and have kids. The so-called "benefits" had nothing to do with it.

Rick Ballard

"When the Supreme Court has used the 14th amendment for things the framers did not intend, the result, often, has not been good for the nation."

It's been wondrous for those enraptured by Heinlein no consequence juvenalia though. And it has brought many more into closer contact with the past as exemplified by conduct normally only seen only in unsupervised barnyards (present example notwithstanding).

Toss in advancement of the Marxist agenda regarding destroying the family in order to transfer power to the state and who could possibly complain?

glasater

From WSJ and Charles Murray linked previously by a brilliant JOM commentator:

The problem is this: Every time the government takes some of the trouble out of performing the functions of family, community, vocation and faith, it also strips those institutions of some of their vitality--it drains some of the life from them. It's inevitable. Families are not vital because the day-to-day tasks of raising children and being a good spouse are so much fun, but because the family has responsibility for doing important things that won't get done unless the family does them. Communities are not vital because it's so much fun to respond to our neighbors' needs, but because the community has the responsibility for doing important things that won't get done unless the community does them. Once that imperative has been met--family and community really do have the action--then an elaborate web of social norms, expectations, rewards and punishments evolves over time that supports families and communities in performing their functions. When the government says it will take some of the trouble out of doing the things that families and communities evolved to do, it inevitably takes some of the action away from families and communities, and the web frays, and eventually disintegrates.
Tully

In Loving the fundamental right being denied actually existed, namely, the right of a person to marry someone of the opposite gender. No one is denying that right to gays, it's just not a terribly useful right for them. In addition, the immutable characteristic invovled (race) was indeed immutable, not one based on voluntary actions. The nature/nurture debate on homosexuality aside, it is a characteristic defined by actions.

Likewise with "equal protection" arguments--the opposite-sex right is not being unequally applied at all. The Iowa court was engaging in naked judicial activism, and pretty much said so in their decision. That very type of judicial activism is what has motivated and inspired thirty states and counting to raise the hurdle from mere statute to entrenched state constitutional amendment.

Vermont did it right, and I applaud them for so doing. The Vermont law is a much bigger victory for gay rights than any cram-down court decision can ever be in a democracy. As we have seen over and over, those cram-down court victories tend to be rather Pyrrhic ones.

MayBee

glasater- that is excellent.

MayBee

Ha, Jane!

matt

Charlie;

My point exactly. Knumhotep & Niankhkhnum's tomb is one of over at least 100,000 found to date in Egypt. An uncommon practice validated by a single statistical entry does not make it widespread.

glasater

Thanks Maybee!

It's a longish article but one I'm going to pull out from time to time for a re-read.

Ignatz Ratzkywatzky

Sure it can, but that ain't the point of Gay marriage. The point of Gay marriage is to get the "benies" that straight married couples get.

I don't think that is the main point either.
The overriding point for gay activists, which may very well not include folks like Jane's resident lesbian, is to undermine traditional marriage for two purposes.
1. It essentially fully establishes homosexuality as a protected civil right, which is a gigantic legal lever to apply to (among others) churches and religious beliefs. A lever that gay activists have very clearly stated they will fully use.
2. Undermining and transforming society in their image is what leftists do.

Are there a lot of homosexuals who just want to live their lives and aren't leftists? Yes, but so what?
It is very often the committed few, rather than the masses, who transform a society. And it is more often than not when the committed few make the transformation that bad things ensue.
And contrary to Jane's pal, most homosexuals have no desire to marry. After an initial burst, gay marriage rates plummet where ever it is legalized, so it is not rectifying (a word I use here just as cautiously as some use 'niggardly' when discussing race) some widespread wrong that this is mainly concerned with.
The legal and conceptual damage to traditional marriage is done (which is the point) with very little of the concomitant benefit to gays for which this issue is supposedly raised.
If the choice is between state sanctioned gay marriage or no state sanctioned marriage at all then I guess I'm kind of in agreement with Charlie, if I understand him correctly. Let people be married privately and eliminate state sanctioned marriage altogether.
I don't think either choice is optimal but I'm curious as to who would object to the latter more, heterosexual Christians or homosexual activists. I suspect the gay activists would, as it would largely deprive them of a grievance and the aforementioned legal lever.

As an aside, the single guy above (can't remember who) making the point 'what about me?' has a pretty good point that I had thought about before.
Homosexuals don't want to marry someone of the opposite sex, just as singles don't, but instead say in order to be equally protected marriage must be redefined to include them. How is that different from singles? The slippery slope argument usually goes the polygamy route, but why shouldn't the definition be changed to allow singles to marry themselves? If they aren't, how are they not being denied equal protection?
There is no legally or logically consistent point at which this train can be stopped, only an arbitrary one. And if it isn't stopped the basic building block of society will be altered in the largest utopian social experiment in history. We already tried altering the system of legitimacy in which children are born and raised and look how well that's working out.

As an aside to Charlie, my earlier arguments that black people by and large resent gay rights being equated with their civil rights might possibly be labeled an appeal to the authority of black people but was not an ad hominem by any definition I have ever seen. If you're going to point out one of my logical fallacies at least don't do it fallaciously. :)

Danube of Thought

"Oh no, I'm intentionally making it difficult for you. You keep saying these things -- like that family units can't be established without traditional marriage -- that, when questioned, seem to run into problems."

Sure hasn't seemed difficult to me. Concerning the issue of family units, I thought it was implicit that I was talking about the United States and the West in general, where such units have arisen through many centuries of cultural tradition. In general, I would proceed very, very cautiously in making drastic alterations to those structures based upon the rather faddish thinking of the day. By the same token, I think it might cause serious problems if the Western tradition were suddenly imposed upon those folks in China.

"So when the American Revolution occurred, lading [sic] to the Founders committing High Treason and massively violating the law at the time, that wasn't okay?" Okay if you're willing to take the risk, as they were, and you win, as they did. When war breaks out, the victors are always okay, and the losers are not.

"The differences is that you're presenting a bunch of 'excepts'. These lead to contradictions." Of course they do. If you're not willing to accept such contradictions as inevitable, you have no business venturing into legal analysis. The first amendment forbids laws restraining freedom of speech and the press--unambiguously. Yet no one has ever seriously contended that we can't have copyright laws, laws against libel and slander, and the famous exception for yelling "fire" in a crowded theatre. And try to tell anyone subject to the UCMJ that he has the right of free speech.

"except for women who want to be in the infantry" Here's a bulletin for you, Charlie: there is no right, under the 14th amendment or anywhere else, to join the military or to be assigned to any particular branch.

"they're not apparently too hard to integrate into the air arms, or the motor pool, or the radio shack." That's simply true. It is not cost-free by any means, but there is a sufficient pool of women who can qualify for such positions that the services have seen fit to integrate them into it. When you become commander-in-chief, maybe you can work on putting them in the infantry, although the purpose to be served by doind so is quite obscure to me.

"I don't find the appeal to tradition per se very compelling." I don't much care whether you do or not. The art is to determine sensibly when to yield to tradition and when not to. There will be disagreements on this question, and we resolve them at the ballot box.

As far as the comparison between treatment of blacks and homosexuals under the equal protection clause, one line of inquiry is to ask whether, when the drafters wrote that amendment, did they have black liberties in mind? Yes, they did; that was the very purpose of the amendment. Homosexual marriage? Certainly not; there is no evidence that anyone writing that amendment ever gave a thought to that issue, any more than the framers of the first amendment thought they were forbidding libel laws.

"I'm not a lawyer." That's for sure.

"I'm concerned with what's right." I don't know many people who aren't. But no one is entitled to expect that what he thinks is right must therefore be reflected in law. Other people have differing views, and the differences are resolved through the democratic process.

I can explain all this to you, but I can't understand if for you.

Jane

Ignatz,

I think I was "the single guy above" which strikes me as really funny.

The other thing that is ironic is you seem to be saying we should deprive people who want to be married for the right reason, that ability, because it gives people who want to be married for the wrong reason - a legal lever. That's one of the sanest remarks in this conversation given how I feel about the lever holders, except that a denial based on the lever holders is actually one based on holding a different lever. Is it not?

Ignatz Ratzkywatzky

Ignatz,

I think I was "the single guy above" which strikes me as really funny.

LOL. Sorry Jane, I guess I didn't look close and thought it was one of those infrequent commentors who occasionally drop by.

The other thing that is ironic is you seem to be saying we should deprive people who want to be married for the right reason, that ability, because it gives people who want to be married for the wrong reason - a legal lever. That's one of the sanest remarks in this conversation given how I feel about the lever holders, except that a denial based on the lever holders is actually one based on holding a different lever. Is it not?

Well I didn't actually make a distinction between those who want to marry for the right or wrong reason. It is possible that both groups are marrying for the wrong reason but one is doing it solely for personal purposes while the other is doing it only for political and subversive, for want of a better word, reasons.

As far as I can untangle your forest of levers, both society and politics are a series of compromises and deals made upon ideals.
Someone is always holding a lever.
In this case, I believe the best thing for society is if traditional marriage, as it has existed for several thousand years is holding it, rather than ACT UP and the ACLU.

matt

what amazes me most, by the way, is the quality of this discussion versus what one might find on a leftist web site.

My closing statement on the subject will be that our Founding Fathers, our grandfathers, and even many of our parents are probably rolling in their graves with our acquiescence to gay marriage. This was a Judeo-Christian country, and the consensus, nay overwhelming view on the subject was very very clear until the early 1970's.

By fiat, in the mid 70's, the American psychiatric Association declared that homosexuality was not an illness. There were no studies done nor data generated. It simply was. Since then, it has become not just a movement for simple human rights and dignity, but rather a club to force not acceptance, but an embrace of homosexuality as a viable alternative.

One of the primary outfalls of the AIDS crisis (more a public health issue) was massive funding of HIV/AIDS research at the expense other research. A friend was at NIH in the early 80's and saw breast cancer research devastated as a result. When considering the statistics, this made no sense at all except that it was high profile with the right people. The same tactics of panic and hyperbole were at work as with many programs.

Porchlight

Commenter David Pecchia said something earlier in the thread that I didn't notice until just now:

This is not as clear-cut a case as it may seem: The Vermont Supreme court forced the legislature (back around 2000 or so) to either enact gay marriage or civil unions.

They put in civil unions, which were identical in every way with marriage except the name. Now, 8-9 years later, they are just putting in the finishing touches.

If true, then it seems to me that this is actually a case of judicial activism, not of the legislature deciding on its own to make gay marriage (or civil unions) legal in VT. It may have taken several years to get from there to here, but the origin of this action was mandated by the court.

Am I missing something?

Danube of Thought

Let us ponder a few more contradictions of the kind that seem to vex poor Charlie so.

The Fourteenth Amendment was never held to mean that women could vote, despite its language. Why not? Because it was well understood that the unambiguous language was simply not written for the purpose of enfranchising women. Indeed, had any of its framers ever thought that it would be argued to do so, they would probably have included an express disclaimer. It took a further constitutional amendment--the Nineteenth, in 1920--to confer that right.

The Thirteenth Amendment says "Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Yet this Amendment has never been held to prohibit a military draft. Why not? Well, maybe someone should put out something called Constitutional Law for Dummies, but I haven't seen such a publication yet. Probably the best thing to do is take a course in Constitutional Law at your local community law school.

Danube of Thought

Perhaps Mr. Murray should have made it clear that he was talking about families in the US and the West, and did not intend his remarks to apply to various sects in, say, China. But I think almost all of his readers understood that.

Jane

Am I missing something?

I dunno. What I heard was that Vt would have had gay marriage a decade ago, except for Howard Dean, who when eying the WH said "no way".

But if the Court said "either/or" it seems the legislature chose the "or" and nothing is making the legislature choose the "either" now.

My guess is that Vermonters have come to see gays as regular people over that time, and that the assimilation is going well so they see no reason to not to allow gay marriages. I think the same can be said of MA. If nothing else there seems to be less gay activism now.

Porchlight

But if the Court said "either/or" it seems the legislature chose the "or" and nothing is making the legislature choose the "either" now.

True. I guess my larger point was, the legislature was forced by the court to choose "either" or "or." They can't get back to "neither" no matter what political support may exist for it.

So this really can't be hailed as a pure victory for those who believe that judicial activism is the wrong way to go. This was the result of judicial activism ten years ago, even if Vermonters did eventually accept the idea in the meantime.

Jane

So this really can't be hailed as a pure victory for those who believe that judicial activism is the wrong way to go. This was the result of judicial activism ten years ago, even if Vermonters did eventually accept the idea in the meantime.

Perhaps. I just think if that had happened we would be familiar with the case law or at least the admonishment.

Appalled

Jane:

Porchlight is correct. The case is Baker vs. Vermont

Jane

Thanks Appalled.

Ignatz Ratzkywatzky

Another interesting column by Maggie Gallagher on gay marriage from NRO today. Briefly addresses some of my same concerns on the legal and social ramifications.

Porchlight

Thanks, Appalled. What I did not realize is that the current same-sex marriage bill is a completely separate bill that was introduced and passed by the legislature, not some modification to the existing law. So perhaps as Jane points out, it's more a case of Vermonters getting used to the idea over time.

But the cynic in me says: this is going to be GREAT for Vermont tourism when it goes into law just in time for leaf-peeping season on September 1!

Jane

Porchlight,

I always thought MA should capitalize on its gay marriage thing and attract tourists for that reason. We certainly can use the revenue. It doesn't seem to happen that way for some reason.

Jim Rhoads a/k/a vjnjagvet

DOT, I think I agree with your analysis -- particularly the interplay of the 14th and 19th Amendments as evidence that the 13, 14th, and 15th were passed to assure full rights to those in slavery .

One question, though. DId SCOTUS ever hold the 14th did not apply to a woman's right to vote, or did no one have the creativity to argue it?

Danube of Thought

I don't know the answer, Jim. All that I know is that if such an argument was ever made, it failed.

boris

Consider the word P O L Y G Y N Y ...

Literally means more than one wife. Illegal as hell. So clearly a same sex marriage with two women is polygyny.

No Way! that's not the common clear meaning of the word!

So what? Now suddenly words have common clear meanings? At least this is based on a literal interpretation of the word itself.

davod

When will the state remove a church's tax exempt status for not agreeing to marry a same sex couple?

cathyf

Well I do have to admit that so far the state has left the Catholic Church alone as far as refusing to marry divorced people.

davod

The problem is not same sex marriage as what it leads to. Now, if a pastor does not want to conduct a marriage of a same sex couple he or she can be prosecuted and the church deprived of its tax exempt status.

cathyf

Does anyone know of any situation where a couple has attempted to force a catholic church to marry them when one of the the parties is divorced? I'm curious as to how it turned out...

bad

Some Protestant churches will refuse to marry a couple if they don't believe that both parties are committed Christians in the evangelical sense.

Ignatz Ratzkywatzky

cathyf,

At this point there is no legal remedy to my knowledge to try and 'force' the Catholic Church to marry a divorced person. The state has not yet devised a method by which it can abrogate the first amendment to that extent.
The person either finds a method by which the marriage can be annulled or, do like my MIL did and join another church, in her case the Lutherans.

Davod,
That is only one of the legal minefields our church was forced to begin addressing after CA's idiot Supreme Court ruling last year. It is not at all clear we could have come up with any defense that would have satisfied CA courts. The voters gave us a reprieve in Nov thankfully.

JM Hanes

I find it hard to believe that a church can be required to perform a marriage ceremony for anybody who happens to show up at the door with a license. A justice of the peace in a state where gay marriage is legal might be compelled to do so, but as far as I know, a tax exemption doesn't mean a rabbi is obliged to perform a marriage ceremony for Christians.

I don't think it's difficult to distinguish between such religious services and church sponsored outreach designed to serve the general public regardless of creed -- whether or not one approves of government interference in such programs (which I don't, BTW).

Ignatz

I find it hard to believe that a church can be required to perform a marriage ceremony for anybody who happens to show up at the door with a license.

Why? I don't think your rabbi example is on point. Sexual preference is explicitly equated with race as a protected class. To deny a gay marriage under this theory is no different than denying a marriage based on race.

A justice of the peace in a state where gay marriage is legal might be compelled to do so, but as far as I know, a tax exemption doesn't mean a rabbi is obliged to perform a marriage ceremony for Christians.

The stated intent of a good number of gay activists in CA was to go to churches unwilling to perform gay marriages and force a lawsuit on them. Maybe they'd win and maybe they'd lose but in the meantime many small churches would be burdened with giant legal bills. The only reason it didn't happen immediately was because they knew Prop 8 was on the Nov ballot and they held off because it would have been terrible PR.
We along with many other churches were advised to amend our bylaws in an attempt to diffuse the threat but it is not clear it would have succeeded.

When the question comes down to 'equal protection' unfortunately there are judges who believe the imposition of 'equal protection' does sufficiently little harm to religious freedom that the former trumps the latter.

JM Hanes

I'll defer to your real world experience, Ignatz. I think you would ultimately win that lawsuit in the Supreme Court, but clearly the burden of having to do so, and real uncertainty as to the ultimate outcome, seem untenable, as you suggest.

While I support gay marriage and/or civil unions in principle, I do not support compelling any religious institution to perform any marriage not of its choosing. I'd have to call that result a pivotal difference between marriage and civil union -- and support only the latter.

davod

"Good: Gay Marriage done the right way."

I cannot wait for "Good: Sharia law done the right way."

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