Massachusetts Court rules state cannot ban gay marraige

[mindseye]

Berzerker, I have not yet completed my reply. I am about half through. I will complete it and post it tomorrow.

[mindseye]

Berzerker -

I took a try at responding to all 73 separate splinters of our discussion, but I just don’t think that anything useful can be achieved from addressing them individually. The snip-n-quote practice has diminished the relevance of many of them to the point where they are simply not worth the typing time, not to mention the fact that few or our fellow posters could be expected to follow such a form of discussion.

Instead, I have decided to sum up my arguments into a statement. I invite you to resist the temptation to snip-n-quote, and instead reply in kind. At that point, unless you have any new arguments, I think I have said all I can, as well as I can.

I strongly suggest you discuss this topic with your gay friends, or try to find out how gay people really feel about getting married. I know if someone were asking me to support a law interfering with someone else's very right to marry, I would require an extraordinary reason before I would support such a law, at any price.

- mindseye

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SUMMARY OF MY ARGUMENTS IN SUPPORT OF GAY MARRIAGE


If customs are the fabric of culture, so to are definitions and words the fabric of language, and legal definitions the fabric of law. All three of these have changed a very great deal, both across the reaches of time and across the variation of cultures. We are now considering another such change, that of allowing gay people full and equal access to the legal rite of marriage in the United States.


Changing Traditions and Legal Definitions

Some argue that long-standing traditions and legal definitions should not be changed, yet customs and legal definitions are periodically changed to reflect transformations and evolutions of our society. Fundamental changes to customs and legal definitions have been made before, regardless of the weight of tradition. However obvious they appear to us now, to the generations considering the issues of slavery and women's suffrage, the proposed changes must have seemed a radical departure from custom indeed. In respect to marriage in the USA, customs and legal traditions have already been changed in many ways, including barring the participation of pre-pubescent children, allowing women the ability to terminate a marriage, and allowing members of different races to marry. The mere weight of tradition and custom can be no barrier when it comes to the question of denying anyone a basic human right, especially a right so central to one's life as the opportunity to marry a person of one's own choosing.


Procreation and Families

Some claim that the heart of marriage is the protection or encouragement of child-bearing. Yet couples not capable of child-birth are not denied the chance to marry, so marriage is clearly not granted or denied on that basis. Neither are capable couples punished in any way for failing to procreate. As for child rearing, gay people have already shown themselves to be every bit as capable, supportive, and loving as parents as their straight counterparts. Studies to date have found that children with gay parents are well-adjusted, and no more likely than others to become homosexual. If one of the purposes of marriage is to promote stable families, and if two parents are better than one, how can it be in the government's interest to actively interfere with the creation of stable, two-parent families?


Discrimination in Marriage based on Circumstances of Birth

Few serious voices any longer contend that gay people choose their sexual orientation. It is now widely accepted that, whatever its causes, homosexuality is a circumstance of birth - a circumstance over which gay people have no more control than over their race or gender. In the past, our society has, to its great credit, repeatedly decided that basic human rights should not be awarded or denied based on simple circumstances of birth, such as gender or race. Yet this is exactly what is happening when gay people are called on to forego marriage for no other reason than their sexuality, a sexuality not of their own choosing.

In 1967, the United States Supreme Court decided in Loving v. Virginia that marriage could not be denied someone for the simple reason of the color of their skin. In that decision, it was written that:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.

Given that sexuality is as much a circumstance of birth as race, gay people now ask how their case is any different from that of Loving. Gay marriage would not only likely affect more individuals, it also enjoys far larger support among the general public than inter-racial marriage did at the time of Loving.

In terms of the number of citizens directly affected, assuming that 5% of the population is gay, if just 7% of gays over age 18 wished to marry, the number would exceed the total number of inter-racial couples married three years after Loving. These are not the demands of an insignificant minority.
(Source: http://www.census.gov/population/soc...terractab1.txt).

Also, the percentage of the public supporting inter-racial marriage at that time was far smaller than that currently in support of gay marriage. In September 1958, in the first survey of its kind, a Gallup Poll asked white people how they felt about inter-racial marriage:

* Supporting interracial marriage:
-- Southern whites: 1%
-- Non-southern whites: 5%
(Source: The Gallup Poll: Public Opinion 1935-1971, Volume 2, New York, Random House) .

In fact, not until 1991 did a Gallup poll find more people approving of inter-racial marriage than disapproving.

On the other hand, according to a July 2003 Pew Research Center report, the number of Americans amenable to gay marriage is already far larger - and is steadily rising:

* Supporting gay marriage:
-- 1996: 27%
-- 2003: 38%
(Source: http://www.datalounge.com/datalounge...l?record=20882)


Benefits

In our system of laws, many rights, benefits, and responsibilities are awarded or denied on the basis of marital status. In a 1997 Congressional Report, the US General Accounting Office identified 1,049 federal laws in which marital status plays a factor. The GAO found that marital status is relevant to a very wide variety of laws, including those pertaining to taxation, immigration, commerce, employment, Social Security, Indian affairs, intellectual property, financial disclosure, conflict of interest, criminal law, domestic abuse, federal natural resources, agricultural loans, veterans benefits, and others. And that's just federal laws - cities and states have their own myriad of laws that also in some way depend upon a citizen's marital status. Affected areas below federal level include hospital visitation rights, insurance, inheritance, rental agreements, ability to make medical decisions, bereavement and sick leave, divorce and child custody laws, and even the ability to choose a final resting place for one's spouse.
(Source: http://www.gao.gov/archive/1997/og97016.pdf

It is not reasonable to ask gays to attempt to change each and every one of these laws and regulations (nor likely would it even be possible), when clearly the problem is the legal definition of marriage itself.

If homosexuality is a circumstance of birth, why should gay couples receive less benefits than their straight counterparts? Aren't gays taxpayers, too? Since the public shows no interest in renouncing marriage benefits, why should these benefits not be distributed fairly? Benefits seem very important to straight people, it should be no surprise that they are to gay people, as well. No straight couple is asked to undergo any sort of benefits "litmus test" before applying for marriage. Their motivation is not questioned, and neither should it be.

And what would the costs of such benefits be? Even if a high percentage of gays marry, the impact on the cost of these benefits would not be more than an incremental increase over the amount currently distributed. The experience of other countries such as Belgium should give us an idea. And even if the costs be large - what of it? What benefits are so costly that someone must be asked to forego marriage over it? Are there any straight people who would be willing to give up the opportunity to marry because someone else thought that the possible cost of benefits might be too high?

Are gay people seeking marriage simply to obtain benefits? Is there some sort of gay "agenda" aimed at wrestling dental benefits from frowning, disapproving employers?

The answer to that is quite clear from the mere fact that so many gays are choosing to battle for marriage as opposed to separate-but-equal civil unions. If gays were really only interested in benefits, why on earth would so many of them fight for marriage, a much more difficult battle than gaining gay civil unions, which enjoy wider support among the general population? Cynical accusations that gays are motivated solely or even primarily by a desire to obtain benefits simply don’t hold water given this basic reality of the debate.


Conclusion

Finding one's own true love is one of the dominant, perhaps the pre-dominant theme of our culture's art, music, and literature. Marriage is widely viewed as the ultimate culmination of romance, one of the greatest things a person can enjoy in their life. In this, why should gays be expected to feel any differently than everyone else? Straight people spend great amounts of money, time, and energy in planning, celebrating and commemorating their marriages. For many gay people, marriage to their special loved one looms equally large in their hearts and desires. What business does the government have in denying gay people this basic human right, a right not denied prisoners on death row, a right more precious even than that of voting? Before the government denies any group equal access to a basic human right, it must show very great reason indeed. Nothing approaching such a reason has been shown in the objections to gay marriage to date.

Let the wedding bells ring!

[David Floyd]

Before the government denies any group equal access to a basic human right,

Just so you realize this "basic human right" is the right to contract, and not some benefit entitlement program

[mindseye]

Originally posted by David Floyd
Just so you realize this "basic human right" is the right to contract, and not some benefit entitlement program

David, you are such a romantic!

I'm imagining you going down on bended knee before your sweetheart, taking her hand in yours, and tenderly asking her to enter into a contract with you.

[David Floyd]

Oh, you've said that once before, and I already ignored it's irrelevancy once.

But look. If you think marriage is simply about love and romance, then you don't even NEED a contract. Obviously, though, marriage is a contract, that hopefully includes love and romance - but primarily, the act of getting married is entering into a contract.

[mindseye]

Originally posted by David Floyd
Oh, you've said that once before,

I did?

Uh-oh, the long, slow slide into Alzheimers begins ...

[Ned]

Mindseye, I asked before but I do not recall your answer. The quote from Loving says that marriage (meaning between a man and women at that time) was "fundamental to our existence and survival." Because of this you claim that gays have a fundamental right to marriage even though their marriage has nothing to do with our existence and survival.

The quoted passage does not ineluctably lead to the conclusion that marriage is a basic right for gays.

Your summary does not address the conflict with Christianity and Islam. You assume that anyone has a Constitutional right to do things which offend the "religious dogma" of a majority. Reynolds v. US is authority to the contrary. Even though Reynolds is long settled law, the so-called rights of bigamists are now again being argued as a result of the several State Court rulings in favor of gay marriage.

Also, I do not recall your answering my question about that one Chinese province that once upon a time authorized gay marriages. The question was, how long ago was that? And, why did it end?

[Berzerker]

Mindseye -

David, you are such a romantic!

I'm imagining you going down on bended knee before your sweetheart, taking her hand in yours, and tenderly asking her to enter into a contract with you.

Possibly you don't realise this, but you're making fun of your own argument there. Because a "contract" is exactly what you want the government to recognise. David's response shows why:

But look. If you think marriage is simply about love and romance, then you don't even NEED a contract.

So which is it? A contract or love? You MAY need the government to recognise the former, but you sure don't need it for the latter...

And I'll just repeat the irony here, I support the political party that would legalise homosexual marriage - the Libertarian Party - and most homosexuals apparently support the Democrat Party which will not legalise homosexual marriage. I think that shows the real agenda here, it's about money/benefits, not human rights. That's a smokescreen homosexuals use to hide behind...

[Berzerker]

Ned -

You assume that anyone has a Constitutional right to do things which offend the "religious dogma" of a majority. Reynolds v. US is authority to the contrary.

The opinions of 9 (or 5) people are not authority.

Even though Reynolds is long settled law, the so-called rights of bigamists are now again being argued as a result of the several State Court rulings in favor of gay marriage.

Do you know how polygamy wa outlawed? Mormons moved out west away from existing state jurisdictions which outlawed the practice. The "good Christians" in the states demanded that Congress reach out and show their "love" for the Mormons by banning polygamy. The SCOTUS heard the resulting case and the court ruled that the religious freedom clause of the 1st Amendment protected religious "thought" only, not religious practices. Think about that! The SCOTUS effectively turned the USA into a communist country just to get those Mormons. The 1st Amendment (as is true for the Constitution in general) was designed to protect the minority from the majority and the SCOTUS turned the Constitution on it's head by claiming that the only religious practices that may remain legal are those with the blessings of the majority. Now Christians are complaining that the secularisation they started is coming back to bite them on the rears...

[Ned]

Berz, it would be interesting to see if the Framers believed that "free exercise" would permit polygamy, since at the time polygamy was sanctioned, if not required, by Islam. But, the Reynolds court did address this in away by distinguishing the "culture" of Northern and Western Europe from so-called "Asiatic" countries - meaning Constantinople and parts East. The divide they noted was between Christian Europe and Muslim Europe.

[Berzerker]

Ned - marriage was a state issue with the Founders in accordance with the 10th Amendment's separation of powers, that changed in the 1870's when Congress banned polygamy and the SCOTUS re-wrote the 1st Amendment. What Islamic countries required or allowed is irrelevant.

[Ned]

Berz, you have to consider that marriage was also an issue in territories governed by the Federal Government that were not states.

[CharlesBHoff]

Originally posted by Ned
Berz, it would be interesting to see if the Framers believed that "free exercise" would permit polygamy, since at the time polygamy was sanctioned, if not required, by Islam. But, the Reynolds court did address this in away by distinguishing the "culture" of Northern and Western Europe from so-called "Asiatic" countries - meaning Constantinople and parts East. The divide they noted was between Christian Europe and Muslim Europe.

Islam only allow than man to have up to 4 wifes at a time and only if he can support then and treat them all equall. The Christian in America who didnot like the Church Of Jesus Christ and Later Day Saint are being bitten by the Court taken away force school prayer, public display of religious symbols round Christmas time. Than are thet going to do when Islam become the magority religion in America. Islam is become the magority religion in Europe already(future growth
as European woman have less than 2.1 children to maintain stable populateion figure) muslum woman have on than average 4 or 5 childern in Europe.

[Berzerker]

Ned -

Berz, you have to consider that marriage was also an issue in territories governed by the Federal Government that were not states.

It only became an issue when the Mormons moved west. There was no law banning polygamy until then and the SCOTUS re-wrote the 1st Amendment to allow the law... And when the Mormons wanted to join the union as a state, they were told they could not practice their religion wrt polygamy AFTER they were admitted as a state... So where in the Constitution is this federal power to define marriage?

[mindseye]

Ned -

Sorry, I did not intentionally ignore your post, I was rather pre-occupied with my exchanges with Berzerker.

Originally posted by Ned
The quote from Loving says that marriage (meaning between a man and women at that time) was "fundamental to our existence and survival." Because of this you claim that gays have a fundamental right to marriage even though their marriage has nothing to do with our existence and survival.

No, my argument was that Loving ruled that marriage could not be restricted on the basis of skin color. Since homosexuality is no more self-determined than skin color, the same arguments apply.

If you are arguing that the ruling was based strictly on forms of marriage capable of producing children, I would again refer you to the fact that couples incapable of bearing children are currently allowed to marry.

Your summary does not address the conflict with Christianity and Islam.

What conflict? I'm talking about civil marriage, I do not propose that any religion be forced to change their own religious rites. If you are worried about a potential conflict between civil rites and religious rites, does not current American divorce law conflict with Islamic religious practice?

You assume that anyone has a Constitutional right to do things which offend the "religious dogma" of a majority. Reynolds v. US is authority to the contrary.

Where have I ever made that claim? I'm not even sure what you mean by "do things". You mean, like free speech? Burning down a mosque?

My argument would instead be that the religious dogma of the majority (or any religious group) should not trump the basic legal and human rights of any minority.

Even though Reynolds is long settled law, the so-called rights of bigamists are now again being argued as a result of the several State Court rulings in favor of gay marriage.

Reynolds was not some sort of blanket ruling that allowed anyone to do anything they want contrary to the majority's religious beliefs! Here's a nice summary of the rationale:

* Because society is built upon the civil contract of marriage, the government can permissibly pass laws regulating marriage.
* Permitting a certain class of people to willfully defy the nation's laws without repercussions in the name of religious liberty would permit every citizen to become a law unto himself and lead to the existence of a government in name only.
* While laws of the nation cannot interfere with religious beliefs and opinions, they can interfere with religious practices.
(Source http://www.kylewood.com/familylaw/reynolds.htm)

The idea of gay marriage does not conflict with any of this.

Also, I do not recall your answering my question about that one Chinese province that once upon a time authorized gay marriages. The question was, how long ago was that? And, why did it end?

Romance and sexual relations between men has been openly tolerated (and at times even admired) through much of China's long history. The best documented examples involved emperors who openly had gay lovers, but they are the best documented only because the lives of emperors were documented in so much greater detail than the lives of common folk. In fact, two of China's four most famous novels - Story of the Stone ("Honglou Meng") and The Scholars ("Rulin Waishi") - deal with homosexual (and lesbian) themes in ways which make it clear how commonplace such practices were. Besides histories, there is a wealth of other evidence from all manner of sources including paintings, poems, and even jokes.

The male-male marriages I referred to took place in Fujian province during the Ming era. The writer Li Yu (1611-1680) recorded:

In Fujian the southern custom (a Chinese euphemism for male-male sex/romance) is the same as that for women. One tries to discern a youth of whom this is the first marriage. If he is a virgin, men are willing to pay a large bride price. They do not skip the three cups of tea of the six wedding rituals - it is just like a proper marriage with a formal wedding."

The younger man moved into the older man's home, where he was treated as a son-in-law by the older man's parents. Some male-male couples adopted and raised children. These marriages usually broke up at some point so the men involved could re-marry women in order to sire children (extremely important in Chinese culture, even today). However, many of these male-male marriages lasted twenty years. Li Yu, in one of his works, wrote a tale in which a young man castrated himself in order to stay in his male-male marriage, such was his love for his husband.

This custom of male-male marriage was so common that it even had a deity to whom sacrifices were made. There were special community activities, festivals, and religious rites devoted to male-male love which apparently were participated in by the male community at large.

There is no specific time or reason given for the disappearance of these marriages, however, during the following Qing dynasty the conservative new Manchurian rulers began to restrict the most overt forms of homosexuality (along with other things viewed as excessively liberal Ming holdovers). Yet at least two Qing emperors courted men (Xianfeng, Tongzhi), another (Qianlong) openly had a gay lover. China's last emperor, Puyi, was also apparently gay. Despite Manchurian conservatism, homosexuality continued to be widely tolerated in China at least through the end of the nineteenth century.

There is less evidence in Chinese history about he life of lesbians, mainly because there is so little written about women's personal lives at all. That there was such activity seems clear from the existence of ancient double-headed dildoes. The best-documented female-female marriages took place within the all-female "Golden Orchid Associations" found in southern China. Two women would undergo a marriage ceremony in which one was designated "husband", the other "wife". A ritualistic exchange of gifts was followed by a feast which served to witness the marriage. These unions were life-long. Couples were known to adopt and raise children, who were legally able to inherit property from their adoptive parents. These lesbian marriages were apparently quite common in the Guangzhou area, common enough that a contemporary male observer wrote that "they cannot be escaped within the province". Because Chinese women's history is so fragmentary, I'm afraid I cannot provide many more details than this about lesbian marriages.