By Mike Appleton, Guest Blogger
“So let us be blunt about it: we must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God.”
-Gary North, “The Intellectual Schizophrenia of the New Christian Right,” (Christianity and Civilization: The Failure of the American Baptist Culture, Number 1, Spring, 1982)
In Loving v. Virginia, 388 U.S 1 (1967), the Supreme Court held that Virginia’s prohibition of interracial marriage violated the Due Process Clause of the Fourteenth Amendment. “The freedom to marry,” wrote Chief Justice Warren, “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” 366 U.S. at 12. Many people were hoping that the Court would formally accord that status to same-sex marriage last month. But it did not happen. Edith Windsor will receive hundreds of thousands of dollars in tax refunds from the federal government, but the Court did not find it necessary to address the issue of same-sex marriage as a constitutional right, and elected not to do so. United States v. Windsor, No. 12-307 (June 26, 2013).
While that central constitutional issue remains unresolved, opponents of same-sex marriage are on the move. The Freedom Federation, a coalition of civil and religious right-wing organizations ranging from Americans for Prosperity to Wallbuilders, has issued a pre-emptive strike in the form of a signed letter declaring that “the Supreme Court has no authority to redefine marriage… .” The letter, which can be found on the Freedom Federation website, asserts that should the Court grant legal recognition to same-sex marriage, it “will be acting beyond its proper constitutional role,” and concludes with the vaguely ominous warning that “this is the line we must draw and one we cannot and will not cross.”
We have witnessed in recent years an increasing willingness by state legislatures to adopt nullification statutes, facially unconstitutional but politically potent. Now the religious right has determined to extend the nullification doctrine to the judicial branch, employing the language of religious freedom to hide a theocratic dominionist vision of government and society.
In 2004 and again in 2005, legislation known as the Constitution Restoration Act was introduced in both the House and the Senate. If adopted, the act would have stripped the federal courts of jurisdiction to consider any case challenging the acknowledgment of God as a source of law by any federal, state or local governmental unit. The act would have also mandated impeachment for any violation. The legislation did not make it out of committee, but its intention was crystal clear: the rejection of the secularist notion of separation of church and state.
The drafting of the statute was largely the work of Herb Titus, a lawyer who served as the first dean of the law school at Regent University and who famously represented Judge Roy Moore, the Alabama jurist removed as Chief Justice of the Alabama Supreme Court for his refusal to comply with a federal court order compelling the removal from the courthouse rotunda of a monument to the Ten Commandments.
The failure of the attempted legislative assault on established jurisprudence construing the Establishment and Free Exercise clauses, combined with the pronounced hatred of the LBGT community by many religious fundamentalists, virtually guaranteed that something resembling the Freedom Federation letter would emerge when it did. The co-author of the letter is Mat Staver, the founder of Liberty Counsel and dean of the Liberty University School of Law. In March of this year, Liberty Counsel welcomed the Florida Faith & Works Coalition to its member organizations. The Coalition represents approximately 600 conservative pastors engaged in promoting universal Christian dominionism. From its website: “Subduing and having dominion over all the earth commands responsibility over the entire animate and inanimate world including the moral values that form the basis of society. We affirm that, historically, America was established as a Christian nation and its policies were based on biblical principles. The guardian of those biblical principles has always been His church. And His church, in recent history, has passively abdicated its guardianship responsibility.”
The arguments in the Freedom Federation letter are boldly theocratic. First, it is urged that marriage solely between a man and a woman is mandated by “natural moral law,” a product of reason. But it approaches natural law in the same manner that Justice Scalia approaches the Constitution, as a rigid and dead body of law. (It also fails to identity which system or systems of natural law it endorses, but that’s another topic.) The truth is that our understanding of natural law theory and of the Constitution have evolved precisely because reason evolves as it is informed by knowledge and experience.
The letter next asserts that natural moral law is “affirmed, fulfilled, and elevated by Christian teaching,” thus adding the biblical foundation for the treatment of marriage between a man and a woman as divinely ordained and not subject to expansion or modification by positive law. This is not only an argument against a secular view of marriage; in accordance with dominionist theology, it is also a rejection of religious pluralism.
Finally, the letter claims that same-sex marriage, once legitimized, will inevitably lead to its compulsory recognition by Christians, thereby undermining freedom of religion and conscience. This position is demonstrably absurd, of course, since no religious sect has ever been compelled to grant sacramental status to any marital union that conflicts with its own doctrinal requirements. And in the eyes of the law, no marriage has ever required religious approval as a condition of legitimacy.
Fundamentalist Christians must recognize by now that they are losing the battle against the ultimate acceptance of same-sex marriage. But they are also patient and vigilant. The Freedom Federation letter is a reminder that the preservation of secular government and religious freedom will also require patience and vigilance.
Juliet,
You summed it up nicely in one sentence. Agreed, he cannot come up with a single logical reason for opposing same-gender marriage. His basic argument boils down to, “Because I don’t like it and that’s that.” He admits he will not and cannot be harmed. He admits it will have zero impact on his life. He agrees he is in favor of equal treatment. Then he retreats back to wanting to create second class citizens without full and unabridged rights for the simple reason he doesn’t believe in their “lifestyle.” The law is against his argument, history is against his argument, and changing social mores are against his philosophical position. We have been down this road before with interracial marriages.
As I said, at the end of the day, there is this strange fascination with sex I find among homophobes. Makes one wonder just what kind of sexual fantasies they have, but I don’t think I want to know. David is putting an awful lot of energy and time into something he admits won’t affect him one way or the other. As they say, denial is not just a river in Egypt.
David keeps talking about something he calls, “The homosexual agenda.” That is actually true. Homosexuals do have an agenda. It is called being treated equally and fairly by both society and the law. Not better treatment, and certainly not worse treatment as is the case now, but equal treatment.
Otteray Scribe wrote: “David keeps talking about something he calls, “The homosexual agenda.” That is actually true. Homosexuals do have an agenda. It is called being treated equally and fairly by both society and the law. Not better treatment, and certainly not worse treatment as is the case now, but equal treatment.”
Describing the homosexual agenda in this way is like describing the Republican agenda as being about limited government.
Long ago I discussed the harm as being related to its effect upon how the next generations in society will understand marriage. My concern is not about my immediate marriage, but about how children will grow up and understand marriage to be nothing more than a contract between two people who want to make a lifetime commitment to live together. It will perpetuate the lowering of the special place women have in society, devaluing them even more. Such leads to fewer men choosing to marry women. There is much more that can be said, but I have been over this so many times, apparently falling upon deaf ears, that it hardly warrants repeating anymore. Repetition is the tool of teachers, but at some point it does no good and for the sake of peace, we just need to let people remain in their ignorance.
There is absolutely no compelling reason for State government to be forced to broaden their definition of marriage. When laws become so vague and broad that they can begin to be applied to anything, they end up destroying liberty and freedom. This has happened with free speech issues many times at the local levels of government, such that it has caused a Constitutional principle to be forged that local governments must craft laws that are specific and show a compelling interest by government to do whatever it is that they do.
Many religious people argue that government has no business either defining or regulating marriage in any way. So their reaction to government getting the laws wrong will be to go underground with their marriages just like the polygamists have done. Other people are more on the fence about it, but they will just view government even more suspiciously than before. In both groups, a fracture is created in society where a growing number of people become disgruntled and distrusting of government. They avoid government or outright become antagonistic toward it like Timothy McVeigh.
Go ahead and stick your head in the sand and presume that society has changed and everybody else just needs to get with the program, but when somewhere between 40% and 50% clearly disagree in strong terms, and when the majority of folks consistently vote contrary to your viewpoint, one might question whether you really believe in democracy or if you just want to use the judiciary to railroad your viewpoint over the will of the people.
It’s truly impressive, Juliet. Especially the logic-contortionist act he keeps going through to try to escape the fundamental bigotry of his position. He’s got some reversals in there that could cause whiplash.
Hope you’re feeling better.
Thank you, Gene. I’m still in the hospital, but doing well. This has given me an opportunity to really “listen,” since participation has been mostly out of the question.
I’ve never seen anyone argue so long, and so poorly, about a topic he claims does not impact his family.
“because it will preserve your own sense of self-worth and propriety.”
Don’t forget “superiority” too, Tony. 😉
DavidM: My position has never argued they were different in name only.
My inference is that your position has been that any legal benefit of marriage can be replicated in a civil union law, therefore there is no need to call them the same thing. The implication is that civil unions do not need to be called “marriage” in order to get all the benefits of marriage, and therefore the purity of the word “marriage” that in your mind includes your mystical concepts of specialness that exists only in the joining of male to female can be preserved.
Which I summarized as being different “in name only” with respect to the law.
If you do NOT think they should be equivalent under the law, if you DO think different laws apply to the two different types of union, then you are simply a bigot (by definition) that thinks homosexual love and commitment is less worthy of legal protection than heterosexual love and commitment, and because of your bigotry you wish to deny others happiness in love and legally protected mutual commitment because it will preserve your own sense of self-worth and propriety.
Tony C wrote: “If you do NOT think they should be equivalent under the law, if you DO think different laws apply to the two different types of union, then you are simply a bigot (by definition)…
A bigot is basically a prejudiced person who is intolerant of any opinions differing from his own. Deducing that the biological differences that exist in same sex unions and opposite sex unions provide a rational basis for treating them differently under the law suggests the opposite, that I am not a bigot. The fact that I am open to changing my view based upon a logical and rational basis based in law or science is indicative that I am not prejudiced. Your prejudicial view, however, is that I am somehow trying to deny others love and happiness. Your view is bigotry because there is no rational basis for it in anything I have said. You are just parroting the talking points others have indoctrinated into your mind, concepts which you have accepted without question, and the fact that they do not apply to my arguments is unimportant to you. You assume that they must apply in some way or I would be agreeing with you and not disagreeing. Despite repeated attempts to define the basis for my views, you choose to stereotype me instead and ignore what I have said.
Others working from your same paradigm or worldview, contributors such as Gene H and Otteray Scribe, do the same thing. Your camaraderie among yourselves gives you all comfort and confidence that you are right in the same way that religious people gather with other people who think like they do and stereotype others as being outside of the truth and therefore unworthy of being heard.
Tony C wote: “… that thinks homosexual love and commitment is less worthy of legal protection than heterosexual love and commitment, and because of your bigotry you wish to deny others happiness in love and legally protected mutual commitment because it will preserve your own sense of self-worth and propriety.”
I believe homosexual love and commitment is the same as heterosexual love and commitment, and I believe they deserve happiness in the same way as everybody else in society. They should be treated equally and fairly under the law. Their relationships have absolutely nothing to do with my own sense of self-worth. All you guys do is repeat the same tired red herrings. Nothing new here. Have a nice day.
And your attempts to define marriage around procreation is a blatantly religious definition of marriage despite your protestations to the contrary.
By the way, your cherry picking is annoying and a poor strategy.
“Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation.” Maynard v. Hill.
Society changed.
Get with the program.
I’m only serious about a dialog when the other person has a clue what they are talking about, David.
You don’t.
DavidM: nobody loses any rights or benefits to which they might be entitled because of the union. Perhaps a gay couple might dissolve their union easier than an opposite sex couple might,
Then that would be a difference in rights and benefits! It would be a benefit to one person that their partner’s lifelong commitment is legally difficult to break, it makes it more likely their partner will be tractable to negotiation should unforeseen issues arise, it makes it more likely they will not be abandoned in times of need, it makes it less likely their partner will marry them on a whim if the marriage is difficult and expensive to exit.
Further, by positing this condition you reveal that you are not opposed to the rules for “civil union” differing dramatically from the rules for marriage (since the rules for dissolution are a critical condition of marriage), which puts the lie to your earlier claims that they are identical and differ in name only.
In your mind they would be different rules, and different rules mean different outcomes, enforcements, rights and benefits, and allow “civil unions” to drift ever further away from “marriage.”
Gays want equality under the laws of marriage, not just now with one “civil union” bill that starts out equivalent but permanently and including any future modifications to the rules of marriage and prohibiting future modifications to the rules of gay civil unions. The only way they can obtain that permanent equivalence is by “identity of set,” they need exactly the same set of rules that apply to heterosexuals to apply to them by the same name as used in the law: They need to be legally married.
Tony C wrote: “which puts the lie to your earlier claims that they are identical and differ in name only.”
I don’t know what you think is a lie. My position has never argued they were different in name only. My position is that people are trying to force them to be the same using semantics, by classifying them under the same label. It is the same tactic used by anti-abortionists, to claim the unborn are people deserving equal protection.
If this were an experiment, and the law treated same sex unions as domestic partnerships and opposite sex unions as marriage, if they truly are equal unions, the laws would evolve such that they could not be distinguished from each other. At that point, there would be a good argument to treat them both as marriage.
What’s there to dodge, David?
And there was no dodge: you are arguing for unequal rights and unequal protection. Period. End of story. Your denials notwithstanding.
It’s obvious in all of your arguments and in lines like “My position is that there are enough differences between same sex unions and opposite sex unions that they should be treated differently by the law.”
I’ll repeat since you are hard of understanding and I’ll rephrase this so it doesn’t go over your head: none of the “differences” you cite in your religious definition of marriage are a legitimate state interest in the transaction and relationship. None. Nada. Zip.
Face it.
Your bigotry is exposed for what it is.
Run along.
Gene H wrote: “none of the “differences” you cite in your religious definition of marriage…”
The problem is that I have not made any religious definition of marriage. I have used the definition of marriage made by the court, such as in the SCOTUS case of Maynard v. Hill. Always ignored by you and simply labeled religious for your own convenience so as not to discuss it.
I see you don’t care about serious dialogue on this issue, so I will run along now.
DavidM,
I never cease to be amazed at your leaps of logic in order to support bigotry and discrimination. You tried procreation as an argument, but I pointed out that many people marry for reasons other than procreation. Older people and infertile people, for example. Some people marry and have kids who should not, like the woman who threw her baby at officers. Some folks simply don’t want to have kids because they don’t like or cannot care for children.
You may be surprised at the number of people who have little or no interest in sex. Their marriages are not loveless; some people just have low libidos. That applies to both heterosexual and homosexual people. The state has no interest in how often or how little they have sexual relations. Not so long ago the SCOTUS ruled the state has no business in people’s bedrooms: Griswold v. Connecticut, 381 U.S. 479 (1965).
Some couples, both gay and straight, are unable to have sexual relations due to physical reasons. An acquaintance of mine is a musician and the organist at his church. Only recently his state allowed him to marry his long-time companion. The marriage took place only a few days before his companion died of cancer. Was that union about sex? I hardly think so.
Many people cohabit without being interested in marriage. Many people I interview these days are single parents who have never been married. Some are interested in marriage at a later time in their lives, while others intend to stay single. Who am I to say whether they can or cannot be married? Incidentally, some single parents I know are gay or bisexual.
I have racked my brain trying to think how any gay couple getting married would have affect the marriage of my wife and myself. I cannot come up with a single reason, legal, psychological or physical. I can easily come up with about a dozen ways in which forbidding loving gay couples the right to marry harms them. And by the way, I have read stories of some jurisdictions expressly forbidding legal rights be given to civil unions. That takes away certain rights of inheritance, medical decision making, ability to file joint tax returns, and even some property rights.
Some, including you, have thrown out the red herring argument of polygamy and/or polyandry. Some politicians have claimed if gay marriages are allowed, people can marry children or animals. That is absurd on the face of it. The state could allow such things, I suppose, but it won’t and shouldn’t.
Tony C. pointed out how multiple partners/spouses have many more legal and psychological issues than a single spouse. However, if the state finds a way around all those unique hurdles, I am not about to tell others how to live their lives based on their own religious and moral belief system, as long as there is no child abuse and all parties are consenting without coercion. I don’t see how that is possible, because communal marriage has so many complications compared to individual marriage. But, this argument has been thrown out as a distraction, a red herring. The state can legalize and regulate same-gender unions without legalizing other forms of marriage. Forms that are actually legal in some parts of the world.
With all the arguments and ad hominem belittling others you have displayed here, you have yet to explain exactly how you and your own family will be harmed if the gay couple living down the street from you get married. Either by a minister at the church or by a judge at the courthouse. How will you be harmed if they are suddenly able to file a joint tax return? How will you be harmed if they are able to make medical decisions for each other, if needed?
At the end of the day, this is all about icky sex, isn’t it? And your anger at their “immorality.”
And by the way, when you try to talk down to Gene, it would be funny if it were not so sad. Gene is a polymath/polyhistor, who has forgotten more about the law than you will ever know. You lecturing him reminds me of this commercial featuring five-time NASCAR Sprint Cup champion Jimmie Johnson and Elliot Sadler, who has won three races in the past 15 years.
OS wrote: “I have racked my brain trying to think how any gay couple getting married would have affect the marriage of my wife and myself.”
Why do you and others keep going back to same tired arguments when I have already agreed long ago that we are in agreement on this. A same sex union does not directly affect my marriage. Why keep going back to this when it is very clear that I accept this premise?
There is a concept in science about a reductionist approach to study versus a holistic approach. What is the best way to study issues? It is based on the concept that sometimes you can’t see the forest when you focus on an individual tree. In ecology, we realize that sometimes you have to study populations or even communities to understand the effect. For example, in fire ecology, unless looking at the community, one might think that a forest fire is bad, bad, bad. When looking at the community level, we find good reasons for periodic fires in regards to species diversity.
In this case, you cannot look only at your own self and your own marriage. You have to look at society and concepts of civilized versus uncivilized society. We have covered this so much in the past, I am too tired to keep repeating myself. Have a nice day.
Tony,
I completely agree on the testability of the early universe models issue. I’ve also long thought that M-theory and a collision of branes just as easily explained “the Big Bang” and early expansion without resorting to a singularity (which even when I favored the BBT model I accepted was a physicists way of saying “we don’t know”). This new notion about mass though I think might (as you suggest) resolve some of the issue about expansion in such a way as to support either a new model or make some of the issues with the cyclic model go away. I tend to think though that it may favor M-theory though if you consider the work in M-theory related to gravitation. If gravity is a transdimensional property that “bleeds” from one membrane to another, why couldn’t mass be the same way? As the relative states of the branes change over time, mass increases(?). That could also help explain why we had such a hard time finding the HIggs (and are still working to figure out what kind of Higgs we’ve got evidence of).
Gene: Thanks!
I will point out that Inflation is also untestable.
So is the Big Bang, and to the best of our knowledge, String theory.
Not only that, but a finer point; if there is no way to distinguish Wetterich’s idea from existing theories, then the only reason to prefer one over another is based on logic.
The following (in italics, [commentary mine]) are excerpts from a good discussion Here. I have purposely left out some of the “support” commentary which I do not think is itself supportable!
Since its introduction by Alan Guth in 1980, the inflationary paradigm has become widely accepted. Nevertheless, many physicists, mathematicians, and philosophers of science have voiced criticisms, claiming unfulfilled promises and lack of serious empirical support. In 1999, John Earman and Jesús Mosterín published a thorough critical review of inflationary cosmology, concluding that “we do not think that there are, as yet, good grounds for admitting any of the models of inflation into the standard core of cosmology”.
At present, while inflation is understood principally by its detailed predictions of the initial conditions for the hot early universe, the particle physics is largely ad hoc modeling.
While inflation depends on quantum field theory (and the semi-classical approximation to quantum gravity) in an important way, it has not been completely reconciled with these theories.
In order to work, and as pointed out by Roger Penrose from 1986 on, inflation requires extremely specific initial conditions of its own, so that the problem (or pseudoproblem) of initial conditions is not solved: “There is something fundamentally misconceived about trying to explain the uniformity of the early universe as resulting from a thermalization process. […] For, if the thermalization is actually doing anything […] then it represents a definite increasing of the entropy. Thus, the universe would have been even more special before the thermalization than after.”[99] The problem of specific or “fine-tuned” initial conditions would not have been solved; it would have gotten worse.
A recurrent criticism of inflation is that the invoked inflation field does not correspond to any known physical field, and that its potential energy curve seems to be an ad hoc contrivance to accommodate almost any data we could get. [emphasis mine].
In the early proposal of Guth, it was thought that the inflaton was the Higgs field, the field which explains the mass of the elementary particles.[36] It is now believed that the inflaton cannot be the Higgs field[64]. [Which leaves… nothing.]
Paul J. Steinhardt, one of the founding fathers of inflationary cosmology, has recently become one of its sharpest critics. He calls ‘bad inflation’ a period of accelerated expansion whose outcome conflicts with observations, and ‘good inflation’ one compatible with them: “Not only is bad inflation more likely than good inflation, but no inflation is more likely than either. … Roger Penrose considered all the possible configurations of the inflaton and gravitational fields. Some of these configurations lead to inflation … Other configurations lead to a uniform, flat universe directly –without inflation. Obtaining a flat universe is unlikely overall. Penrose’s shocking conclusion, though, was that obtaining a flat universe without inflation is much more likely than with inflation –by a factor of 10 to the googol (10 to the 100) power!”
In addition to that, even a layman’s reading of the current theoretical status seems to me to show that what was called “inflation” is now just a name for a whole collection of disparate theories that cannot be unified, each of which explains one problem with Guth’s theory at the expense of creating another or exacerbating another.
Given two untestable ideas (Wetterich and Big Bang / Inflation Theory [BBIT]), it seems to me BBIT has been explored enough to conclude it is screwed, and those that adhere to it instead of an alternative are ignoring contradictions in order to have some explanation.
Personally I don’t think that is necessary, and actually think it is more harmful than just admitting ignorance: At the moment the proposed “Inflation” is supposed to end and the normal expansion of the universe proceeds, we don’t know what happened before then or how the Universe came to be at that point. Perhaps it is cyclic, perhaps a big bang, perhaps branes collided and created that state directly. Or perhaps, to generalize Wetterich; we are misinterpreting red shift and blue shift; or perhaps (as Petit, Moffat and Albrecht have all independently proposed in 1988, 92, and 99) the speed of light is not a constant but in the early compactified universe was 10^{60} times greater; which would also reduce reliance on BBIT as an explanation.
Ignorance allows unfettered exploration of possibilities; thinking one already knows the answer [Inflation must have happened] restricts exploration, often to the exclusion of the best explanation. I believe the following is a paraphrase of a Mark Twain observation: It isn’t so much what you don’t know that hurts you, more often it is what you know that just ain’t so.
I think for early-universe cosmology, “untestable” is not really a criticism that should be leveled by any side, because they are all untestable. The preferred solution (by Occam’s Razor, which is not infallible) has to be the one that creates the fewest unexplainable, paradoxical, or baffling ramifications or new “givens.” At one point that was certainly the BBIT theory, it explained more mysteries than it created, but the complications revealed by exploration of that model (which I think are irreconcilable) mean to me it is no longer the preferred solution (or even a valid solution) at all; I think it creates more mysteries than it explains.
You really don’t know what you are talking about, David, and I’m absolutely certain I understand the law and jurisprudence better than you do.
You are arguing for UNequal rights and UNequal protection.
Your assignment is to re-read the 9th and 14th Amendments until you understand them.
Gene H wrote: “You really don’t know what you are talking about, David, and I’m absolutely certain I understand the law and jurisprudence better than you do. … Your assignment is to re-read the 9th and 14th Amendments until you understand them.”
Another typical dodge. Instead of sharing your vast legal knowledge with an ignorant person like me, you choose to give me an assignment that will supposedly enlighten me. This is nothing more than a typical elitist response we might expect from an aristocrat who will not condescend to to the intellectual level of the common people.
The 9th Amendment is pretty short: “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”
I have never made any argument that the Constitution forbids gay marriage or forbids same sex unions. So what does this have to do with my arguments?
Gene H wrote: “You are arguing for UNequal rights and UNequal protection.”
No I am not. That is the same argument the anti-abortionists make about you concerning the unborn. Just like I would argue that the unborn be distinguished from the born, I simply argue that same sex unions be recognized by the law and granted the privileges that should go along with that as well as require the obligations and duties of the parties involved.
Tony,
This is totally off topic but I wasn’t going to email you something like this without your permission so I’m posting here because I know you are following this thread. It is something based on previous conversations I thought you might find interesting:
Universe May Not Be Expanding After All, Cosmologist Says
It’s untestable, but it’s a neat idea.
randyjet: Now I will have to assume that you will support plural marriages if gay marriage is a right.
Gay marriage is not equivalent to polygamy; it is still two people.
Polygamy (or polyandry) may indeed be a right, but it becomes problematic in the law when multiple spouses are present. In polygamy, if the husband is ill or dies; who exactly has the authority to make decisions on his behalf (or for his estate)? How does the inheritance work? How does custody and property sharing work if one member of the marriage divorces the rest? Can a wife divorce another wife, are they “married?”
Simplicity in law is not necessarily a reason to prohibit something, but some of these problems may be intractable.
If the Court prohibited the barring of polygamy, I would not be upset. I would not engage in it either, but I believe consenting adults can do as they please, and as long as the multiple marriage scheme does not entitle the participants to any special government benefits or consideration us monogamists get, as long as the participants are treated equally under the law, as long as the law protects the participants from coercion or subjugation or a violation of their rights in such a marriage, I am fine with it.
What other people do with their private lives is not my business as long as it does not harm me or create new expenses for me. Since we already let men have children by many mothers, since we already let people cohabitate and enjoy sex and reproduction with whomever they please, I fail to see how formalizing such committed relationships would do me any harm (if no new benefits accrue beyond the benefits of monogamous marriage).
Rights are inherent, they do not come from the state, however the inverse – that the state grants rights – is a common misconception among those ignorant in law and basic civics. This is a core foundational principle taken from the natural law tradition that our government was founded upon. Everything I said about the origin of rights and the proper relationship of government to marriage is factual. That it blows up your arguments against equal rights for homosexuals based on the silly notion that a right not specified doesn’t exist is merely inconvenient for you.
Gene H wrote: “That it [natural right theory] blows up your arguments against equal rights for homosexuals based on the silly notion that a right not specified doesn’t exist is merely inconvenient for you.”
Really? After all this time you do not realize that you and I agree on natural law theory?
It does not blow up any of my arguments at all, unless you erroneously believe that all rights are natural rights. Surely that is not what you think, is it?
Do you understand that the three types of Constitutional review are rational basis review, intermediate scrutiny, and strict scrutiny?
Do you understand that the SCOTUS uses rational basis review for contract law, and that you have argued that marriage is simply a contract between two people to have a lifetime committed relationship? Do you understand that fundamental rights require strict scrutiny? Such analysis on your part means that gay marriage is not a fundamental right like opposite sex marriage is.
I will say it again, that my position does not deny any right of two people of the same sex to form a relationship that commits them to each other for the rest of their lives. My position is that there are enough differences between same sex unions and opposite sex unions that they should be treated differently by the law. You think marriage is simply a contract, but I agree with the courts who have articulated that marriage is more than a mere contract. It would seem reasonable to deal with same sex unions under contract law as a domestic partnership, like California has done, and leave marriage alone, treated as a matter of law that requires approaching the judiciary or legislature to undo the marriage bond.
Under my scenario, nobody loses any rights or benefits to which they might be entitled because of the union. Perhaps a gay couple might dissolve their union easier than an opposite sex couple might, but is that really a detriment to them? There are many benefits to creating the legal distinction and nothing detrimental. Under your structure, there are many detriments to society which I have already outlined in past posts.
DavidM: The concept that rights exist which are not enumerated in the Constitution is a valid one. […] Where have the courts identified gay marriage as a fundamental right?
You seem to miss your own point. The Courts do not have to recognize gay marriage as a fundamental right in order for it to BE a fundamental right. In fact, no commentary by the court is needed at all.
In the case at hand (Windsor) the Court found for the gay-marriage plaintiff on the grounds the State recognized the marriage so the government must likewise. That does not rule out the potential for gay marriage to be a fundamental right; and in fact supports it: NOT being a fundamental right might have supported the government’s position they could regulate it as they see fit.
But this court “conservatively” found a lesser point to hang their decision on; that the federal government had the obligation to abide by the State’s recognition of marriage.
As for courts that have mentioned or hang their hat on “reproduction” as justification for marriage, that is clearly and obviously immaterial window dressing since marriage is allowed for heterosexual couples that cannot reproduce and have no existing children to care for. That group includes sterile (or sterilized, intentionally or naturally or accidentally) men and women.
Whatever those same courts and writers would use to justify those heterosexual marriages applies equally to homosexual marriages, unless they engage in your irrational and unprovable argle bargle of there being something mystically special about males marrying females in the complete absence of any possibility of reproduction.
randyjet: I think that most rational people would agree that China had a huge population explosion problem. So they acted to restrict severely procreation.
No, China was concerned their population explosion would exhaust their resources and thereby threaten their plans for a political future. China is a dictatorship and put the interests of their ruling elite ahead of the interests of its populace, by restricting their freedom to reproduce. China wanted to accelerate their transition from a rural farming society to a capitalist dictatorship and world economic power. Population reduction was a means of trading a large future pool of uneducated, untrained farmers and laborers for the smaller but better educated and trained future pool of graduates and knowledge workers they needed for their Capitalist dreams. Because more resources would be focused upon that smaller pool without siblings (and in the next generation, without aunts or uncles or cousins; since the parents of the next generation would have no siblings). Instead of diluting family property and fortunes, their policy concentrates and combines them.
The Chinese government oppressed its people out of simple greed and a hunger for power, and it is working as planned.
I agree David….
You’re really trying to jerk our chains…..
Arthur: Of course, if you think that stare decisis is a bad thing, and tradition, and laws mean nothing, THEN you can support such an outlandish ruling.
There is no need to hyper-inflate my position. Following precedent is not a “bad thing,” but treating it as infallible is a bad thing; by those lights we’d still have slavery in this country.
Tradition is not a “bad thing,” but it is not infallible either. Some traditions are comforting to people; that is fine, but traditions that create comfort by oppressing others are indeed a “bad thing.” Like the “traditions” of slavery, sexism, racism, and homosexual devaluation.
It isn’t that laws mean nothing, but I do believe laws can be mistaken; which is why we have the word “repeal” in our language. Lawmakers, from city council to the Supreme Court and all in-between, are not infallible. They can be victims of their culture and the circumstances of their birth environment; people raised with sexism and never living in an environment where sexism wasn’t accepted as the way of the world by the vast majority of both men and women see their sexism as a self-evident given, and let that illogical discrimination pervade their thinking.
The 1875 court did not deny women the right to vote on logic, those old farts just took it on faith (without reasoning) women could not have any right to vote. They were sexist. And like most irrational beliefs, they reasoned backward from their conclusion (women do not have the right to vote) to a ridiculous excuse (that must mean the Constitution does not ensure the right to vote to all citizens). They then trot out this maxim as if it came first and led them to their conclusion (when the opposite was true).
When the cultural attitude toward women had changed in 44 years, when the old farts were dead and the children of 1875 were in control of the government and were the majority of voters, then reason finally overrode ingrained prejudice (sexism) and prevailed.
Not all laws, all decisions, all traditions are good things. The “bad thing” is the oppression of, coercion of, or predation upon other people, that are not themselves oppressing, coercing or predating upon others. When the “bad thing” is done by law, the law is a bad thing. When the law allows the “bad thing,” then we need new law or different law to punish it.