Moderated Thread: Gay Marriage.

[Scot C. Trypal]

Yipes! Race can be hidden, in many cases, and so, certain minorities can escape discrimination that way. But why should the have to?

You’ll get no argument from me :). I outed myself pages and pages ago, but no one would blame anyone for not trudging through it all.

You’re right, a person’s genetic heritage can be hidden. There was a whole bunch of legal maneuvering which tried to determine what, if not appearance, made a person one race or another (well, mainly Caucasian). Was it one half, one quarter, or even one drop of non-white blood, which disqualified a person? It was silly and cruel and effected folks who could pass as part of the tribe in power.

It should also be noted that hermaphrodites currently face the same sort of unjust problems with marriage laws as a one half, one quarter, or even a one drop of non-white blood human would face when these laws against interracial marriage were in effect.

I was merely trying to point out that the issues gays and lesbians face, though similar in many areas, are different from a racial minority in others. One of these differences is that most gays and lesbian can hide that they are different in their instinct, while most minorities have a hard time hiding that they are different in their skin color. As a minority group, this has given gays and lesbians an ability to blend in with the majority which most of the subjugated races lack (I wonder if folks were sensitive to Irish physical differences when they were a snubbed minority in the US?).

Is it a pain in the neck, and dehumanizing to “blend in with the majority”? Yes. I spent nearly a year under a boss whose idea of small talk was reflecting on the future fiery torture of homosexuals. I became a pro at cautious pronoun use.

In short, finding legal similarity between the two situations can be useful, but I also wanted to acknowledge the truth in ceo_esq’s assertion that they are different in other ways.

[Christian]

Scot wrote:

This is an important question, and it’s one I’d hope every genetic donor (and fertility doctor) considers.

First, this is very similar to a question heterosexual couples face. You don’t control the other’s mind (no matter how hard you focus ). You don’t know for sure that you are bringing children into a stable home with a stable parent, and many just do it even before they are committed enough to be married, and many children are born on accident.

Fortunately, accidental births can’t happen with fertility treatments . Furthermore, if we are concerned, we can now test the infertile couple, where, for concern for freedom, we could not test the fertile couple.

This was an important question for me. I said I agreed once. Here, the family already had a child, are model parents, wonderful people, and a time-tested couple. But we’d been asked before and immediately expressed disinterest, for various reasons. True, it is a responsibility to take a part in the creation of a human life and I, personally, wasn’t comfortable to do it under those conditions.

This is not the responsibility of a father though; once those gametes are gone; they are gone. You are not a father. It is the same responsibility a fertility doctor has when he gives a couple drugs which will make them pregnant, the same that an adoption agency has. When the rights of people other than the infertile couple are in the mix, we can make sure good homes are found.

In that one case, I know, by our friendship with that family, that I would have no regrets. But what if I was wrong? Sure, I’d feel bad, just like an adoption agency, or a doctor should feel bad if they make a mistake and helped place a child in something like an abusive family. But I’d not feel responsible, unless I didn’t do what I could to make sure I was helping create a loving family, a family which would make my involvement more than worth my trouble.

Yes, we do have a fundamental disagreement here. To me, I am 100% responsible of thing go bad. I had 100% choice of bring this new life to earth (a doctor or an adoption agency had no such choice).

And this again goes to the heart of fundamental rights. It is important that we, as a society, promote this family unit because that 100% responsibility will further the common good.

I'm glad others have joined, they are enriching the discussion.

[Christian]

And, is ceo_esq a lawyer?

[Darat]

Originally posted by Christian
And, is ceo_esq a lawyer?

He claims to be, he certainly knows a lot of good long words, however I've found his posts to be of a quality I wouldn't normally associate with a lawyer ;)

[Christian]

Originally posted by Darat


He claims to be, he certainly knows a lot of good long words, however I've found his posts to be of a quality I wouldn't normally associate with a lawyer ;)

I see. I claim to be a third year law student and my posts I normally would not associate with a third year law student. ;)

[KAW143]

Originally posted by Christian


I had 100% choice of bring this new life to earth

I won't try to hijack the thread completely, but I must take exception to this 100% choice re. childbirth. From a purely religious stance, no one has a choice in bringing life into this world except god. Humans might take steps to avoid such, steps that some religions have banned completely, but if god wishes a child to be born, he will. Take the story of Jesus, for example. That birth required no biological contact whatsoever, yet it happened.

Further, choice is but one of many factors when considering anything that happens. Outside events beyond choice often play a part in life. Therefore, I fail to see how this statement backs your statements. . .

[Christian]

Originally posted by KAW143


I won't try to hijack the thread completely, but I must take exception to this 100% choice re. childbirth. From a purely religious stance, no one has a choice in bringing life into this world except god. Humans might take steps to avoid such, steps that some religions have banned completely, but if god wishes a child to be born, he will. Take the story of Jesus, for example. That birth required no biological contact whatsoever, yet it happened.

Further, choice is but one of many factors when considering anything that happens. Outside events beyond choice often play a part in life. Therefore, I fail to see how this statement backs your statements. . .

You, know phylosophically I agree with you.

But....

I have the illusion I have free will, and on that illusion I believe that regarding fathering children, I am 100% responsible. I back this up by stating that all the children I have, I wanted to have.

I also believe that most men can could be able (if the chose to do so) to say this.

[Scot C. Trypal]

To me, I am 100% responsible of thing go bad. I had 100% choice of bring this new life to earth (a doctor or an adoption agency had no such choice).

If you’re only looking at the unique donated sequence of A, G, T and C’s, then sure. A specific donor is 100% needed to make a specific genetic pattern in a child of an infertile couple. But any donor can step in and help that couple become parents.

Still, if the pattern of nucleotides is what you are focusing on, the issue remains for doctors. That doctor who gave the drugs or that doctor, who manually placed that one particular sperm into that one particular egg, also had a 100% choice of bringing that one particular life to earth. If he did not act as and when he did, that child would not have existed. Another doctor, at best, could produce a genetic sibling to that lost child, similar to another donor helping the same couple and creating a half-sibling.

It is important that we, as a society, promote this family unit because that 100% responsibility will further the common good.

Yes, we do have a difference here. To me, that 100% responsibility belongs to the parents, the people who started the life and intended to raise the child; that is what’s best for the children.

You, know phylosophically I agree with you.

But....

I have the illusion I have free will, and on that illusion I believe that regarding fathering children, I am 100% responsible. I back this up by stating that all the children I have, I wanted to have.

I also believe that most men can could be able (if the chose to do so) to say this.

I’ve been thinking about starting another thread on this topic. I find it very interesting. Does this mean you think God preplanned to send children to be raised in lesbian families when they use DI? Did He pre-create souls specifically for that purpose? That may be way off topic here.

[KAW143]

Originally posted by Scot C. Trypal


I’ve been thinking about starting another thread on this topic. I find it very interesting. Does this mean you think God preplanned to send children to be raised in lesbian families when they use DI? Did He pre-create souls specifically for that purpose? That may be way off topic here.

Well, to be fair, I did say that this was somewhat of a hijack; and, as such, the plane was flown to the exact destination I had in mind. Yes, this might be appropriate for another thread; yet, this "for the children" concern has been central to Christian's debate, yet if find it difficult to ascertain why. Sociologists find that a biological mother/father relationship is best for children, I understand that. Statistics, however, suggest that the overwhelming majority of children do not enjoy this arrangement. Since the overwhelming majority of parents are heterosexual, I should think that the thing keeping kids from having the vaunted mother/father relationship would be the majority of parents -- ie. heterosexuals, not homosexuals.

Also, if it is god who decides who shall and shall not be parents, I fail to see how denying gay couples the rights necessary to raise their god-given children in a manner commensurate with thier herterosexual counterparts benefits the children whose rights Christian is venerating. Surely denying them these things only serves to harm. . . . ?

[ceo_esq]

Originally posted by Silicon
But it is an extension of the historical subordination of gays as a class. I do recognize that they aren't treated as a legally protected class. But they ARE treated as legally protected individuals.

So the question arises, does the 14th Amendment protect classes, or individuals? Do I have equal protection only if I belong to a historically denegrated class?That heterosexual-exclusive marriage laws have a disparate impact on homosexuals is probably not worth disputing (although it's worth bearing in mind again that they are facially neutral even with respect to homosexuals as a class, in that no one is legally prevented by reason of his or her sexual orientation from marrying a member of the opposite sex). But this is a different point from the one that I was addressing; I was observing that heterosexual-exclusive marriage laws do not constitute gender discrimination.

It seems somewhat academic to contemplate whether the Fourteenth Amendment protects classes or individuals. The Fourteenth Amendment, among several other things, protects persons (whether individuals or legal entities) from state discrimination against them vis-à-vis other similarly situated persons, but the set of all persons meeting the criterion for differentiation is said to constitute a class. Of course, there are only a handful of criteria that could generate the type of legally "suspect classification" of individuals such that an invalidation would likely result (very little scrutiny is applied to other differentiations, so the legislature nearly always carries the day) and as you've pointed out, sexual orientation is not one of them. However, if the discriminatory law is arguably completely off-the-wall (as the Supreme Court concluded in Romer v. Evans) even sexual orientation can be an impermissible category of discrimination under the Fourteenth Amendment.
Originally posted by Silicon
Interesting. Is this the current status of "equal protection"? Equal, as in, a higher standard for race than sex?

If so, I am laboring under the misassumption that equal protection had expanded to the individual since the 1960's.It's true: modern equal protection jurisprudence does not require laws to be as undiscriminating toward sex as they are toward race, and it doesn't take a lawyer to see that this is so. The permissibility of restrooms segregated by sex and the impermissibility of restrooms segregated by race, as just one example among myriad others, should indicate a contrast in the applicable legal standards.

However, this isn’t even especially relevant since, as I pointed out, sex discrimination and sexual orientation discrimination are not the same thing, and the latter is not an instance of the former.

As to your last observation, equal protection has always attached to individuals on the basis I outlined earlier. Apart from that, I’m not sure what you mean by "expanded to the individual" in this context.
Originally posted by Silicon
Is it not the case that, for example in the Texas sodomy case, the main problem was equal protection? That the acts would have been legal if one or the other persons was female?No, in that case (Lawrence v. Texas), the Supreme Court thought the problem was the substantive component of the Due Process Clause of the Fourteenth Amendment, not the Equal Protection Clause. On the other hand, if I recall correctly, O'Connor (concurring in the judgment only) opined that the case should have been decided on equal protection grounds instead.
Originally posted by Silicon
Can there be a law against interfaith marriage? Would that not fail a test of the 14th Amendment, since only race is the subject of 14?No, an anti-interfaith marriage law would violate the Equal Protection Clause (and probably also constitute an excessive entanglement of government and religion in violation of the provisions of the First Amendment). I didn't say that race is the only subject of the Equal Protection Clause. Almost any conceptual classification is covered (including sexual orientation), it's just that only a few are deemed to merit a high level of protection.
Originally posted by Scot C. Trypal
On the social front, with the misogyny of the past, two men in marriage would be seen as feminizing at least on of the men (a very repulsive notion and one which undermines male superiority). On the other hand, two women in marriage would be seen as a union which tries to elevate a woman to an equal status with a man (this too undermines male superiority; a man in marriage is not needed for that particular woman).

But once a woman is seen as legally equal to a man, once that has become part of our ethics, it becomes problematic to make such a life limiting distinction between a union based on legal gender. If they are truly legally equal, then why not legally interchangeable? It seems to me, taking the government’s gender discrimination out of the recognition of such a contract as marriage, will be the last significant stand of gender inequality.

Not that it carries much weight with the general public , but you’d find many professors of woman’s studies see the gay rights movement, particularly in the marriage debate, in the same way. They see it as a way to correct the problems woman have historically faced in marriage.I'm not sure whether I agree with all this, but in terms of allocating an unfair burden to women it would seem to have more application to female homosexual pairings than male ones. I'd have thought that the ideal framework in which to consider sexual orientation discrimination in the marriage context would be one which considers how the burden is allocated regardless of gender.

At any rate, despite the frequency with which the gender discrimination argument is raised by same-sex marriage proponents (and just as frequently shot down by judges and lawyers on both sides of the issue), I don't find it juridically compelling. There are better arguments. Ultimately, though, my position is this: there's obviously nothing in the Constitution that prohibits same-sex marriage, but there's nothing in it that would necessarily require states to make same-sex marriage available, either. This is why I suspect that nationwide uniformity of laws on the subject would require a further constitutional amendment.
Originally posted by Scot C. Trypal
How so? It seems in any other legal perspective, gender-based classifications would be seen as inherently suspect. If this were to happen in any other government policy regarding the recognition of and accommodation for a contract, I’d bet there would be a huge outcry. It’s just that this particular instance is only a problem for about 3% of the population.Perhaps I should have worded that statement more carefully. Both racial and sexual differentiations are considered inherently suspect, and are subject to strict judicial scrutiny. However, between the two of them, racial classifications are significantly less likely to meet the legal standards for justification. Consider, for a moment, that there's no Brown v. Board of Education for gender discrimination, and you’ll quickly grasp the disparity: the Supreme Court has never unequivocally found that "separate-but-equal" is inherently unequal where gender is concerned, unlike race. This explains, among other things, why a man generally still can't use the women's restroom. And this difference (between treatment of sex and treatment of race) shows up again and again in the anti-discrimination context.
Originally posted by KAW143
Thank you for your well-stated arguments, CEO, but allow me to ask a couple of clarifying questions. You state that discrimination against homosexuals is not the same as discrimination against women or racial minorties. Why, exactly, is this? Is it because homosexuality is percieved as a behaviour and not a set trait from birth? Modern psychology accepts that homosexuality is an inborn quality; it does not change. How is this, if true, any different from, say, being born into a racial minority? This seems central to the argument of gay amrriage: one side claims homosexuality is a behaviour and is therefore prohibitable; the other claims it is an indellible quality from birth. Granted, this question does require a rather broad assumption -- that being that current scientific thinking will eventually be proven correct -- but, if that assumption is valid, then does it not follow that Loving and various other findings would be perfectly applicable, being as they rules on cases of obvious genetic discrimination?When I indicated that that discrimination against homosexuals is not the same as discrimination against women or racial minorities, I was merely describing the current state of U.S. constitutional law. Whether sexual orientation deserves to be considered an inherently suspect classification on a par with color or gender is a bit beyond the scope of the remarks I intended to offer. I point out only that under the Constitution as we currently understand it, it's not treated the same. I would also add that I don't think the lens of genetics is the only one through which to look here, either. Obviously, not every inborn trait is the basis for an inherently suspect classification under the Constitution, and not every inherently suspect classification is determined by reference to an inborn trait.
Originally posted by Scot C. Trypal
If it is irrelevant that Greeks or Romans, being two thousand or more years removed from the argument, accepted something, then it is equally irrellevant that two- or three- thousand year old scriptures decried it.First, consider what I actually said: that classical Greek or Roman social and legal conventions are not especially relevant considerations except to the extent that certain of them have had an enduring influence on our society. Second, let's make clear what the word "relevant" means in the context of that post: it means relevant for the purposes of determining whether the "established definition" of marriage excludes homosexual unions.

I agree that Biblical conventions regarding marriage are not necessarily relevant in that context. If I thought they were relevant to determining the "established definition" of marriage, I probably would have cited the Bible instead of referring to dictionaries, legal manuals and state codes. However, it's worth noting that biblical views of whether marriage can exist between two people of the same sex have arguably had a more normative and persistent influence on the contemporary "established definition" of marriage than antique Greco-Roman views on the same subject, so they might be marginally more relevant to that limited inquiry. Not that they're closer to what's fair or right, but probably closer to telling us what's "established".

[Scot C. Trypal]

I thought this might be helpful. I’ll go over the ways by which the state (and church where they were the same) have defined legal marriage over history and cultures (I guess I should say: some are old, some are new, and some aren’t what US law has in it’s history, but many are):

(Much of this was found in “What is Marriage For” by E. J. Graff)

Slave--An odd disqualifier if encouraging reproduction is the only reason for marriage. Slave owners really need reproduction, but, here, marriage laws were also about seeing others as political equals.

Race--About the same reasons as above.

Mixed Race--Been there, the Loving case.

Current Legal Gender--Transgendered people have been able to marry another who has the same birth legal gender. This reminds me of a case I just read about where a Caucasian New Orleans man wanted to legally marry his lover, a black woman. To do it he took advantage of the “not one drop of blood” interracial marriage law and got a blood transfusion to become legally the same race. Don’t make me follow suite :)!

Birth Legal Gender--The one we are arguing now.

Occupation--some of the more menial occupations were not given marriage recognition by law.

In Apprenticeship--If you were in an apprenticeship a legal marriage was not possible.

In School--If you were in school a legal marriage was not possible.

Age--Anywhere from prepubescent children on up.

Age (Without Parental Consent)--It’s been as high as 30!

Parental Consent--Sometimes the legal definition of marriage hardly mentions the daughter at all, save as a sort of commodity. It was instead an agreement between a man and his future father in-law not between a man and a woman as some think of it now.

Employer’s Consent--Marriages affect economies, and, when individuals don’t think they have rights, this is what can happen.

Your Consent--You’d think this would be important but it was not required for a marriage for quite a while. The Catholic Church then made it the only requirement for a while (assuming male and female genders), and that made a mess of he-said she-said claims. They came back to State regulation, primarily after the Protestant reforms.

Family Relation--anything from brother and sister to 4th cousin incest taboos have been used and ignored by the definition of what constitutes a legal marriage. The control of this aspect of marriage has been a useful political tool. The early church for instance made the most strict incest taboos (4th cousins) as it broke up competing political power and spread its influence. The Jewish tribes, on the other hand, wanted to restrict incest but also restrict group resources from going to outsiders.

Nobility--Of course, it was a matter of political power, not individual choice or love.

Social Class--Again some of the lower classes just couldn’t have a legal marriage.

Economic Class--Kind of the same as above.

Dowry Size--Not too big, and not too small. Dowries actually seemed to give women more power, much more than they’d have in the 19th century. When women were given this power back again it started warnings that it would “abolish family in the old sense”. And they were right; it did.

Previous Children--1978 US Supreme Court case Zablock v. Redhail ruled deadbeat dads could not be banned from remarrying, saying the rule was a “serious intrusion into… freedom of choice in an area in which we have held such freedom to be fundamental”.

Previous Sex--A marriage after you had sex with another was sometimes considered polygamy and it would fly in the face of and invalidate a legal marriage.

Divorced--Check out this quote from Horace Greeley in The New York Times in the 1800’s: “There may be something better than marriage; but nothing is marriage but a solemn engagement to live in faith and love till death”. He went on to say you can read that very definition of marriage in the dictionary, and he wanted to “give their bantling a distinctive name, and not appropriate ours.” He wanted people who remarried after divorce to not be called “married”, but something else, as their unions did not fit the definition of “marriage”. By this definition of marriage, many of our politicians are not married, but are practicing a sort of lawless polygamy ;).

Clean Blood Tests--To watch for disease.

Status as a Felon--The US got rid of this one.

Incarceration--Got rid of this one too. These men were incarcerated, couldn’t support children, and no one would want them to have children. Still, in 1987, the US Supreme Court said they should have legal marriages as “inmate marriages, like others, are expressions of emotional support and public commitment”.

The following are the murky ones:
Using Contraception--I don’t see where this made it into law, but it did make it into church and many political opinions. Using contraception was, for some, against the very definition of marriage, akin to bestiality, but they lost that battle.

Biological Sex--I don’t see where this was ever a criteria; it always depended on if you were either legally male or female. Hermaphrodites, it seems, could always marry and were always at the whim of the legal gender they were assigned at birth.

Fertility--I don’t see where this was ever a requirement. The closest I can find was it was grounds for divorce, if one was wanted, and grounds for a Jewish man to take a second wife.

Sexual Orientation--It would have saved a lot of heterosexual women (and their children) a lot of pain if heterosexuality was a requirement for marriage but I can’t see where it ever was.

Now the Quantitative:
Plural Marriage--With the fluctuation in what the definition of a legal marriage is, found in all of the above, the rights need not be changed. Stuff like age, gender, race and so on, do not effect these rights. But with polygamy, it’s not just that things are more complicated (and they are wildly more complicated), it’s that the rights can’t be the same. They cannot have the same rights I’m asking for, or that my siblings have, by pure mathematics.

What’s funny is that, most of the reasons polygamy disappeared are the same reasons we are now debating same-sex marriage. Polygamy was seen as a natural and traditional marriage because men had been seen as most important and, by their biology, can impregnate many women at once. But when women achieved more equal rights (on the same wave of legal blindness to gender gays and lesbians are now trying to surf, reasonably or not), most all wanted no part of polygamy. Even when Joseph Smith tried to take us back to a more patriarchal time and made polygamy legal in his community and a religious requirement sent straight from God, only about 20% practiced it.

A marriage of 2 can have equal rights between members. In a marriage of 5, for example, the rights get divvied up. Four wives cannot all have the same claim to decide burial arrangements or medical decisions for their husband; someone must win. They do not all have the same claim to his property at death; I’d suppose, a complicated method accounting for time married and children born would have to be devised. They do not have the same claim to be parents to his children; are the women even related to each other in some way? It’s just not the same rights as what marriage currently gives; something radically different would have to be constructed.

Still, for traditional polygamy, giving these women equality in marriage rights is something I think the law should do. It could actually hurt and discourage polygamy. I’d be surprised, if they’d be allowed, on religious grounds, by their husbands to take these rights, as what we call a marriage now would emasculate the polygamist husband, and it’s no surprise some polygamists don’t even take one legal marriage (a luxury homosexuals don’t have, if they want to marry someone they love).

Anyway, I just wanted to show that this definition of legal marriage changes in time, and some of these changes were done very recently in US law. While some cultures have included homosexual unions in these laws, ceo_esq is certainly right to say it is not what our law is currently based upon.

I think though, our law gives marriage rights for the same reasons homosexual couples should have them, based on our history: to recognize the work done in the home and the cooperative means of gaining property, to create justice in our unions when they break up, to acknowledge the new kin relationship that comes with a union, to facilitate the ways in which we take care of each other, to give equal rights to our children, and so on. I think it is time for a change in this legal definition.

One last thing, ceo_esq wrote:
I was observing that heterosexual-exclusive marriage laws do not constitute gender discrimination.

This is what I still don’t get. What am I missing?

You go to get a marriage license and they look at your legal gender (and age) and by that decide if you can marry. True, this decision harms only a minority of men and women, but, by the very definition of the word “discriminate”, they are discriminating on gender who can enter into this arrangement with this particular person. A person can marry me there is an F is on their driver’s license (transsexuals even), but not if an M is there. Why is that not gender discrimination?

[KAW143]

I think that I have finally gotten what it is that CEO is trying to say. Far from commenting on the validity of one argument or another, he is referring to the complications of constitutional law, and the problems with applying such arguments as we have been covering to this specific issue. This, if correct, opens up an entirely different can of worms than the one we have been sifting through, however. Perhaps I am uninformed, but I believe it goes without saying that the Court, and by extension, the constitution has nothing to say on this particular subject. Attempting to ascertain the test by which the Court can decide this issue is akin to discerning the number of angels that can dance on the head of a pin. There is simply no way to tell, since the Court has not yet heard it.

I think that Scot and I have been trying to posit that this question involves a related but heretofore unenumerated type of general discrimination: it may not be racial, it may not be gender-based, but it is no less tangible a kind of discrimination. That there is no applicable test in Constitutional law is unsurprising; unless I am mistaken there was no Constitutional stance on slavery until the Dredd Scott decision. To come to a Constitutional understanding, a specific case will need to be heard by the Court - or else an amendment must be passed. Otherwise, the Constitution will remain silent. But the way by which this can or might be settled by the courts is, to my mind, somewhat ancillary, here. At most direct issue is the question of whether or not this is truly an issue of discrimination on a basic, humanistic level and, if so why. Frankly, it is obvious that this is not a categorically defined form of Constitutionally decided discrimination. If it were, we wouldn't need to discuss it in the first place. . . .

If I have over- or miss-stated anyone's case, I sincerely apologize. This is just my interpretation of what I have, thus far, read. . .

[csense]

I have some family issues that require my immediate attention, so I'll be unable to continue my participation at present...

[Loki]

Just wanted to add a small point that may have little or no bearing on the overall conversation!

The topic of marraige can be viewed from 3 perspectives :

1. What it was in the past

2. What it is now

3. What it should ultimately be.

It seems to me that Christian is arguing two different ways, somewhat intertwined

A. From Precedence : Because it's worked in the past, it'll work in the future too.

B. From Principle : This is an outcome society needs, and this process will provide that outcome.

It's the second, "Principle", that I feel is the more relevant.

All I'd like to add is my personal perspective. Marriage to me was intended to achieve one, simple, clear outcome - a public declaration to my wife-to-be and our friends and family that I was commited to a long term (and anticipating a life-long) relationship, and that she returned the commitment. Any legal, economic and child-rearing effects of this were completely secondary, and in no way played a part in my decision.

That's what I'd like to see marriage become, if it isn't already - a statement between people indicating a commitment to an 'enduring' relationship. How many people, and what sex they are, is a detail that doesn't matter all that much to me. What that commitment means in legal, economic and child-bearing terms is a whole other debate IMO, and one that follows once the above principle is accepted.

And a final comment - now that I'm a parent, and have at least some idea of the roles and responsibilities that it truly involves, I'm firmly of the opinion that parenthood is a privilege that should be earned, not an inherent right of every human. Of course, I can see no practical way of enforcing such a system, so I guess we're just left letting any "old a*hole be a parent".

[Christian]

Originally posted by Loki

All I'd like to add is my personal perspective. Marriage to me was intended to achieve one, simple, clear outcome - a public declaration to my wife-to-be and our friends and family that I was commited to a long term (and anticipating a life-long) relationship, and that she returned the commitment. Any legal, economic and child-rearing effects of this were completely secondary, and in no way played a part in my decision.

That's what I'd like to see marriage become, if it isn't already - a statement between people indicating a commitment to an 'enduring' relationship. How many people, and what sex they are, is a detail that doesn't matter all that much to me. What that commitment means in legal, economic and child-bearing terms is a whole other debate IMO, and one that follows once the above principle is accepted.


You don't need a legal institution for this. Anyone can declare this and act accordingly.


And a final comment - now that I'm a parent, and have at least some idea of the roles and responsibilities that it truly involves, I'm firmly of the opinion that parenthood is a privilege that should be earned, not an inherent right of every human. Of course, I can see no practical way of enforcing such a system, so I guess we're just left letting any "old a*hole be a parent".

And you can now have evidence that I stated (hold that) the most atheists are elitist as well.

[Loki]

Christian,

You don't need a legal institution for this. Anyone can declare this and act accordingly.
You're quite right - that's my point. I see no inherent need to "marriage" to have legal ramifications. It's a social statement. IF it has, or should have, legal meaning as well, that comes as a another debate apart from the primary discussion.

And you can now have evidence that I stated (hold that) the most atheists are elitist as well.
Not sure I can read this, christian. I think you're saying that you find my assertion that "parenthood should in theorybe limited to those who have demonstrated some base level of ability to deal with it" as being an example of elitist atheist thinking?

Well, I'm an atheist, and it is my thinking, and I guess we could argue about whether it is "elitist" to ask people to show some ability to perform a task they wish to perform. I'd point out that I didn't indicate thet (a) only atheists would pass any such test or (b) that I myself would necessarily pass such a test. But perhaps we should let this little side issue go?

[Christian]

Originally posted by Loki

You're quite right - that's my point. I see no inherent need to "marriage" to have legal ramifications. It's a social statement. IF it has, or should have, legal meaning as well, that comes as a another debate apart from the primary discussion.

It used to be that way. It didn't work. Before marriage was part of Civil Codes, now in most countries it is a code in itself (Family Code)


Not sure I can read this, christian. I think you're saying that you find my assertion that "parenthood should in theorybe limited to those who have demonstrated some base level of ability to deal with it" as being an example of elitist atheist thinking?

Well, I'm an atheist, and it is my thinking, and I guess we could argue about whether it is "elitist" to ask people to show some ability to perform a task they wish to perform. I'd point out that I didn't indicate thet (a) only atheists would pass any such test or (b) that I myself would necessarily pass such a test. But perhaps we should let this little side issue go?

But it is not a side issue at all. It is the heart of the issue. All along I have been saying that a mother has a fundamental right to her child.

Do you know what that means, a fundamental right? Let me give you an example of another fundamental right= life. Should we ask people to show some ability to perform a task that shows they are worthy of living? And a priori?

If you want to argue it shouldn't be a fundamental right, fine. There is no way we could ever agree. To me, it is self-evident. Like a US Declaration says, "we find these truths to be self-evident."

[Loki]

Christian,

All along I have been saying that a mother has a fundamental right to her child.
...
If you want to argue it shouldn't be a fundamental right, fine. There is no way we could ever agree.
Yes, we'll disagree. Humans should NOT have the fundamental right to procreate. I can think of no way to enforcing such a system, however.

[Kimpatsu]

Originally posted by ceo_esq
Unfortunately, it's hard to see how any of these sources actually provides an "established definition".

The social and legal conventions of classical antiquity would appear to have little contemporary relevance except for the ones having exerted an enduring influence on our culture, and homosexual marriage (if indeed it ever fell within the antique definition of marriage) is not one of those.
So really what you're doing is cherry-picking definitions arbitrarily to support your own anti-gay standpoint.

[Earthborn]

Originally posted by Scot C. Trypal
Biological Sex--I don’t see where this was ever a criteria; it always depended on if you were either legally male or female.
Actually, that's not true. Legal gender only ever existed in societies that registered people's genders, and there have been a lot of societies in the past that didn't register people at all in any meaningful way. Marriage depended often on biological sex, which meant that a marriage with someone who turned out not the correct sex could be nullified. Biological sex was often defined as fertility: a barren woman was not considered a real woman, and an impotent man not really a man.Hermaphrodites, it seems, could always marry and were always at the whim of the legal gender they were assigned at birth.Certainly not. In Matthew 19:12, Jesus says this:Originally uttered by Jesus, according to the New American Standard bible
For there are eunuchs who were born that way from their mother's womb; and there are eunuchs who were made eunuchs by men; and there are also eunuchs who made themselves eunuchs for the sake of the kingdom of heaven. He who is able to accept this, let him accept it.Now, when he speaks about 'eunuchs who we were born that way from their mother's womb' it is hard not to think he meant what we would now call 'male pseudo-hermaphrodites' (although there is certainly a lot of theological debate about who the 'eunuchs' are).

I have a Catholic annotated New Testament in Dutch, and it uses the 'unwedables' instead of eunuchs. Whether this is a fair translation, I don't know. But it clearly shows that there have been times in history where marriage was defined as being between a biological man, and a biological woman and anyone who fell short of the definition for that was not allowed to marry.

[Scot C. Trypal]

Marriage depended often on biological sex, which meant that a marriage with someone who turned out not the correct sex could be nullified.

Here, I was thinking of hermaphrodites who had exterior anatomically which appeared to be one sex, but were genetically the other or in-between. Our ancestors couldn’t find the correct sex in these cases, and so I couldn’t see how they could make biological sex a requirement. The requirement seems more of a “if it looks like a duck and sounds like a duck, then it is a duck” thing.

Now, when he speaks about 'eunuchs who we were born that way from their mother's womb' it is hard not to think he meant what we would now call 'male pseudo-hermaphrodites' (although there is certainly a lot of theological debate about who the 'eunuchs' are).

Sure. I had forgot all about that passage.

But it clearly shows that there have been times in history where marriage was defined as being between a biological man, and a biological woman and anyone who fell short of the definition for that was not allowed to marry.

My thinking was that they could not determine biological sex for hermaphrodites and they’d just give them the gender they looked most like. Hermaphrodites could marry, if they looked enough like one sex or the other, but I’m sure you’re right that some were too obviously different to be “wedable”.

Regarding fertility, I find, at least the early Christian Church thought it was absolutely no reason to divorce, and I haven’t found where it would keep a person from entering a marriage (particularly men who seemed to simply blame females for their infertility). Like I said, I’ve only found it as a reason to divorce and a reason to take another wife. Is there another example?

[ceo_esq]

Originally posted by Kimpatsu

So really what you're doing is cherry-picking definitions arbitrarily to support your own anti-gay standpoint. No, what I was trying to do - in the gentlest possible manner - was point out that you are cherry-picking definitions arbitrarily to support your standpoint. Since you appear to have missed the lesson, I will now endeavor to demonstrate this to you in a more pointed manner.

Recall how our exchange started; you stated the following to csense:Originally posted by Kimpatsu
We're not offering a new definition; we're offering the established definition: A legal union between two consenting adults. It's you who's trying to redefine marriage as being between a man and a woman, where no such definition exists.In the foregoing statement you advanced two related propositions: (1) the established definition of marriage does not contemplate its existence solely between a man and a woman, and (2) moreover, there exists no definition of marriage contemplating its existence solely between a man and a woman.

I respectfully pointed out to you that the definitions of marriage proposed by the Oxford English Dictionary, Black's Law Dictionary, and the California Family Code (since you'd specifically referred earlier to California) all posit marriage as existing solely between a man and a woman. Even one of these counterexamples, of course, was sufficient to disprove your second proposition. My examples were carefully chosen, however, in order to suggest to you the dubious validity of your first proposition as well. Allow me to explain next why the examples I offered were not arbitrary and, conversely, why the ones you offered in response were arbitrary.

When queried as to which sources led you to conclude that the "established definition" of marriage does not contemplate a union exclusively between a man and a woman, you replied as follows:Originally posted by Kimpatsu
Ancient Greece and Rome. The Wiccan creed. Justice.
Take your pick.Perhaps we disagree on the definition of the term established definition. A quick online consultation here (http://dictionary.reference.com/search?q=established) suggests that an "established definition" of marriage is one which is "settled in a secure position", "recognized and accepted", "in force", "stable and firm", or "conforming with accepted standards".

With this in mind, do you understand why (1) the leading general-purpose English dictionary, (2) the leading U.S. legal dictionary, and (3) the marriage statute currently in force in the most populous U.S. state are, especially when taken together, fairly likely to yield an accurate picture of the "established definition" of marriage in the United States?

By the same token, do you understand why - even taking the accuracy of your examples for granted - (1) ancient and largely discontinued Greek and Roman social conventions, (2) the theological tenets of a recent religion whose adherents in the United States constitute far less than 1% of the population, and (3) a question-begging invocation of "Justice" are, in the aggregate, relatively unlikely to furnish a definition of marriage which is "settled in a secure position", "recognized and accepted", "in force", "stable and firm", or "conforming with accepted standards"?

In short, my examples were not chosen simply because they agree that the definition of marriage is heterosexual (although they do), but because by their very nature (dictionaries, laws) they are logical candidates to help us ascertain the "established definition" of marriage. On what earthly basis do you criticize them as arbitrary?

In contrast, your examples - exhibiting so little concrete connection to the prevailing social, legal and linguistic conventions of the society - can only have been chosen for the alleged absence of a heterosexual component in their marital definitions. You're the one "cherry-picking definitions arbitrarily", and on the subject of same-sex marriage, your interpretation of what's "relevant" or "established" appears to be largely a result-driven fantasy.

Your suggestion that my viewpoints are "anti-gay" is, moreover, ludicrous. If I've criticized weaknesses in some of the arguments here (especially legal ones) in favor of same-sex marriage, it's not because I oppose same-sex marriage - it's because those particular arguments are weak, and weak arguments shouldn't prosper. I am, in fact, entirely amenable to the notion of same-sex marriage. The difference is, I'm under no illusions about the fact that (1) the established definition of marriage is incompatible with same-sex marriage, (2) the U.S. Constitution and laws offer no applicable guarantees, and (3) securing nationwide matrimonial rights for gays and lesbians will require fundamental changes to all of these things.

[Loki]

ceo_esq,

I've said it before, but it deserves repeating ... You're good!

[Kimpatsu]

Originally posted by ceo_esq
No, what I was trying to do - in the gentlest possible manner - was point out that you are cherry-picking definitions arbitrarily to support your standpoint. Since you appear to have missed the lesson, I will now endeavor to demonstrate this to you in a more pointed manner.
Not at all; I was pointing out that the definition of marriage has always traditionallyt included more than "one man, one woman". It also includes polygamy in the Solomon Islands to this day. So where is your cherry-picking definition coming from?
Originally posted by ceo_esq
Recall how our exchange started; you stated the following to csense:In the foregoing statement you advanced two related propositions: (1) the established definition of marriage does not contemplate its existence solely between a man and a woman, and (2) moreover, there exists no definition of marriage contemplating its existence solely between a man and a woman.
No, I said there is no correct defintion of marriage that says marriage is solely between a man and a woman. Any such definition is self-evidently arbitrary, for it ignores marriage as defined in Ancient Greece, Ancient Rome, the modern Soloman Islands, many African tribes, Ancient China, the Mormons...
Originally posted by ceo_esq
I respectfully pointed out to you that the definitions of marriage proposed by the Oxford English Dictionary, Black's Law Dictionary, and the California Family Code (since you'd specifically referred earlier to California) all posit marriage as existing solely between a man and a woman. Even one of these counterexamples, of course, was sufficient to disprove your second proposition. My examples were carefully chosen, however, in order to suggest to you the dubious validity of your first proposition as well. Allow me to explain next why the examples I offered were not arbitrary and, conversely, why the ones you offered in response were arbitrary.
All this means is that the legal code of the small piece of land who happen by accident to inhabit at this moment of time and space arbitrarily narrows the defintion of marriage according to a set of species arguments based upon Xpian-derived homophobia. By the same argument, you must, to be consistent, also approve slavery using its Biblical justification, and oppose female equality for the same reason.
Of course, if you really want to use American law as the basis for your argument, you must then also consider the foloowing:
1) Loving vs. Virginina, 1967. The U.S. Supreme Court ruled that marriage is a basic, civil right, with no reference to gender or sexuality.
2) The uhhh... U.S. Constitution, in the so-called "full faith and credit clause,which basically says that if one state supports it, then all states must, even if they don't provide for it.
Originally posted by ceo_esq
When queried as to which sources led you to conclude that the "established definition" of marriage does not contemplate a union exclusively between a man and a woman, you replied as follows:Perhaps we disagree on the definition of the term established definition. A quick online consultation here (http://dictionary.reference.com/search?q=established) suggests that an "established definition" of marriage is one which is "settled in a secure position", "recognized and accepted", "in force", "stable and firm", or "conforming with accepted standards".
With this in mind, do you understand why (1) the leading general-purpose English dictionary, (2) the leading U.S. legal dictionary, and (3) the marriage statute currently in force in the most populous U.S. state are, especially when taken together, fairly likely to yield an accurate picture of the "established definition" of marriage in the United States?
(2) and (3) don't count, as demonstrated above, and in repsonse to (1) I ask, do YOU understand anthropology, in which marriage can take many forms, including polyandry, polygamy, gay mnarriage (which, as I said, has a better historical precedent than one man, one woman), or even basic civil rights?
Originally posted by ceo_esq
By the same token, do you understand why - even taking the accuracy of your examples for granted - (1) ancient and largely discontinued Greek and Roman social conventions, (2) the theological tenets of a recent religion whose adherents in the United States constitute far less than 1% of the population, and (3) a question-begging invocation of "Justice" are, in the aggregate, relatively unlikely to furnish a definition of marriage which is "settled in a secure position", "recognized and accepted", "in force", "stable and firm", or "conforming with accepted standards"?
In short, my examples were not chosen simply because they agree that the definition of marriage is heterosexual (although they do), but because by their very nature (dictionaries, laws) they are logical candidates to help us ascertain the "established definition" of marriage. On what earthly basis do you criticize them as arbitrary?

In contrast, your examples - exhibiting so little concrete connection to the prevailing social, legal and linguistic conventions of the society - can only have been chosen for the alleged absence of a heterosexual component in their marital definitions. You're the one "cherry-picking definitions arbitrarily", and on the subject of same-sex marriage, your interpretation of what's "relevant" or "established" appears to be largely a result-driven fantasy.
Your suggestion that my viewpoints are "anti-gay" is, moreover, ludicrous. If I've criticized weaknesses in some of the arguments here (especially legal ones) in favor of same-sex marriage, it's not because I oppose same-sex marriage - it's because those particular arguments are weak, and weak arguments shouldn't prosper. I am, in fact, entirely amenable to the notion of same-sex marriage. The difference is, I'm under no illusions about the fact that (1) the established definition of marriage is incompatible with same-sex marriage, (2) the U.S. Constitution and laws offer no applicable guarantees, and (3) securing nationwide matrimonial rights for gays and lesbians will require fundamental changes to all of these things.
So, what you're really arguing is that the US Supreme Court was wrong to strike down segregation? For after all, that, too, was enshrined as law until justice won out.
Bear in mind also that this argument is not limited to the USA. Canada, The Netherlands, and France have also all decided to allow same-sex marriage. This means that, quid pro quo, the USA will have to do so as well.
Your anti-gay bigotry may keep you warm at night, but the bottom line here is that we are not the servants of the law; the law is our servant, in the quest to bring about a proper and just world. The law is an organic thing, which constantly grows and improves as society evolves, amtires, and thus grows more tolerant. Your conservative argument--"thus it has always been, so thus it must remain"--is the argument used by those who opposed the end of racial segregation. To be consistent, you must either agree with both forms of segregation, or neither. Of course, like the law, that would require maturation.
And always remember: sleeping with someone of the same sex would keep you just as warm as the anti-gay rights fire you currently nurture in your belly. Gay marriage was always accepted until recently, owing to ridiculous relgiious tenets. Yo ucannot have it both ways; wither embrace everything the New Testament teaches, including a right to slavery and the subordination of women (and that the world shoul have ended 2,000 years ago), or accept that it's a useless basis for a legal code. In other words, let the law grow up to suit the maturity of those who are mature enough to marry.

[ceo_esq]

Originally posted by Kimpatsu
No, I said there is no correct defintion of marriage that says marriage is solely between a man and a woman.Ah. Perhaps that is what you meant, but it is manifestly not what you wrote ("It's you [csense] who's trying to redefine marriage as being between a man and a woman, where no such definition exists"). There is more than a whiff of the No True Scotsman (http://en.wikipedia.org/wiki/No_true_Scotsman[/url) fallacy to your response here. At any rate, I leave it to you to complain to the OED editors, et al.
Originally posted by Kimpatsu
Any such definition is self-evidently arbitrary, for it ignores marriage as defined in Ancient Greece, Ancient Rome, the modern Soloman Islands, many African tribes, Ancient China, the Mormons...This prompts several observations. First of all, particularly as to the examples from antiquity, by reference to what criteria for relevance do you include definitions of marriage as defined in certain premodern cultures? Remember that what we were looking for was an "established definition" of marriage, and if you have a better and more reasonable definition of the term established definition than the one I proposed, bring it forth - and please explain why, for example, ancient Greece's definition qualifies as an established one for our purposes.

Second, is it even clear that, given the established definition of the English-language term "marriage", customary gender-neutral unions existing in other cultures and times can even adequately be described as "marriages"? The ancient Greeks certainly didn’t use the modern English term, and arguably, the word "marriage" is applied to such customs only by analogy, as we lack a better English word whose dictionary meaning precisely describes the scope and nature of such ancient customs.

One could argue that the established (and perhaps, in some absolute sense, the correct) definition of the term chattel excludes human beings from its scope, despite the fact that the corresponding concepts in ancient Greece, Rome, or China (among many others) did include human beings within their definition.
Originally posted by Kimpatsu
All this means is that the legal code of the small piece of land who happen by accident to inhabit at this moment of time and space arbitrarily narrows the defintion of marriage according to a set of species arguments based upon Xpian-derived homophobia.Leaving aside the several unsupported assertions in that statement, would you care to explain how any of this detracts from the "established" status of the definitions I offered? I think it's not unreasonable to conclude from the nature of this thread, the preponderance of the posts to it, and the nature of the message board itself, that the pertinent social and cultural contexts in which our discussion is taking place are, in roughly descending order of relevance: (1) the modern United States, (2) the historical United States and the modern English-speaking/common law world, (3) the modern West and the historical English-speaking/common law world, (4) Western civilization generally, and (5) everything else. Ancient China practically falls off the scale somewhere in left field, for example, so you have an uphill battle insisting that an analysis of its social and legal conventions aids in determining what is or is not "established" in any sense especially relevant to this discussion.
Originally posted by Kimpatsu
By the same argument, you must, to be consistent, also approve slavery using its Biblical justification, and oppose female equality for the same reason.Untrue. That will happen about the same time that you approve slavery and oppose female equality using their ancient Greek, Roman, and Chinese justifications (i.e. never).

Whence the biblical obsession, by the way?
Originally posted by Kimpatsu
Of course, if you really want to use American law as the basis for your argument, you must then also consider the foloowing:
1) Loving vs. Virginina, 1967. The U.S. Supreme Court ruled that marriage is a basic, civil right, with no reference to gender or sexuality.You can't seriously be citing Loving as evidence that the Supreme Court has endorsed same-sex marriage as a fundamental right, can you? The heterosexual definition of marriage was not at issue in that case. The reason the Loving opinion didn't expressly refer to gender or sexuality in marriage is that it was using the established definition of marriage in American jurisprudence and the English language generally. Accordingly, the Supreme Court was incorporating by reference the notion that marriage means the legal union of a man and a woman. To assert the contrary is, as I suggested earlier, to succumb to a result-driven fantasy.
Originally posted by Kimpatsu
2) The uhhh... U.S. Constitution, in the so-called "full faith and credit clause,which basically says that if one state supports it, then all states must, even if they don't provide for it.
The jurisprudence of the Full Faith and Credit Clause is complex, and contains many limitations and exceptions. Absent a major change in the Supreme Court's interpretation of full faith and credit doctrine, I assure you that it's extremely unlikely that there is any constitutional restraint on the ability of a state to withhold recognition of a same-sex marriage celebrated in a sister state. This is, perhaps, a topic for a separate discussion.
Originally posted by Kimpatsu
(2) and (3) don't count, as demonstrated above, and in repsonse to (1) I ask, do YOU understand anthropology, in which marriage can take many forms, including polyandry, polygamy, gay mnarriage (which, as I said, has a better historical precedent than one man, one woman), or even basic civil rights?I submit that you are using the term "marriage" in a very loose, qualified or special sense here; so would, necessarily, an English-speaking anthropologist confronting a bewildering array of social unions that do not have any precise correlative expression in the English language.
Originally posted by Kimpatsu
So, what you're really arguing is that the US Supreme Court was wrong to strike down segregation? For after all, that, too, was enshrined as law until justice won out.A well-meant word of advice: to say "So what you’re really arguing is X" (where X = some hitherto unargued proposition of an outrageous or scandalous nature), when you (presumably) mean to say "Couldn't the same reasoning be used to support X?", risks creating unintended annoyance in your interlocutor.

The Supreme Court had something of a basis in pre-existing law and fact for reaching its holding in Brown v. Board of Education. If it hadn't had such a basis, yet still ruled the same way, I would have found the result just but the reasoning improper. If it hadn't had such a basis, and so ruled the opposite way, I would have found the result unjust but wouldn't necessarily have blamed the Supreme Court for the injustice.

You misunderstand me if you think that I believe that a prohibition on same-sex marriage is just. My argument was that it's not unconstitutional, and I would suspect the Supreme Court of judicial legislating if, under the current state of constitutional law, it found that heterosexually exclusive marriage statutes violated the Equal Protection Clause. I would like for legislators to embrace the idea of gender-neutral marriage. For the Supreme Court to do it for them would raise a host of jurisprudential problems.
Originally posted by Kimpatsu
Bear in mind also that this argument is not limited to the USA. Canada, The Netherlands, and France have also all decided to allow same-sex marriage. This means that, quid pro quo, the USA will have to do so as well.If only it were so easy. You have a curious notion of comity in international law if you think that the United States will have to do any such thing.

Incidentally, same-sex marriages are illegal in France, although civil unions (known as PACS) are permitted.
Originally posted by Kimpatsu
Your anti-gay bigotry may keep you warm at night, but the bottom line here is that we are not the servants of the law; the law is our servant, in the quest to bring about a proper and just world. The law is an organic thing, which constantly grows and improves as society evolves, amtires, and thus grows more tolerant. Your conservative argument--"thus it has always been, so thus it must remain"--is the argument used by those who opposed the end of racial segregation. To be consistent, you must either agree with both forms of segregation, or neither. Of course, like the law, that would require maturation.
And always remember: sleeping with someone of the same sex would keep you just as warm as the anti-gay rights fire you currently nurture in your belly. Gay marriage was always accepted until recently, owing to ridiculous relgiious tenets. Yo ucannot have it both ways; wither embrace everything the New Testament teaches, including a right to slavery and the subordination of women (and that the world shoul have ended 2,000 years ago), or accept that it's a useless basis for a legal code. In other words, let the law grow up to suit the maturity of those who are mature enough to marry. There are a number of unsupported contentions in the foregoing; however, I agree with some of the rest of it. My point has never been that the law should not be changed to guarantee the right to same-sex marriage; it has been that the existing legal and constitutional framework in the United States does not provide a basis for such a guarantee.

How you infer from this that I am a homophobic bigot beggars belief. Acknowledging that "thus it has always been" is obviously different than arguing "so thus it must remain", and I defy you to produce a single remark of mine establishing that I am unfavorably disposed toward the principle of same-sex marriages.

[Kimpatsu]

Support for the denial of equal rights is bigotry. If you don't believe me, replace "gay" with "interracial" above to see what I mean. Just because the American states used to deny the right for interracial couples to marry does not make support for such a law right, any more than support for laws denying gay marriage is right today.
How you get from there to "No True Scotsman" is beyond me, but I'm sure you'll try to explain it.

[Scot C. Trypal]

ceo_esq,

Not to break up what you and Kimpatsu have going, but I’m still very curious as to how this is not seen as gender discrimination, from a legal standpoint.

As I said, you go to get a marriage license and they look at your legal gender (and age) on your driver’s license, and by that decide if you can marry the person next to you. True, this decision harms only a minority of men and women, but, by the very definition of the word “discriminate”, they are discriminating on gender who can enter into this arrangement with this particular person. A person can marry me there is an F is on their driver’s license (sometimes transsexuals even), but not if an M is there. Why is that not gender discrimination?

Earthborn,

On biological sex, I think I may have missed your point. Would it have been that the intention of those older cultures was to discriminate on biological sex and keep hermaphrodites out of marriage? I’d think that’d be right. I’d still think the law simply couldn’t discriminate using biological sex in all cases, and so went with appearance.

Today, we still look to legal gender, whatever was on the birth certificate, in marriage laws (even if it’s not the gender the hermaphroditic person experiences). I can’t find any law, during times in which we could unambiguously determine biological sex, which forbid hermaphrodites from marriage. Can anyone else?

[ceo_esq]

Originally posted by Kimpatsu
Support for the denial of equal rights is bigotry.
This presupposes a particular denotation of "equal rights", and we've already determined that your understanding of that term - especially in a legal sense - doesn't accord with (if you'll forgive the phrase) the established one. But leaving that aside for the moment, have I thrown my support behind the denial of the right of homosexual couples to marry? Obviously not. I've merely acknowledged that U.S. law supports such a denial, which on balance is not an especially earth-shattering revelation.
Originally posted by Kimpatsu
If you don't believe me, replace "gay" with "interracial" above to see what I mean.I've tried to explain at some length why "gay" and "interracial" are not interchangeable terms in the constitutional jurisprudence of marriage, although perhaps they should be. I'm not sure I can do much more in this thread to drive the point home.
Originally posted by Kimpatsu
Just because the American states used to deny the right for interracial couples to marry does not make support for such a law right, any more than support for laws denying gay marriage is right today.I never said the contrary.
Originally posted by Kimpatsu
How you get from there to "No True Scotsman" is beyond me, but I'm sure you'll try to explain it. Allow me to condense:Kimpatsu: No definition of marriage as a heterosexual union exists.

ceo_esq: Yet here are several such definitions.

Kimpatsu: Ah, but no correct definition of marriage as a heterosexual union exists!Sound familiar?

[Kimpatsu]

Originally posted by ceo_esq
Kimpatsu: No definition of marriage as a heterosexual union exists.

ceo_esq: Yet here are several such definitions.

Kimpatsu: Ah, but no correct definition of marriage as a heterosexual union exists!
Not true! The conversation ran:
ceo_esq: I arbitrarily define marriage to be between a man and a woman.
Kimpatsu: Thereby calling all classical Greek and Roman gay marriages "not true marriages", as with Solomon Island polygamous marriages, Mormon marriages, or any other kind of marriage that is not strictly one man, one woman.
ceo_esq: I don't care about them. I define marriage as one man, one woman, and that's all there is to it.
---
In other words, marriage is whatever you say it to be, rather than that which affords maximum equality to the maximum number of people.

[Christian]

Originally posted by Loki
ceo_esq,

I've said it before, but it deserves repeating ... You're good!

Indeed he is.

[KAW143]

It is not gender discrimination because it does not meet the currently accepted criteria for gender discrimination. Gender discrimination, as it it currently protected, must apply to an entire gender to count. For example: Women can't vote; therefore, the *gender* of women is deing discriminated against. Women with broken legs can't vote, but women without broken legs can (that's a pretty morbid example, now that I think of it. . . .); therefore, the gender is *not* being discriminated against. In that example, you have some kind of "leg-ism" going on there, but it isn't related to gender, because the entire gender is not affected.

How does this apply to gay marriage? Simple: neither gender is being categorically denied the right to marry, which would be necessary in order to accurately apply the Constitutional findings on gender discrimination. Yes, gender is an issue here, but only on a personal level. All men are not being denied the right to marry. ONly those men who want to marry other men. That does not apply to the entirety of men, therefore *men* are not being discriminated against, men who want to marry men are. For gender discrimination to apply, the *entire* gender would need to be affected.

This does not mean that we are not discussing a type of discrimination, here. It merely means that we are discussing a type of discrimination previously undiscribed by the Supreme Court and, therefore, not protected by the constitution. To accurately defnd this position, better arguments will need to be devised than simply "This is gender discrimination" or "This goes against the accepted definition of marriage". Point of fact, from a purely legal standpoint, neither of those statements is true. Instead, it is necessary to discribe why *this particular issue* is an example of discrimination *based upon its own merits* rather than its percieved connection to other issues.

CEO has been putting it much more eloquently than this, but I hoped that condensing it into my thouroughly imprecise lingo might help. . . .

[ceo_esq]

Originally posted by Kimpatsu
Not true! The conversation ran:
ceo_esq: I arbitrarily define marriage to be between a man and a woman.
Kimpatsu: Thereby calling all classical Greek and Roman gay marriages "not true marriages", as with Solomon Island polygamous marriages, Mormon marriages, or any other kind of marriage that is not strictly one man, one woman.
ceo_esq: I don't care about them. I define marriage as one man, one woman, and that's all there is to it.
---
In other words, marriage is whatever you say it to be, rather than that which affords maximum equality to the maximum number of people. I hate to pull a Perry Mason on you, Kimpatsu, but here's exactly what took place according to the transcript (boldface added by me):Kimpatsu (to csense, not ceo_esq): We're not offering a new definition; we're offering the established definition: A legal union between two consenting adults. It's you who's trying to redefine marriage as being between a man and a woman, where no such definition exists.

ceo_esq: Far from "no such definition" existing ... [proceeds to cite three definitions of marriage as a heterosexual union].

Kimpatsu: No, I said there is no correct defintion of marriage that says marriage is solely between a man and a woman.Note that I never referred to classical Greek and Roman same-sex unions as "not true marriages", I merely queried whether they provided us with an "established definition" of marriage. You still haven't explained to us, by the way, in what sense such definition could be the unique "established" one.

I'm not in the business of defining or redefining terms for general usage. I don't claim any definition of marriage as "mine". However, like the average person, I know where to look to find a definition when one is called for, and that place is not is my private personal lexicon. Also like the average person, the first place I am likely to seek an established definition relevant to a contemporary social dialogue being conducted in the modern English language is not ancient Greece.

The definitions I find in the usual authoritative sources might strike me on occasion as inequitable, and I wouldn't exclude the possibility of alternative definitions, but I certainly wouldn't do anything so absurd as to deny the existence of the discovered definitions - which is what you initially did when you said (and I quote) "no such definition exists". (Although, whoops, apparently you meant to say "no such definition exists which is correct.")

[Christian]

Originally posted by KAW143

CEO has been putting it much more eloquently than this, but I hoped that condensing it into my thouroughly imprecise lingo might help. . . .

But using the high school rule is wondeful.


HIGH SCHOOL RULE:

Explain it so an average high schooler can understand it

[Silicon]

I've been following CEO's posts in this thread.

I think they do make legal and logical sense.

However they may be over the head of the people who jump to see bigotry in his/her comments where it doesn't exist.


CEO, I appreciate reading your posts.

I'd pay real money to have a private chat on tis issue between you, brown (our ---former?-- resident constitutional scholar) and a couple of us to sit and ask questions in class!

[ceo_esq]

Originally posted by Silicon
I've been following CEO's posts in this thread.

I think they do make legal and logical sense.

However they may be over the head of the people who jump to see bigotry in his/her comments where it doesn't exist.


CEO, I appreciate reading your posts.

I'd pay real money to have a private chat on tis issue between you, brown (our ---former?-- resident constitutional scholar) and a couple of us to sit and ask questions in class! Thank you. Brown surely knows his stuff. Sometimes we exchange comments in other threads, but his attention or interest seems to be devoted elsewhere at the moment!

[kuroyume0161]

All of this jumping through hoops over gender is hilarious, to say the least. This is not an issue of gender discrimination!!! (Clear enough?)

It is sexual orientation discrimination - Gay Lesbian Bisexual Transgendered. That's for what the acronym GLBT stands. This has to do with the relationship between TWO (or more) people, not just the gender of a single individual person.

Now you can all drop the pretense that men can marry/enter civil unions and women can marry/enter civil unions, therefore there is no gender discrimination. Yes, only with the opposite sex (sexual orientation = heterosexual). And yes, there is no gender discrimination. It is sexual orientation discrimination.

Thank you very much. Good night!

- Elvis has left the building...

Kuroyume

[Kimpatsu]

Originally posted by KAW143
It is not gender discrimination because it does not meet the currently accepted criteria for gender discrimination. Gender discrimination, as it it currently protected, must apply to an entire gender to count.
Then this defintion of discrimination is wrong. To quote Kevin Pollack in "A Few Good Men": "All the rest is smoke-filled, coffee house crap." The only issue here is that people are being denied an option open to others, and one which if permitted, will harm no one. If gays marry, it neither picks your pocket nor breaks your leg. Therefore, it must be allowed. And this is the last word on the subject.

[kuroyume0161]

Originally posted by Kimpatsu

Then this defintion of discrimination is wrong. To quote Kevin Pollack in "A Few Good Men": "All the rest is smoke-filled, coffee house crap." The only issue here is that people are being denied an option open to others, and one which if permitted, will harm no one. If gays marry, it neither picks your pocket nor breaks your leg. Therefore, it must be allowed. And this is the last word on the subject.

Borrowing quotes from Thomas Jefferson, are we? ;)

The worst of it is that the denial of marriage/civil union incurs all sorts of problems for gay partners. When you've been with the same person for 10, 20, 30, and so on years, in a way nearly indistinguishable from marriage/civil union, it is quite disturbing for a third cousin twice removed to have more control over that person's estate than you! Or that, in any property collaboration, you are responsible for debt as a business partner or co-signer, but not as a spouse (which incurs different treatment).

Bluntly, financial and legal ramifications are different for a married couple and whatever is made of the gay partnership (friends, confidants, business partners, roommates, etc.). Yet, both involve the mutual long-term commitment and love of the people involved.

How do they justify this discriminatory practice, even going as far as to attempt to amend the US Constitution in order to disallow any compromise?

Kuroyume

[Upchurch]

I'm afraid I haven't done a wonderful job keeping an eye on this thread in the last month or so. Unless anyone streniously objects, I'm calling an official end to my moderation of this thread.

Thank you to everyone who participated in the thread itself as well as those of you that help define what a moderated thread ought to be. It has been a learning experience for me, at the very least, and I'm sure whill help us guide forum policy towards moderation and moderated threads in the future. (Heck, it's already dont that much!)

Thanks, again.

[Christian]

Originally posted by Upchurch
I'm afraid I haven't done a wonderful job keeping an eye on this thread in the last month or so. Unless anyone streniously objects, I'm calling an official end to my moderation of this thread.

Thank you to everyone who participated in the thread itself as well as those of you that help define what a moderated thread ought to be. It has been a learning experience for me, at the very least, and I'm sure whill help us guide forum policy towards moderation and moderated threads in the future. (Heck, it's already dont that much!)

Thanks, again.

Thank you.

[Darat]

Thanks for the funking good job, Mr U.

[Ipecac]

Whew. About time.

So now the flame war can start? :D

[Silicon]

Hey Upchurch, you forgot to declare a winner!


;-)



Thanks for moderating!

[Scot C. Trypal]

Originally posted by Silicon
Hey Upchurch, you forgot to declare a winner!


The internet service providers? :)

Yes, Moderation is much nicer, particularly when it’s a personal issue. Thanks Upchurch.

[Upchurch]

Originally posted by Silicon
Hey Upchurch, you forgot to declare a winner! Ah, yes. Well, given my predisposition towards the subject matter, I'd have to declare the people of Massachusetts to be the winners. ;) :D

After all, they did reach the correct answer first.

[Loki]

Upchurch,

Moderation has ended in this thread?

About bloody time you idiot! Man, but your lame ideas suck. I suppose you think a moron like you doesn't suck, but let me tell you that when it comes to bad ideas, you suck. And don't try the tell me I'm just engaging in Ad Hom attacks, 'cos you suck. And if I attack you, then I'm attacking your sucking ideas. You, a moderator? Ha - you couldn't moderate a moderated moderation. And you suck.

Why not try to counter my ideas with ideas that don't suck? Ha - I laugh in the face of moderation. "Ha ha aha, moderation" I say. You have no answer, just admit I've won.

You suck, upchurch.

I declare me the winner. {what were we talking about...??}

(Edited to Add ) : Don't even think of reporting this post to a admin - I already have! So there! Now whatcha gunna do about that...

[csense]

Originally posted by Upchurch
...I'd have to declare the people of Massachusetts to be the winners. ;) :D

After all, they did reach the correct answer first.

The people of Massachusetts had nothing to do with what you regard as the correct answer, and that's the problem.

Of course, the bigger problem is that people don't see it as a problem.

[Christian]

Originally posted by csense


The people of Massachusetts had nothing to do with what you regard as the correct answer, and that's the problem.

Of course, the bigger problem is that people don't see it as a problem.

Oh, boy, here we go.


It's a miracle, the thread resurrected. ;)

[Silicon]

Originally posted by csense


The people of Massachusetts had nothing to do with what you regard as the correct answer, and that's the problem.

Of course, the bigger problem is that people don't see it as a problem.

And the EVEN BIGGER problem is that people don't see THAT as a problem!
*snort*

I think pretty much everyone against gay marriage wants it decided by popular vote, because they know they have the votes. Folks for gay marriage want it decided in the courts because they know they DON'T have the votes, but they think they can prevail under the law.


And THAT'S why there are multiple venues to change the laws.

Checks and balances. I kinda like the system, myself.

But it allows those against gay marriage to yell and scream about activist judges and liberal bias and overruling the will of the people.

Conversely those for gay marriage can yell and scream about the bigoted masses and protecting people from the tyrrany of the majority.

[csense]

Originally posted by Silicon


And the EVEN BIGGER problem is that people don't see THAT as a problem!
*snort*

I think pretty much everyone against gay marriage wants it decided by popular vote, because they know they have the votes. Folks for gay marriage want it decided in the courts because they know they DON'T have the votes, but they think they can prevail under the law.


And THAT'S why there are multiple venues to change the laws.

Checks and balances. I kinda like the system, myself.

But it allows those against gay marriage to yell and scream about activist judges and liberal bias and overruling the will of the people.

Conversely those for gay marriage can yell and scream about the bigoted masses and protecting people from the tyrrany of the majority.


Please tell me you're not serious about these statements...

[Silicon]

Originally posted by csense



Please tell me you're not serious about these statements...

You know, csense,

This thread would be a whole lot better if you'd counter my arguments with ACTUAL ARGUMENTS rather than your silly, passive-agressive tone.

If you HAVE refutation to my points, REFUTE THEM. Don't post pissy little self-superior whines.


"Please tell me you're not serious about these statements..."

Shut up. Or tell me why your idea for running the country is better.

[csense]

...feel better now.


The point is that the seperation of powers exist itself as a checks and balances.
The Legislature creates laws and the Judicial interprets laws. There is a line of demarcation for a reason and it is not within the power of the Judiciary to instruct the legislature to make modifications to any particular piece of legislation that is fundamentally different from the intent of the legislation, let alone create laws at all.

The Judiciary can do many things, but it can not create legislation, and it is very dangerous to allow them to do so.

I am going to post on a seperate thread the opinions of the three dissenting judges from the Massachusetts SJC. It is a fairly long read, but it is very interesting.

[csense]

...There's too much information for one post and I don't have the time to break it down, so I'll just offer the link to you:

http://www.massnews.com/2004_editions/02_February/020204_gay_marriage_opinion.shtml

The dissenting Judges are Spina, Sosman, and Cordy...just click on their names.

[Silicon]

That's great. Thanks for weighing in.

I find the majority's argument more compelling.

[csense]

Originally posted by Silicon
That's great. Thanks for weighing in.

I find the majority's argument more compelling.

Well, this is just the point, is it not, since it is the legislature that should be arguing...not the judiciary.

Having said that, your answer doesn't surprise me in the least, but, you're entitled to it.

[Silicon]

Please tell me you're not serious about these statements...


Huh?



Do you understand yet?



(Just throwing your stellar wit back at you.)

[csense]

Originally posted by Silicon
Please tell me you're not serious about these statements...


Huh?



Do you understand yet?



(Just throwing your stellar wit back at you.)


I think one could argue that this is representative of your own wit, be it stellar or not.

[Darat]

Oh dear moderation ends and...

[Silicon]

...and I finally tell csense what I think about his debating style.

[csense]

Originally posted by Silicon
...and I finally tell csense what I think about his debating style.

:crazy: derrrr....I don't like you


does that about cover it