Washington Attorney General Bob Ferguson is suing Barronelle Stutzman, owner of Arlene’s Flowers and Gifts, after she refused to provide flowers for a gay wedding. I have been writing about the tension between free exercise rights and anti-discrimination laws — a subject that I discussed at the conference this week at the Utah Valley University’s Center for Constitutional Studies. This is now an issue that is arising with greater regularity, including conflicts over wedding cakes and other items.
Ferguson is acting under provisions of the state’s Consumer Protection Act that bar discrimination on the basis of sexual orientation and is seeking an injunction requiring the florist to comply with the law. He is also demanding a fine of $2,000 for each violation.
The case involves the refusal to serve customer Robert Ingersoll. Stutzman insists that her religion barred such work. She described the scene: “He [Ingersoll] said he decided to get married and before he got through I grabbed his hand and said, ‘I am sorry. I can’t do your wedding because of my relationship with Jesus Christ.’ We hugged each other and he left, and I assumed it was the end of the story.”
However, the Attorney General says that the standard is clear: “If a business provides a product or service to opposite-sex couples for their weddings, then it must provide same-sex couples the same product or service.” Advocates of such enforcement note that we long ago stopped businesses from refusing to serve people due to their race and that this is merely an alternative form of discrimination.
Recently, a same-sex couple sued over an Oregon bakery’s refusal to make a cake for a same-sex couple.
The question is whether anti-discrimination laws are cutting into free exercise and first amendment rights for religious individuals, particularly those who believe that they are engaged in a form of expression or art in the preparation of flowers or cakes. These types of expressive acts may be distinguishable from other public accommodation cases like hotels or restaurants. Even though the same religious objections can be made by an evangelical Christian hotel owner, the flower and cake makers can claim that they are engaged in a more expressive form of product. It is, in my view, a difficult question because I do not see how anti-discrimination laws could not be used to negate a wide array of expressive activities.
I have long been a critic of the Bob Jones line of cases on tax exemption. I have long held the view that we took the wrong path in dealing with not-for-profit organizations, particularly in such cases as Bob Jones University v. United States, 461 U.S. 574 (1983). We need to re-examine how anti-discrimination laws are encroaching upon religious organizations to give free exercise more breathing space in our society — a position I discussed in a book with other authors.
I find these more recent cases more difficult than the tax exemption cases. I find the analogy to race discrimination in public accommodation to be compelling. I have also been a long supporter of gay rights and same-sex marriage. However, I have serious reservations over the impact on free exercise in an area of core religious beliefs. What do you think?
Source: Seattle Times
Government has no valid compelling interest in whether couples reproduce or not, David. That doesn’t pass the strict scrutiny analysis standard that a compelling interest requires. The ability to biologically reproduce is irrelevant to the rights analysis. It is, however, a common hook bigots try to hang their hat upon when trying to rationalize why homosexuals should be denied civil rights.
Again . . .
Can you show a specific damage to yours or any other heterosexual marriage by allowing homosexual couples to enjoy the same privileges (and bear the same responsibilities) that heterosexual enjoy?
If you can’t, you don’t have the requirement to pass the strict scrutiny of the compelling interest test.
Just so you don’t make up a definition of your own, a compelling interest is defined at constitutional law as a method for determining the constitutionality of a statute that restricts the practice of a fundamental right or distinguishes between people due to a suspect classification. In order for the statute to be valid, there must be a compelling governmental interest that can be furthered only by the law in question. Also called compelling governmental interest test and, in the case of a state statute, the compelling state interest test.
The right to contract – and again marriage is a form of contract – under the state of nature is the absolute ability to contract with whomever you wish for whatever purpose you want which consequently means that the right for same sex marriages is fundamental and reserved under the 9th Amendment.
Try again.
Gene H –
You seem to be confusing the idea of government having a compelling interest to regulate marriage and define it appropriately for that purpose, and the need for government to have a compelling governmental interest in order to infringe upon the unalienable rights of a citizen. We seem to be speaking about two different things.
The compelling interest of government in marriage is not about whether couples reproduce, but rather it is about the relationships formed through marriage and the fact that marriage is a public institution that affects all of society. It is about the rights, duties, and obligations that are created when individuals enter into the marriage relationship. Go back and read what I have posted previously in this thread.
Marriage is not a contract. If marriage were a contract, either party could just dissolve it at any time without even going to court and getting the State to allow for it. If I enter into a business contract with someone, and we both agree to change the terms of that contract, we don’t go to the courts to dissolve our contract. We just agree to change it and we do. Not so with marriage. Instead, laws outline what reasons might allow for dissolution of the marriage, and people who are once married can only be released from it through the court system or the legislature. Once marriage is entered into, the default understanding is that it is a relationship for life that cannot be changed, and all the rights, duties, and obligations prescribed and protected are built with that understanding.
Marriage might get initiated through a contract, but once entered into, marriage is a relationship like father to son. While a father and son might emotionally declare how they disown each other, they cannot change their relationship to each other. From the public perspective, they are father and son for life by virtue of the son being born from the father. Again, as the courts have said, marriage is not a contract but a public institution, and the State has a compelling interest to define this public relationship properly and to protect and prescribe the rights, duties, and obligations created by that relationship.
The role of reproduction is that it defines marriage as a civil right, a civil liberty that ought not be denied anybody. The State ought not interfere in the ability of individuals to marry and reproduce, such as by sterilization. It was the sterilization case I quoted earlier that initially defined marriage as a civil right. Government does not have a compelling government interest to step in and sterilize prisoners, thereby preventing his ability to later marry and produce children when he is released from prison. This concept should not be confused with the compelling interest of government to define and regulate marriage by virtue of the fact that it is a public institution entrenched in history and culture. Of course, when I speak about marriage like this, the context is opposite sex marriage, not so-called same sex marriage which is something different entirely.
If marriage were only a contract, I would agree with you that same sex marriage should have an equal opportunity for couples to enter into. This is why I said that domestic partnerships ought to define same sex relationships rather than marriage, because in reality, same sex couples basically treat their relationship as a contract. By changing the definition of marriage, they are basically changing all marriage to be a contractual relationship and leaving the reality of opposite sex marriage out in limbo with no clear legal understanding of what it is. It thrusts all the existing laws about marriage into question, because they were all written with the concept of opposite sex marriage. Thousands of laws would have to be rewritten. Eventually, same sex marriage will lead many homosexuals to the same conclusion that Masha Gessen reached… that the institution of marriage needs to be abolished because it is not suitable for defining the kind of relationships that happen in same sex coupling. I remind you that she has three children by five parents, one of whom is her brother, and she wants the law to define her family unit as five parents to the three children. As a gay activist who has entered into same sex marriage, she reasons that the institution of marriage creates difficulty in defining anything other than two parents, so she says that the institution of marriage must be abolished. She also candidly says that any gay people who claim that allowing them to marry will not change the institution of marriage are lying. She is an empirical example of the difficulties same sex marriage creates for the legal system that affects everyone in society.
The state does not qualify the validity of marriage based upon the suitability of those seeking marriage, other than what is statutorily defined such as age and if there was a marriage involving bigamy, and in most states gender (though this is not likely to be much longer).
If you have David, stated that gay marriage goes against nature and therefore is unqualified to be considered a valid marriage, know that the state does not disqualify a marriage based upon the suitability for each partner. An adult male and an adult female can not be forced into a divorce or prohibilted from marriage because someone in a gov’t capacity arbitrarily decides the two are not suited to be married. The state cannot force a divorce upon a couple. One or both of the persons must instigate the action in civil court. Why is this? It is because the courts have held the state does not have a legitimate interest in deciding that two persons who are legally able to marry cannot marry each other.
Look at also at Loving v. Virginia. (prohibited the illegality of interracial marriages) if a person were to substitue interracial marriage with gay marriage, it is apparent the issue is one in the same.
Chief Justice Earl Warren’s opinion for the unanimous court held that:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
It went further to the rule of fostering white supremacy. Which a person can substitute white supremacy with homophobia or bigotry.
There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.
Darren –
The reason the courts have said they do not step in is because they consider marriage to be for life. The courts step in to allow divorce and give the rules by which divorce might be allowed. I quoted the legal decisions on this in a previous post.
I understand your point that replacing the idea of “interracial marriage” with “gay marriage” in Loving v. Virginia might lead one to think that the arguments apply, but as I mentioned previously, this is a superficial artifact of thinking that same sex marriage (the courts seem to prefer this term over gay marriage) is the same as opposite sex marriage. As the high court in Montana explained last December, same sex marriage does not have the reproductive component to it which is the very foundation for why the courts have held marriage to be a civil right. The quotes of the courts always seem to be selective to leave out the reproductive part of their arguments. I already went over this several times in previous posts. It seems like nobody in this forum is paying attention because they already have their mind made up.
I would like someone to explain the rationale for making same sex marriage a foundational civil right. What is the reasoning? The plaintiffs were asked this in the Montana case, and the response basically amounted to blank stares of having equal social status. Quoting court cases that have found marriage to be a civil right is not appropriate because all these court cases go back to reproduction and the role marriage has played in facilitating the right of individuals to propagate their progeny. Same sex couples represent a coupling that is completely different from opposite sex couples because of the lack of gender diversity and because of lack of reproductive ability. The courts have been silent about the importance of gender diversity. That important aspect is expounded upon by theologians or perhaps a few biologists like myself. However, the courts have argued rather extensively about the role of reproduction and how sperm banks and the like are not sufficient to define the same sex coupling as a fundamental civil right.
So rest assured that I understand the analogy you make, but it is only superficial and relies upon the assumption that same sex marriage is identical to opposite sex marriage. It is not. The homosexual activists have carefully crafted language using the word marriage in order to confuse and deceive on the issue, or in the words of Masha Gessen (an LGBT activist and gay person who married), gays are lying about marriage not changing by what they are doing. Interracial marriage, however, is identical, if you are still talking about opposite sex marriage, and this has been the context in these courts.
davidm2575,
“People of religious persuasions are being prosecuted for living honestly according to their conscience.”
—————————————————–
Can you cite some examples of these alleged prosecutions? It would be helpful to your stance if you could.
Of course, you could also replace the word “religious” with “other” in your given quote and arrive at the following:
People of other persuasions are being prosecuted for living honestly according to their conscience.
Which, in my opinion, is a more factual statement.
gbk –
I was talking about this case cited above with the florist. The florist has a religious conviction that gay marriage is not the same as opposite sex marriage, and that it simply attempts to legitimize something she believes is harmful to the individuals who engage in it. Now with the changing laws to make sexual orientation a protected class of people, she has found herself being prosecuted for living according to her conscience not to facilitate something she considers immoral.
David,
I don’t need you share your probably incorrect readings of Descartes. I’m probably more familiar with his work than you are. Let’s stick to the issue that your definitions are made up. Since it seems to fluster you so badly when that is pointed out.
“Your first statement that arguments are rhetoric is completely false. Even my 17 year old daughter knows better than that.” Tell her to get back to me when she’s graduated a top tier ABA accredited law school. Since she apparently has the same linguistic inability as you, let me help you with that:
rhetoric /ˈrɛtərɪk/. n.,
:the art of effective or persuasive speaking or writing, especially the exploitation of figures of speech and other compositional techniques:
argument: /ˈɑːgjʊm(ə)nt/, n.,
1:an exchange of diverging or opposite views, typically a heated or angry one:
2: a reason or set of reasons given in support of an idea, action or theory:
Rhetoric is argument as you are trying to persuade another that your position is correct. Lawyers are taught the skill of rhetoric as argumentation. It is the essence of the adversarial system. Also, if you’re trying to impress anyone by citing your 17 year old as an authority because she has a high IQ, I didn’t know you were a stand up comic. I would tell you mine, but it’s gauche, inappropriate and it would only make you cry.
“You have turned the entire discussion into an emotional tirade by claiming that I am reinventing words or that I am a homophobe, ad hominem accusations for which you have not a shred of evidence.”
Emotional? Hardly. Pointing out the underpinnings of your argument are crap isn’t an appeal to emotion or any other emotionally driven tactic. It’s detached analysis of your language. In fact, you made the argument semantic when you starting it using made up definitions. You were called on it and it rained on your lil’ parade. As for my definitions? You are free to check the OED here – http://oxforddictionaries.com/ – to see if any of the definitions used are partial or incorrect. You’re going to be disappointed though.
If you don’t like being called homophobic (which is your emotional reaction to a statement of fact based on your displayed behavior), then don’t display an extreme and irrational aversion to homosexuality and homosexual people by trying to deny them equal protection of their civil rights. I said your arguments were wrong due to an improper foundation, namely made up definitions of what constitutes substantive objective evidence. That is not an ad hominem attack. If I had said your arguments are wrong because you’re a dick, that would an ad homimen attack. See the difference? Attacking your argument isn’t the same thing as saying you’re wrong because of some personal quality about you. You really shouldn’t use words you don’t really understand. It doesn’t help your argument and it give people the impression you don’t know what you are talking about. Speaking of which . . .
“I prefer to buckle down on the more important rationale used to argue that gay marriage is not a civil right at all. You only ASSUME that gay marriage is a civil right.”
I do no such thing as assume when it comes to law. I know gay marriage is a civil right because 1) I know where rights are derived from under our system of law and 2) that just because a right has not been formally recognized does not mean it does not exist. Under the social compact model of government, all rights exist absolutely at the state of nature. Since the essence of marriage is a promise, it is a form of contract, and under the state of nature you are free to contract with whomever you like for whatever you like. Consequently the right to marry someone of the same sex exists at the state of nature.
“The last quote from you above implies that despite everything that I have said, the legal establishment is on your side.”
They pretty much are if they understand the 14th Amendment and the nature of rights as inherent and reserved under the 9th Amendment.
“Other comments falsely suggest that my arguments and everybody else’s arguments that claim same-sex marriage is different from opposite-sex marriage are strictly religious arguments.”
That’s not a false suggestion but a statement of fact. Marriage as a heterosexual only enterprise is a religious construct rooted in dogma. At many times through history and under different prevailing religious practice, same sex unions have been recognized.
“You claim that you cannot find from me a coherent argument based in civil rights law.”
That’s right.
“You know that I am not a lawyer, yet you attempt to bring me into your area of expertise here, perhaps to put me at a disadvantage, or perhaps to put yourself in more familiar territory.”
Argue with an expert get an expert argument. Poke a bear? You get bit.
“In either case, I quoted the argument from the Donaldson et. al. v. Montana case because it was a legal argument made by legal professionals who make the coherent argument that gay marriage is NOT a civil right. I am very disappointed that your response is basically to dodge discussing their argument.”
If you insist. You won’t like the outcome. The Montana Supreme Court, in a 4-3 decision on Donaldson et. al. v. Montana, rejected a request by six same-sex couples to be given equal benefits to married opposite-sex couples in the state because the couples’ argument that the state’s entire “statutory scheme” should be found unconstitutional was too broad of a request. In other words, they did not rule that the couples had no basis in Constitutional law to assert their claim, only that the claim was non-specific. Non-specificity in a claim is a curable technical error and the case was left open to appeal, or in this case, open to be refiled with an amended pleading. Chief Justice Mike McGrath wrote, “It is this Court’s opinion that Plaintiffs should be given the opportunity, if they choose to take it, to amend the complaint and to refine and specify the general constitutional challenges they have proffered.” The reason for this according to McGrath was that “[b]roadly determining the constitutionality of a ‘statutory scheme’ that may, according to Plaintiffs, involve hundreds of separate statutes, is contrary to established jurisprudence [. . . ] These are important issues and should be decided only after the statutes involved are specifically identified and specifically analyzed in district court proceedings.”
This was not a victory for the side arguing against the plaintiffs and was not based on the merits of the defense arguments. In fact, this case – although it did not result in a res judicata decision for the plaintiffs – was nonetheless a win for the proponents of civil rights for homosexual couples in that it was not a ruling against the plaintiffs but a dismissal on curable technical matters. Since the decision was only handed down in December 17th of last year, I suspect that the amended pleading and resubmittal is still in process. I also suspect from what I know of the relevant case law around the 14th Amendment that the amended pleading will be victorious given the narrow split of the court on the original filing and the dismissal without prejudice to refile.
“Can you at least concede that I have indeed provided you with a coherent argument based in civil rights law?”
No. Because you haven’t.
Now . . . can you answer the question?
Can you show a specific damage to yours or any other heterosexual marriage by allowing homosexual couples to enjoy the same privileges (and bear the same responsibilities) that heterosexual enjoy?
Every single person who has attempted to deny homosexuals their civil rights in this forum has failed to make their argument in the end because they cannot answer that simple question. Without a specific harm to heterosexual couples, you have no legal leg to stand on for arguing to deny homosexuals their inherent civil rights.
Now is when you should learn to walk away.
David,
When the courts ruled that black people were human beings and were actually 100% of a person, that offended the deeply held religious beliefs of many. Still does.
The 14th Amendment offended the deeply held religious beliefs of many. Still does.
When the Court ruled that black and white people could get married just like same color folks, that offended the deeply held religious views of many. Still does.
Your point is?
Getting back to my original question. That was quite a job of tap dancing you did there. You never did answer the question. You didn’t because you can’t. Name a single way your marriage would be harmed if a gay couple are allowed to be married other than you find it offensive to somebody’s tender religious sensibilities.
David sez, “…legal arguments from more learned men than me that gay marriage is not and never has been a civil right…”
*********************************************
You need go no further than this blog to find people more learned than you in legal matters. As I said earlier, your solipsistic understanding of law carries no weight. As for Gene, he actually went to law school and understands the law. So does Nal and many others here. Your understanding of legal principles is as primitive as the typical high school student. Subjective experience is not law. Is the schizophrenic’s hallucination real? The schizophrenic will tell you it is.
David, I bet you have a black friend too.
When are you going to actually answer the simple question both Gene and I posed? In case you forgot, it is this. How will yours, or any other marriage be damaged if a gay couple gets married? Whether they live on the other side of the country or next door?
OS, you are asking the wrong question, even though I have addressed it before. This is about what is best for the homosexual and for the couple or individuals who engage in gay marriage. You complain about hypotheticals or theoretical constructs, but then when I give you actual empirical evidence in the form of Masha Gessen, you marginalize it as some kind of statistical outlier or anecdote. You say it is the opinion of only one person, but it is more than an opinion. It is empirical evidence because she has lived through two gay marriages and speaks from that experience. You are dismissive of it, yet you have presented no empirical evidence to the contrary, only wranglings of disbelief that anyone would disagree with you.
Gessen described what her actual gay marriages have led her to understand, that the entire institution of marriage must be abolished. She speaks adamantly that other gay activists are lying when they tell everyone else that the institution of marriage will be unaffected. She speaks as a gay person who wants all gays to have the right to marry… she has been fighting for that for years. You can pretend all you like that this actual empirical evidence was never presented. You can act like I never mentioned it. Such is only your bigotry and that of your colleagues who are too blind to see facts right in front of their face. You surround yourself with people who think like you do, so you feel comfortable thinking that everyone else in the world with a different opinion has to be some kind of wacko homophobe. I think we have said enough. Any question you bring up, just scroll back through what I have already said above and I suspect you will find the answer in my old posts.
OS, please don’t forget what I have said about this article here about the florist. That is another way in which non-gay couples are affected by laws that try to define sexual orientation as a discrimination category. People of religious persuasions are being prosecuted for living honestly according to their conscience. That is not right. That is using force of government to force people to change their religious beliefs or at least to act contrary to their religious beliefs. So we see that gay marriage leads to a loss of religious freedom for millions of people who are Jewish, Christian, and Muslim.
DavidM,
If you want to call me biased in favor of civil rights, you better believe I am.
You keep engaging in pseudo-legalistic solipsism. Not to mention making up your own word definitions that have no legal meaning.
I am biased in favor of equal rights for all. You have made it abundantly clear where your prejudices are. When are you going to share with us just how any conventional marriage–yours, mine, or anyone else’s–is going to be harmed if the gay couple down the street are legally married?
David,
Arguments are rhetoric. Specifically the art of effective or persuasive speaking or writing, especially the exploitation of figures of speech and other compositional technique. Yours is wordy, but not very good. I’ll explain why starting with the definition of “substantive”. These definition, by the way, come of the authoritative dictionary used by scholars, the Oxford English Dictionary.
substantive /ˈsʌbst(ə)ntɪv/, adj.,
1: having a firm basis in reality and so important, meaningful, or considerable:
2: having a separate and independent existence.
Your attempt to redefine “evidence” to include the subjective fails right there. What happens in the mind need have no firm basis in reality. Delusional people abound. And if your evidence – such as “subjective evidence” – exists only in the mind, then it is dependent upon the mind and does not have a separate and independent exists, i.e. it is not substantive let alone substantive evidence. Speaking of which . . .
evidence /ˈɛvɪd(ə)ns/, n.,
:the available body of facts or information indicating whether a belief or proposition is true or valid:the study finds little evidence of overt discrimination; (Law) information drawn from personal testimony, a document, or a material object, used to establish facts in a legal investigation or admissible as testimony in a law court:
As you yourself admit, personal testimony is – although used in court – a weak form of evidence and not the preferred method of finding truth. The concept of best evidence. While usually discussed in the terms of documentation (the original of any document, photograph, or recording be used as evidence at trial, rather than a copy, and a copy will be allowed into evidence only if the original is unavailable), it is actually a much broader concept when applied to find facts. The fallibility and subjective nature of personal testimony is well known in the legal world and has been for some time. As such, in the hierarchy of best evidence, it is at the bottom of the heap. When possible, other evidence is preferred. That hierarchy runs physical evidence, documentary evidence, testimonial evidence. This is because people can say all kinds of nonsensical and untrue gibberish but an object is what it is absent the unreliable filter of the mind. That courts sometimes use it is a reflection of necessity not preference. This is also why the scientific method rejects subjective proof in toto over objective proof.
I don’t care what you think is substantive because your understanding of the word is distorted. Your argument in based on an inherently nonsensical definition of evidence. Logically, it is a castle made of sand.
That you’ve retreated to semantic drift in an attempt to redefine word’s meanings to suit your argument is pathetic. Ask Bron how well that tactic worked out for him around here in the past. You’ll find we’re sticklers for meaning around here.
I find it interesting that one who objects to being called a homophobe – again relying upon an attempt to redefine the word – acts homophobic.
homophobia /ˌhɒməˈfəʊbɪə, ˌhəʊmə-/, n.,
:an extreme and irrational aversion to homosexuality and homosexual people.:
Why . . . that sounds just like your behavior! The law of identity holds. You do know that one, right? Does the name “Aristotle” ring a bell? Your objection shows that you are both not being true to yourself and owning what you are, but that you apparently have an aversion to appearing either extreme or irrational in your bigotry.
bigotry /ˈbɪgətri/, n.,
intolerance towards those who hold different opinions from oneself:
The propagandist often not only seeks to obscure their intent, but to obscure the irrationality of their position behind obtuse language.
To be clear, I stand for your right to both have and express your opinions. If I were intolerant, as an editor, I could just delete your comments. However, while you are entitled to your own opinions, you are not entitled to your own facts. When it comes to what the experts say about homosexuality, the “mainstream medical and mental health organizations in this country [. . .] conclude that these orientations represent normal forms of human experience. Lesbian, gay, and bisexual relationships are normal forms of human bonding.” This position holds true among them even though there is still debate on the causation. http://www.apa.org/helpcenter/sexual-orientation.aspx
I’d ask you the standard question at this point (Can you show any substantive harm to heterosexual couples by giving homosexual couples equal rights? – A question none have been able to answer up to this point.) but since you’ve demonstrated that you want to use made up definitions of what constitutes the words “evidence” and “substantive”, I won’t bother. The answer will be just as much gyrating gibberish as what you’ve written above.
The fundamental weakness of your argument rests in its foundation upon bad definitions.
It gets worse from there.
Now what did you say your training was? Because it manifestly isn’t logic or rhetoric.
And again, as for animus? I have yet to show you any animus. But I can give you some if you’d like it. Ask anyone. My pen can be much more acid than to what you object which is a clearly and merely using accurate language in description of your behavior.
Carry on, homophobe, carry on.
Gene, what we are discussing here has been discussed for hundreds of years. You never answered my question about Descartes, so I guess I will not take the time to share his arguments with you. In the early 1600’s he argued these points. I am not inventing new definitions. Either you are ignorant or dishonest. In either case, I see little point in continuing any kind of discussion with you.
For the record, I have never expressed any kind of extreme and irrational aversion to homosexuality and homosexual people. I have had many homosexual friends over the years. I have been beat up for befriending homosexuals.
Your first statement that arguments are rhetoric is completely false. Even my 17 year old daughter knows better than that. I mentioned to her how you responded to my points by quoting the dictionary, and she burst into uncontrollable laughter and expressed her disbelief how any learned person could possibly do such a thing. She immediately made the point that words only approximate the concepts of the mind and rarely express exactly what we are trying to communicate. She asked, “how could he not know that? Now granted my daughter is among the brightest in our county here, recently being honored in Science category and receiving a scholarship to attend the University of Florida where she will study Violin performance and Computer Engineering. I am very proud of her, but something is wrong when a high schooler understands things like this and a professionally trained expert in logic does not. I can only imagine her astonishment when I tell her that you said arguments are rhetoric. I think I will add that you said that the Oxford English Dictionary is “the authoritative dictionary used by scholars.” I really question now exactly who I am corresponding with.
Lastly, for the record, you turned the argument to be semantical by quoting from the dictionary, and partially and incorrectly at that. You have turned the entire discussion into an emotional tirade by claiming that I am reinventing words or that I am a homophobe, ad hominem accusations for which you have not a shred of evidence.
I have presented the legal arguments from more learned men than me that gay marriage is not and never has been a civil right. Not a single rebuttal in this forum from anybody except to attack me personally, trying to paint me as religious, or paint me as a homophobe, or claim that my arguments hinge on reinventing words, or claim that I am irrational, oppressive, or whatever other epithet suits your purpose. Clearly, your mind is running on empty.
OS:
I like to say when a person starts telling you how religious they are, hold on to your wallet cause you are in for a screwing of one kind or another.
David,
I have never even hinted that the legal establishment speaks with one voice. It doesn’t, never has in the past, and will never do so in the future. However, the legal system is structured in such a way as to hear all the evidence and come to a conclusion. The majority opinion may prevail….for a while. See Dred Scott as an example. The Montana supreme court told the plaintiffs their initial pleading was too vague, go fix it and come back. The closeness of that ruling, with the admonition to the plaintiffs, gives at least a hint as to what they are thinking.
As for whether some individual LGBT person is for or against something is about as relevant as whether you or I am for or against it. The court will rule on something more solid than a single person’s opinion. History will be the judge, just as time moved on and exposed the Dred Scott decision as the miscarriage of human rights and justice that it was.
OS wrote: “I have never even hinted that the legal establishment speaks with one voice.”
The following is what you wrote:
“Get right down to it, I have yet to see a coherent argument from you that is based in civil rights law. As Nal and others have pointed out, the points you raise are almost identical to those raised by the defendants in Loving v Virginia. And before that, the defense arguments in Brown v Board of Education. And the arguments against the Civil Rights Act of 1964.”
From my perspective, I have given you many coherent concepts, to which you typically respond with reference to authoritative texts that are selected to be supportive of your particular bias. In this particular instance, you are focused on one minor point of mine concerning the idea that equality means the applicability of law, which you claim have failed in other civil right cases. Rather than flesh out the nuances of how my rationale differs from the arguments in these cases (although I did do a little bit of that), I prefer to buckle down on the more important rationale used to argue that gay marriage is not a civil right at all. You only ASSUME that gay marriage is a civil right.
The last quote from you above implies that despite everything that I have said, the legal establishment is on your side. Other comments falsely suggest that my arguments and everybody else’s arguments that claim same-sex marriage is different from opposite-sex marriage are strictly religious arguments. You claim that you cannot find from me a coherent argument based in civil rights law. You know that I am not a lawyer, yet you attempt to bring me into your area of expertise here, perhaps to put me at a disadvantage, or perhaps to put yourself in more familiar territory. In either case, I quoted the argument from the Donaldson et. al. v. Montana case because it was a legal argument made by legal professionals who make the coherent argument that gay marriage is NOT a civil right. I am very disappointed that your response is basically to dodge discussing their argument. Can you at least concede that I have indeed provided you with a coherent argument based in civil rights law?
Bron,
There are people who could screw up a peanut butter sandwich. As I pointed out upthread on May 1 at 6:57PM, some variation on the Golden Rule is found in every major religion. Do they follow it? You know the answer to that one. There have been any number of posts to this blog about the willingness of religious leaders to deprive people of both liberty and life, in some cases with apparent glee.
As Lord Acton wrote, “Power corrupts, and absolute power corrupts absolutely.”
Eric Hoffer wrote something that seems to apply here as well, “To know a person’s religion we need not listen to his profession of faith but must find his brand of intolerance.”
Front page writer on the Daily Kos, Meteor Blades (Tim Lange) has a sig line I like, “Don’t tell me what you believe. Show me what you do and I will tell you what you believe.”
rafflaw:
I think it is the love of money, not money itself. It is the human aspect. Money can be a tool for good or evil, it depends on the owner.
Humans screw up religion and give money a bad name.
The Golden Rule is pretty good and only a reprobate could screw that up.
OS,
Excellent response to David. I am beginning to think that money and religion are the roots of all evil.
APA and MPA amicus brief here. Apparently did not “take” when posting.
http://www.aclu.org/files/assets/donaldson_v._montana_-_brief_for_amici_curiae_apa_and_mt_psych_assoc.pdf
David,
I see you are more concrete minded than I had previously thought. You talked about “legal quagmires” as though they would make government unworkable. I gave yo and example of a legal quagmire exponentially worse than legalizing gay marriage, and the government continues to work. So be it.
Now for the best part. You write, “You argue from authoritative texts rather than from a rational understanding of the issues involved.”
Do I have that right? I prefer to use authoritative texts instead of “rational understanding,” whatever that is? As if that is a Bad Thing. When trying to argue law and logic, it is of a good idea to know what the terms mean. The term, “Rational understanding” is seldom found in law except in cases of competency. I once tried to explain the difference to a couple of lawyers who were defending a fellow on a Capital charge. They declined to request the full evaluation for competency under the Dusky criteria despite my detailed explanation of the difference between competency and criminal responsibility examinations. What could possible go wrong?
This, for one thing: Dufour v. Mississippi , 479 u.s. 891 (1986)
They couldn’t say I didn’t warn them about the difference, but they wanted an evaluation on the cheap. I am sure Mr. Dufour appreciates them saving the money. Where his Donald Dufour now? He is here:
Status: Sentenced to death in Mississippi in March 1983. Sentenced to death in Florida on July 3, 1983. He is currently awaiting execution.
My only reason for bringing that thirty year old case up is soley for the purpose of letting you know I have a firm grasp of what the term “rational understanding” is in a legal context. Your understanding ain’t it!
Now on to the Donaldson, et al, v Montana case. That was a narrow 4-3 decision. Not only that, the majority ruling made it abundantly clear what the problem with the appellant’s case was, and left a loophole for a perfected appeal the plaintiff’s lawyers could drive a semi through. Here is the money quote from the majority opinion:
OS, rest assured that I understood your point about the IRS. A smile stretched across my face when I read it and I agree with your point. My point was simply that even as you departed to something that when removed from context appears completely unrelated, so likewise my comments had a point to the original topic. Nevertheless, we both agree that the thread should be steered back to the subject of gay marriage and how changing the laws in this regard lead to serious constitutional problems like this florist being prosecuted for her religious convictions and personal conscience.
Yesterday I watched a YouTube of Masha Gessen saying “gay marriage is a lie.” She is a journalist who also is a lesbian and LGBT activist who came out 30 years ago. She participated in the gay marriage thing in Massachusetts. Later she divorced and remarried, and she basically has a family structure with three children and five parents now, one parent being her brother, meaning one of her child’s father is also its uncle? It is very confusing.
In any case, Masha Gessen says that gays are lying when they claim that the institution of marriage will not change with gay marriage. She agrees that gays should be allowed to marry, but she says the institution of marriage should be done away with. She is adamant that gay marriage will lead to this, and she flat out says gays are lying when they claim it won’t affect the institution of marriage. Gessen does not see why we should identify only two parents. She wants five parents to be identified in her family. You can see the video and transcript at: http://lybio.net/masha-gessen-gay-marriage-is-a-lie-institution-of-marriage/people/
As for the Montana case, I already read the dissenting opinions with great interest. Like I said before: you might disagree with the majority opinion, but you should not pretend that the legal establishment is squarely on your side. I gave you a legal argument from a high court for why gay marriage is NOT a civil right while opposite sex marriage IS a civil right. Does that legal argument mean anything to you at all? You quoted what some dissenters thought about the decision, which amounted mostly to deflection and attributing motives for the decision rather than the crux of the argument. Do you have any thoughts of your own on the legal argument for why gay marriage is not a civil right?
As to your moving the goal posts to say you meant modern “testimonials” about the existence of God. It is an ipse dixit argument absent objective proof.
But animus?
No, no, no. There is no animus is pointing out that you’re full of crap when you say the words “subjective proof”, David. There is no such thing and I was simply pointing that out. See, words have meaning. For example;
subjective /səbˈdʒɛktɪv/, adj.,
:based on or influenced by personal feelings, tastes, or opinions:
Contrasted with . . .
objective /əbˈdʒɛktɪv/, adj.,
: (of a person or their judgement) not influenced by personal feelings or opinions in considering and representing facts: not dependent on the mind for existence; actual:
These are antithetical concepts in the world of proof in addition to being antonyms. I know this because I am a professionally trained logician and an expert on what constitutes proof.
“Please do not try to stereotype me as a religious man just so you can justify in your mind how I must be an idiot. Address only the arguments that I make.”
Stereotype? Not in the slightest. I didn’t say you were religious. I said you were using an irrational definition of proof. I did address the “argument” you made. I attacked your definition of proof. The rest of what you say is long winded gyrating gibberish. And again, there is no animus in pointing that out.
Had I attacked your argument based upon you being an idiot that would have been pure ad hominem in the form of the classical informal fallacy and invalid. My attack upon your definitions is purely valid logic based in linguistics and the standards of rhetoric and logic. Your feelings, tastes and opinions do not constitute proof any more than mine or anyone else does. However, asserting that the term “subjective proof” is an oxymoron in the realm of logic and reason is formally valid and based in factual definitions of the words “subjective” and “objective” as used in the English lexicon.
There is no such thing as “subjective proof”.
There is subjective opinions and feelings. These are proof of nothing but the speaker’s state of mind.
There is objective proof. These are proofs of reality that exists absent the mind based on quantifiable observation, reason and repeatable experimentation.
Ner’ the twain shall ever meet. Kind of like your argument and logic. An argument built on a nonsensical definition will remain nonsensical. Your definition of proof including the subjective is nonsensical.
However, if you’d like to see some animus, I’m sure I could dredge some up for a moralizing, zealous, oppressive, irrational homophobe such as yourself.
If you’d like to see some, just ask.
Hi Gene. As a “professionally trained logician and expert,” what is your opinion of Descartes? Are his writings logical or irrational? If I decide to take another stab at helping you understand my concepts, I may borrow from him and credit him accordingly.
Your arguments are not substantive concerning the concepts that I have expressed, but rather they are semantic. You cherry-picked a definition to challenge the language used rather than the concept. Dictionaries are fluid and change their definition of words as society changes. Even in my lifetime, I have been surprised about how the meaning of words have changed, and how number one definitions move down to number three or four while new definitions become more common and take first place in usage. It is not fair to pick out one particular definition from a dictionary and force that meaning on a word or phrase used by somebody else who clearly indicates they are using the word in a different context.
Another common dictionary definition of substantive is, “pertaining to an individual.” This is closer to its meaning in my context. In the medical dictionary, the word subjective means, “designating a symptom or condition perceived by the patient and not by the examiner.” Such is not meant to suggest that the symptom or condition is unreal, but rather it simply distinguishes that which the subject experiences from what the examiner can observe. A subject might actually experience pain, but the examiner cannot observe it or discern its cause. Sometimes individuals have certain evidence and proof that is not observable by others. If you think another phrase besides “subjective proof” would better convey this concept, I am open to considering it. For me, I think the contrast of subjective and objective proof is satisfactory, except for the fact that strict empiricists like you who hold on firmly to the assumption that objective proof is the only source to knowledge generally finds the phrase incomprehensible at first glance.
If you are honest with yourself, you will see that your objection to what I have said is based upon refusing the language I use rather than exploring the concept using reason. This goes back to what I said earlier in the thread, that the division between science and religion happens because of different assumptions and language. When one party refuses to consider other assumptions or different language, an impasse of bigotry is created. The two sides to a controversy are prejudiced against the other through the use of negative stereotypes. A white supremacist uses a word like nig*** to express his contempt for a black man, or a homosexual rights activist uses a word like homophobe to express his contempt for anyone who holds to a different opinion about human sexuality. In the end, it is all the same thing, fighting against others using emotive words rather than logic.
I did find it interesting how you started your post by denying any animus, but then end your post by calling me an oppressive, irrational homophobe. What field did you say you were a professionally trained expert in? Logic?
David:
you aint never gonna convince us gay marriage shouldnt happen so they can have the bliss we heteros have:
loss of property, contested child custody, paying serious money to lawyers [that by itself is reason enough for lawyers to be on board], hatred of the one you used to love, messed up children from divorce.
David,
This discussion has gone off the rails again. Passing laws regarding marriage has nothing at all to do with how each person experiences their religion, metaphysics or the supernatural. That has about as much to do with depriving others of civil rights as whether you like spinach or not. So you object. Fine; noted for the record.
As for any law(s) regarding marriage creating a “legal quagmire” as you put it, have you ever tried to read the IRS code? Now THAT is a legal quagmire. Sorry old chap, but you are jumping through logical and legal hoops in order to impose your own view of marriage on those who are not interested. Not only not interested, but who are diametrically opposed to your world view on the subject.
Get right down to it, I have yet to see a coherent argument from you that is based in civil rights law. As Nal and others have pointed out, the points you raise are almost identical to those raised by the defendants in Loving v Virginia. And before that, the defense arguments in Brown v Board of Education. And the arguments against the Civil Rights Act of 1964.
Those arguments were all losers too.
I fail to see how your reference to the IRS code is more closely connected to this issue than my response to Nal. I initially attempted to avoid Nal’s question, and even said that this is not the forum. However, he kept asking, so I finally obliged as it pertained to a proof of the role assumptions play in bigotry. He claimed that showing a logical fallacy in the argument of his link would demonstrate bigotry, while I held that it would not. It is holding too strongly to assumptions about stereotypes that creates bigotry. From my perspective, I proved he had bigotry because he did not relent when shown the logical fallacy, but from his perspective I imagine he fails to see the logical fallacy because he can’t let go of his basic assumptions long enough to examine the issue logically using a different set of assumptions.
Your mistake in this most recent post is looking at same-sex marriage as a civil rights issue. Clearly you are not reading any of my references. I’m not sure you are even reading my posts.
The Montana Supreme Court’s opinion in Donald et. al. v. State of Montana stated that “the right to marry has not been held to mean that there is a fundamental right to marry someone of the same gender.” The opinion goes on to say that virtually every state to consider the issue has held that same-sex marriage is not constitutionally protected as fundamental either in the state or the Nation as a whole.
You perhaps disagree with this court and all the courts who have ruled in similar fashion, but you should not pretend that the legal establishment is squarely on your side and that I do not know what I am talking about. I go to the original source documents and check out everything you say. I see when you are blowing smoke and only giving the appearance of understanding the subject. Clearly you are just repeating the superficial homosexual propaganda and cloaking it with some references to well known court cases and bills. You give the appearance of knowledge, but you are not logical thinking about the issue and providing your own analysis. Ironically, it reminds me of religious people who blindly quote the Bible to support their assertions. They quote texts without really understanding what they are quoting. Clearly you are not quoting the Bible, but your legal references basically serve the same purpose. You argue from authoritative texts rather than from a rational understanding of the issues involved.
To illustrate the issues involved and offer a high court’s legal argument for why same-sex marriage is not a fundamental civil right in the same way that opposite-sex marriage is, I provide the following quote from the Donaldson et. al. v. State of Montana case decided last December:
JAN DONALDSON and MARY ANNE GUGGENHEIM, MARY LESLIE and STACEY HAUGLAND, GARY STALLINGS and RICK WAGNER, KELLIE GIBSON and DENISE BOETTCHER, JOHN MICHAEL LONG and RICHARD PARKER, NANCY OWENS and MJ WILLIAMS, Plaintiffs and Appellants,
v.
STATE OF MONTANA, Defendant and Appellee.
No. DA 11-0451.
Supreme Court of Montana.
Filed December 17, 2012.
…
¶26 The replication, by children, of the procreative marital relationship as role-modeled by their married parents not only perpetuates the race-sustaining function by populating the race, but also builds extended families which share hereditary characteristics of a common gene pool. Throughout history, this genetic commonality has provided an invaluable tool to enhance human survival. Common hereditary traits provide critical understanding of an extended family’s physical and mental strengths, weaknesses, and susceptibility to disease and death. Even before the advent of modern science, this information was collectively shared among extended family members and served to alert and prepare them for eventualities related to the onset of disease and other life patterns, thus strengthening their health and livelihood. Modern medical technologies have only increased this capability, as research of an extended family’s genetics now serves to predict, detect, and treat common, family-related diseases, further enhancing human survival.
¶27 Upon extended families are built people groups or ethnic groups of individual races, tribes, kindred, and nationalities based upon their broadly shared genetic characteristics. In addition to developing understanding about their mutually shared health risks, people groups throughout history have looked outward to their physical surroundings and, based upon their common genetics and collective experiences, have obtained the knowledge necessary for their people to adapt to and function well in the physical environment, thus enhancing their health and longevity. People groups around the world have been linked to make up the larger human race. While world customs and cultures vary greatly, these societies share the common foundational element of a woman and a man united in marriage. It is little wonder the Supreme Court has said that marriage is “fundamental to the very existence and survival of the race.” Zablocki, 434 U.S. at 384 (citing Skinner, 316 U.S. at 541). One court well summed up these principles: “[T]he State has a compelling interest in fostering the traditional institution of marriage (whether based on self-preservation, procreation, or in nurturing and keeping alive the concept of marriage and family as a basic fabric of our society), as old and as fundamental as our entire civilization, which institution is deeply rooted and long established in firm and rich societal values.” In re Estate of Cooper, 564 N.Y.S.2d 684, 688 (N.Y. Surrog. Ct. 1990); see also Conaway, 932 A.2d at 630 (“In light of the fundamental nature of procreation, and the importance placed on it by the Supreme Court, safeguarding an environment most conducive to the stable propagation and continuance of the human race is a legitimate government interest.”).
¶28 These principles demonstrate clearly that marriage is not merely a private act. It is also a public act which serves a public function critical to society, that of bringing together female and male to create and raise the future generation. Courts have recognized this, holding that the above-discussed critical societal functions are uniquely provided by marriage between a woman and man and cannot be replicated by other relationships.[3] “Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage. The legislature could reasonably conclude that the institution of civil marriage as it has existed in the country from the beginning has successfully provided this desirable social structure and should be preserved.” In re J.B., 326 S.W.3d 654, 677 (Tex. App. Dallas 2010) (internal citations omitted). “Indisputably, the only sexual relationship capable of producing children is one between a man and a woman. The State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children. Because same-sex couples cannot by themselves procreate, the State could also reasonably decide that sanctioning same-sex marriages would do little to advance the State’s interest in ensuring responsible procreation within committed, long-term relationships.” Standhardt v. Super. Ct. of Ariz., 77 P.3d 451, 462-63, ¶ 38 (Ariz. App. Div. 1 2003) (emphasis added); see also Citizens for Equal Protec. v. Bruning, 455 F.3d 859, 868 (8th Cir. 2006) (“[Appellees’] argument disregards the expressed intent of traditional marriage laws—to encourage heterosexual couples to bear and raise children in committed marriage relationships.”).[4] “[S]o far as heterosexuals are concerned, the evidence that on average married couples live longer, are healthier, earn more, have lower rates of substance abuse and mental illness, are less likely to commit suicide, and report higher levels of happiness—that marriage civilizes young males, confers economies of scale and of joint consumption, minimizes sexually transmitted disease, and provides a stable and nourishing framework for child rearing—refutes any claim that policies designed to promote marriage are irrational.” Irizarry v. Bd. of Educ. of Chicago, 251 F.3d 604, 607 (7th Cir. 2001) (citations omitted). Modern medicine makes it technologically possible for some same-sex couples to artificially conceive and bear children. However, that fact does not diminish the truth that human life cannot be sustained without procreative marriage relationships, even in light of modern technology.
¶29 Consequently, the right to marry has not been held to mean there is a fundamental right to marry someone of the same gender. “[V]irtually every court to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole.” Conaway, 932 A.2d at 628 (citations omitted). “The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. . . . The right to marry is unquestionably a fundamental right. The right to marry someone of the same sex, however, is not `deeply rooted’; it has not even been asserted until relatively recent times.” Hernandez v. Robles, 855 N.E.2d 1, 8-9 (N.Y. 2006) (citations omitted).[5]
¶30 Given this exclusive importance of marriage, the law developed to give it sanction, permanence, and a formal structure upon which to base legal entitlement and obligation. Although commonly referred to as a contractual relationship, the obligation of marriage is more than merely contractual. As the Supreme Court has explained, “when the contract to marry is executed by the marriage, a relation between the parties is created which they cannot change. Other contracts may be modified, restricted, or enlarged, or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities.” Maynard, 125 U.S. at 210-11, 8 S. Ct. at 729. “When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties and obligations of which rest, not upon their agreement, but upon the general law of the State, statutory or common, which defines and prescribes those rights, duties and obligations. They are of law, not of contract.” Adams, 51 Me. at 483. As we have noted, “it is to the interest of the state that [marriage] be permanent.” Franklin, 40 Mont. at 350, 106 P. at 354.
¶31 Upon this structure of permanence, and again in view of the exclusive importance of marriage, the state has built a system of exclusive benefits and protections on behalf of, and dependent upon, marriage. “[M]arital status often is a pre-condition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g., legitimation of children born out of wedlock).” Turner, 482 U.S. at 96, 107 S. Ct. at 2265. “In terms of federal benefits, the Government Accounting Office (GAO) compiled in 1997, and updated in 2004, a list of federal rights, responsibilities, and privileges granted to married couples, but denied to same-sex couples. According to the study, there were 1,138 federal statutes providing such benefits.” Conaway, 932 A.2d at 582 n. 6 (citations omitted). Plaintiffs provided the District Court with a list of over 340 Montana statutes that classify based on marital status and that would be impacted by the proposed relief sought.
A “Subjective Proof” proves that gods are subjects of consciousness, rather that objects of consciousness. Without consciousness, subjects of consciousness don’t exist.
Nal, when dealing with metaphysical experiences entirely taking place in the mind, there is no proof either way whether the experience (god, spirit, whatever) are subjects or objects of consciousness. However, if the manifestation experienced is empirical, something outside of yourself, such as hearing an audible voice or seeing something with the physical eyes, then that person would know that it is something acting upon his consciousness rather than being a product of his consciousness. The proof is still a subjective proof because nobody else witnessed it or experienced it. It remains outside the realm of scientific inquiry. The person with the experience has proof for himself, but he can do nothing more than tell others about it. He cannot prove it to them.