Senate to rule on Gay Marriage Amendment

[molly bloom]

Originally posted by Kontiki


My apologies, Molly, but I'm not really sure what you're getting at here - or perhaps it's just a case of mutual misunderstanding. Driving, to take one of your examples above, is certainly not a right so we needn't worry about placing restrictions on it. Now, one can argue where those restrictions should be, but I think we can all agree that some restrictions are necessary. Marriage, IMO, is also not a right.

I think many Americans would argue that they have a customary 'right' to drive or own a car- in fact whenever petrol prices were going to be increased or exhaust emissions regulated, there'd usually be someone claiming it interfered with their fundamental 'right' to own five petrol guzzling cars.

The Greeks (again) saw this distinction in terms of what was a legal 'right' and what was a customary 'right'.
The Anglo-Saxons had tribal customs- these customs (when regulated, codified, and so on) became the basis for English (and by descent) American common law.

The United States' Supreme Court disagrees with you about the fundamental 'right' to marry:

" The first state marriage law to be invalidated was Virginia's miscegenation law in Loving v Virginia (1967). Mildred Jeter, a black woman, and Richard Loving, a white man, had been found guilty of violating Virginia's ban on interracial marriages and ordered to leave the state. The Court found Virginia's law to violate the Equal Protection Clause because it invidiously classified on the basis of race, but it also indicated the law would violate the Due Process Clause as an undue interference with 'the fundamental freedom" of marriage.

In Zablocki v Redhail (1978), the Court struck down a Wisconsin law that required persons under obligations to pay support for the children of previous relationships to obtain permission of a court to marry. The statute required such individuals to prove that they were in compliance with support orders and that marriage would not threaten the financial security of their previous offspring. The Court reasoned that marriage was "a fundamental right" triggering "rigorous scutiny" of Wisconsin's justifications under the Equal Protection Clause.

In Turner v Safley (1987), the Court refused to apply strict scutiny to a Missouri prison regulation prohibiting inmates from marrying, absent a compelling reason. Instead, the Court found the regulation failed to meet even a lowered standard of "reasonableness" that it said it would apply in evaluating the constitutionality of prison regulations. "

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/righttomarry.htm

One of the more (to my mind) ludicrous arguments against said marriage:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html

Requiring only a small change to the wording, one has in essence the argument of some against gay marriage too.

Do you think that there are any valid reasons as to why incestuous marriages are not allowed, or that the same arguments could be applied to unrelated gay men and lesbians?

[MrFun]

Originally posted by molly bloom


I think many Americans would argue that they have a customary 'right' to drive or own a car- in fact whenever petrol prices were going to be increased or exhaust emissions regulated, there'd usually be someone claiming it interfered with their fundamental 'right' to own five petrol guzzling cars.

Sorry your fabulous majesty, but I have to disagree with you on this bit.

No matter how often some ignorant redneck or whomever THINKS they have the right to drive, and no matter how often some people interchange the words "right" with "privilege" when discussing anything about driving, it is not a customary right.


It is a privilege -- nothing more than that no matter how others might like to think otherwise.

[Kontiki]

Re-arranging the order a bit for the sake of clarity.

Originally posted by Aeson



Selective quoting of the dictionary! You failed to include...

Yes, selective quoting of the dictionary. You tend to use the definition that's applicable to the argument at hand. You might have noticed that the first definition was preceded with the notation "law:", meaning that this is the applicable definition for a legal argument, which is what this is. We can discuss financial derivates and puts, and I can assure you that there are numerous definitions of "put" in the dictionary, but only the one dealing with the financial derivative would be applicable.

Loving vs. Virginia never happened...

The US Constitution and SCOTUS have jurisdiction over marriage whether you think it should or not, and whether they address the issue currently or not.

Only inasmuch as a state law concerning marriage may violate the constitution - which is precisely what Loving v Virginia was about. The US govenment itself does not have a comprehensive set of laws on it's books concerning marriage - it defers to the individual states. SCOTUS has not ruled (yet, if ever) that Massachusettes' recognition of gay marriage violates the Constitution, so unless Massachusettes starts putting stuff into law that does violate the Constitution, then however they codify marriage stands within their legal boundaries.

I have never said that it does. If you want the answer to that, you'll have to make it up, just like you made up the reference.

I specifically stated that the US government was the state that allows homosexual marriage but does not recognize it.

But unless and until the US government starts deciding which marriage applications are accepted and denied in Massachusettes, then the state is a sovereign jurisdiction. And the distinction is important here - the US government can compell an individual state to change it's laws, but until they do, what the state says goes.

This is your best argument. You should stick to it. All you are saying here agrees with me.

In the US, homosexuals can get married in Massachusetts. "Marriage" in that part of the US means one thing. Other parts of the US (and the US federal government itself) do not consider those marriages because of DOMA (or in the case of the US, no current law addressing the issue). "Marriage" in those other parts of the US means another thing.

So in the US, homosexual marriage is allowed, and the same union is not recognized as a marriage by the US.

This is the same argument, and it directly contradicts your original point. Remember what that was? That the same jurisdiction can both allow and not recognize gay marriages. For the upteenth time - Massachusettes is the jurisdiction, not the US government. That's why marriage laws are not identical in Utah as they are in Texas as they are in Vermont - each state is it's own jurisdiction! And to return to the rather irrelevant US government, marriage to it means the same thing everywhere - exclusive to a man and a woman. Because even in Massachusettes, it does not recognize a gay couple as being legally married, ipso facto, it does not allow gays to get married. You needn't actively prevent something if you don't allow it.

[Ben Kenobi]

The state has a right to intervene where necessary and marriage is one of these issues. Civil marriage must be granted to gay or straight couples alike.

On what grounds? Black people feared for their lives, hence they needed the protection of the state. This is hardly comparable.

Why does granting marriage to gay couples put a burden on the rest of you?

Benefits associated with marriage have to be paid for through other means. There is no such thing as a free lunch. If you extend these benefits to gay people, then this will have two effects.

1. The state will continue to provide the same level of benefits to everyone, and be forced to raise money in order to pay for the increased benefits.

2. The state will dilute or eliminate the benefits associated with marriage in order to cut costs.

Either way, the public nature of marriage imposes burdens upon those who are not married.

Then Jim Crowe laws were a public issue but if you gave people in the south a say on the issue (in the 50s for example) they would choose to keep these horribly unfair laws.

Jim Crow lynched blacks. Homosexuals are protected by law. Ergo, there is no analogy between the current situation, and Jim Crow.

It fell on the federal government and the Supreme Court to do what was right even though the population was against it.

Yes, because those who were black were in mortal danger from the laws in the south at the time. Hence, the government had an overriding obligation to protect their citizens, over those who wished to harm them.

Take inter-racial marriage. Legalised in California in 1949, even though some 90% of the population was against it.

Now, we have a much better argument. However, for the sake of marriage, miscegenation does not change the nature of the union. Homosexual marriage does. Ergo, the two are not analogous.

This isn't true nor is it right. My health isn't any worse off then any straight guy out there. And there are many dissatisifed straight men too... should they become gay? Your reasoning is comical.

First off, concerning your health, that is one thing. On average, quite another.

It is not that they are dissatisfied, but that they will be better off with therapy. I would say that just as much for the heterosexual and is unhappy with his life, that he ought to be chaste, no different for the homosexual in a similar situation.

So I suggest, rather than attacking a strawman, you address the fact that I am not calling for the gay men to become straight, but rather chaste.

[molly bloom]

Originally posted by MrFun



Sorry your fabulous majesty, but I have to disagree with you on this bit.

No matter how often some ignorant redneck or whomever THINKS they have the right to drive, and no matter how often some people interchange the words "right" with "privilege" when discussing anything about driving, it is not a customary right.


It is a privilege -- nothing more than that no matter how others might like to think otherwise.

You're not disagreeing with me.

I don't believe that anyone has the fundamental right to own an uneconomic gas guzzling Yanktank (as they're known in Australia) but I was stating what I've seen some Americans saying- even using it as an argument against signing the Kyoto protocol.

It's a problem that you will get if you have a society (or form of government) that is seen as bestowing 'fundamental rights' or where you get wording such as :

'certain unalienable Rights,
That among these are Life, Liberty and the pursuit of Happiness.'

Who decides what is the pursuit of happiness, or how one goes about it? It was a problem much vexing to the founders of your country:

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add "within the limits of the law" because law is often but the tyrant's will, and always so when it violates the rights of the individual."

Thomas Jefferson, letter to Isaac H. Tiffany (1819)


Happiness to some is a warm gun, after all.

[Ben Kenobi]

Aeson:

Very true. Single people can also provide the benefits you associate with marriage.

No, they cannot, at least not in general.

Better to have the parents of the child married rather than single, since they parents will be more likely to stay together when married.

The solution (to the marriage issue), and one which you say you would support, is to keep the government out of people's private lives. No state recognized marriage... and if the state wants to reward such things as raising children, do that seperately.

Fair enough. Are you willing to go the distance and say that there is no such thing as legal marriage recognised by the state? Are you also willing for the state to shunt that responsibility to the churches?

These would be the consequences of this position, so if you are willing to accept these consequences in order to ensure equity, then I have no disagreement with you.

While the state recognizes heterosexual marriage, it needs to recognize homosexual marriage though. That other groups would still be discriminated against is no reason to continue discriminating against any of the others.

Actually, the state has good reasons to discriminate. The fact that certain provisions are available to help parents with the burden of raising children in no way means that these benefits ought to be stripped away.

The state, as in providing for handicapped folks, or for minorities, derives positive benefits from discrimination, ergo, they ought to retain those benefits.

[Thorn]

You know Ben, when my Panzers storm through Canada, they're headed straight for your place.

[Monk]

The case is really called 'Loving v Virginia'?

[molly bloom]

Originally posted by Monk
The case is really called 'Loving v Virginia'?

I know.

This is a country where a legal definition of sodomy included extra-marital sex and lesbianism.

And where you could legally marry your 14 year old cousin.

[Ben Kenobi]

You know Ben, when my Panzers storm through Canada, they're headed straight for your place.

Well, no loss there, considering that I live in Vansterdam.

Blitz away!

[MrFun]

Originally posted by Ben Kenobi


On what grounds? Black people feared for their lives, hence they needed the protection of the state. This is hardly comparable.



Benefits associated with marriage have to be paid for through other means. There is no such thing as a free lunch. If you extend these benefits to gay people, then this will have two effects.

1. The state will continue to provide the same level of benefits to everyone, and be forced to raise money in order to pay for the increased benefits.

2. The state will dilute or eliminate the benefits associated with marriage in order to cut costs.

Either way, the public nature of marriage imposes burdens upon those who are not married.



Jim Crow lynched blacks. Homosexuals are protected by law. Ergo, there is no analogy between the current situation, and Jim Crow.



Yes, because those who were black were in mortal danger from the laws in the south at the time. Hence, the government had an overriding obligation to protect their citizens, over those who wished to harm them.



Now, we have a much better argument. However, for the sake of marriage, miscegenation does not change the nature of the union. Homosexual marriage does. Ergo, the two are not analogous.



First off, concerning your health, that is one thing. On average, quite another.

It is not that they are dissatisfied, but that they will be better off with therapy. I would say that just as much for the heterosexual and is unhappy with his life, that he ought to be chaste, no different for the homosexual in a similar situation.

So I suggest, rather than attacking a strawman, you address the fact that I am not calling for the gay men to become straight, but rather chaste.

First of all, I don't believe you can put monetary value on such priceless, invaluable principles as human dignity, freedom of conscience, freedom of self-identification. So to say that we need to budget or finance a state's government at the expense of such basic principles is way too callous and cold-hearted.


Secondly, you again have this arrogant presumption to demand that gays live a chaste life. This means that the majority of gays, in your callous opinion, are to deny themselves their own pursuit of happiness to live a fuller, meaningful life.


Third, it is legitimate and perfectly fair to draw analogies and/or parallels between issues of religious, racial, gender, and sexual orientation discrimination. For instance, if you would ever read the book, "Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies" by David Richards, you would understand such use of these arguments.

David Richards is a professor of law at New York University and he is also a director of the Program for the Study of Law, Philosophy, and Social Theory.


Fourth, the fact that blacks have suffered entirely different forms of discrimination in the past from that of what gays suffer today, does not lessen the legitimate concerns of gays in today's society.

[MrFun]

oh, and Molly . . . . .


got your point now

[Ben Kenobi]

You seem to be equating the benefits afforded by marriage to the right to be married therein.

Actually, the homosexuals are not making that distinction, so why should you? Gay people have the same right to get married as anyone else. No one is barred from being married, provided they abide by the same restrictions that apply to everyone.

The idea is for equal right to be married, and the benefits afforded as a consequence of that should be equal to heterosexuals and homosexuals, simply because there is no reason not to be.

Stop there. Suppose we take your presupposition, that the benefits do not equate with the right. Would it be right then to allow people to get married, but to only provide the benefits to heterosexual couples? Either the right to get married also provides the benefits to the couple, or the state is perfectly permitted to discriminate between those who will recieve benefits, and those who will not.

And surely you would not approve of a gay man marrying a heterosexual woman under false pretenses?

What false pretenses? If the woman is willing, and not coerced, they are permitted to marry freely.

It is not so much a question of a humans right to be married being affected by ones sexuality, rather ones right to be married to their person of choice.

Ah, but you do not have this right. The person can refuse you. You do not have the right to get married to the person you want, without mutual consent. And even then, there are particular restrictions based on the age, blood relationship, and the number of those to whom you may be married.

Are you advocating that the state does not have the right to impose all of these restrictions?

That would seem to imply that were you to have the means to impose such a law, you would do so.

You can make an argument along the lines of public health, but again, the very nature of the act is such that it is impossible to regulate in any consistent manner.

I'm saying that such a law is invalid anyway, since I am an advocate of the individuals right to live by their own morality so long as it is not forced on another, and not have another moral code imposed upon them.

We do not have that right to live by our own morality. We do not have the right to kill other people, just because we desire to do so.

In certain aspects of our lives, we are permitted liberty, but not in others, as our liberty would infringe upon the liberty of others.

Marriage does not apply to one of these specific aspects, since it cannot be a private ceremony. In order to be legal, a marriage must be public and witnessed. Ergo, the appeal to privacy fails.

I like the emotive attempt to put gay marriage in the same sordid box as incest and polygamy.

Why emotive? The argument is logical. If the state cannot regulate, then they will not provide benefits.

There seems to be this "taxation" argument against gay marriage that I find curious. If the state does not want to give tax breaks or whatever to couples, then they don't have to.

Precisely my point. This would do away with all the 'benefits' that gay people seem to clamour for.

I don't understand why the anti-gay people are so determined to make a sticking point out of it.

Because they accept the premise of my argument, in the analogy with veterans. Veterans provide a great benefit to the state, and ought to be compensated for their sacrifice. In the same way, those who marry ought also be compensated.

Wrong, the state can uphold some ethical principle, for example, that of liberty,

Ah, but liberty is very much a moral construct. In saying that there are some areas the state ought not to intervene is another moral statement.

Haven't you read Hume?

act in some form of moral guidance.

What is the purpose of law, Whaleboy? Law operates on that fundamental principle, that the state has the responsibility to serve their citizens, and to protect them. The state claims the right, in law, to settle disputes between the people, in a fair and equitable fashion.

Ergo, the state claims a moral responsibility, not only for moral guidance, but also for judgement, and even for punishment!

I prefer to think there is no moral right or wrong as defined by the state .

Try to kill someone Whaleboy. Then come back and tell me that there is no right or wrong as defined by the state.

So a libertarian state where certain actions are forbidden,

Under what grounds would a libertarian state allow some actions and forbid others?

There is no direct impositional burden as there is with something like assault or the imposition of a moral view of one upon another.

No taxation without representation. You cannot tax the people without their permission.

You can make a case for there being a consequential, interpretative harm caused by public display of gay relationships to homophobes,

Which is not my argument. I argue that in the provision of benefits, marriage ought to remain a public institution. If the people have to pay in part to support marriage, then they ought also have a say in whether those provisions will continue to be paid.

Now in terms of taxation, society agrees to afford certain benefits to marriage. We are not arguing for marriage to be extended to all human beings, since it already is, we are arguing for marriage to allow for same-sex couples, and I can see no reason why that should not happen,

I can think of several...

If society does not want to pay those benefits, then it neednt, but note that your argument would conclude that any marriage without the consent of the populus is imposing its burden upon the rest of us without its consent, so no dice.

Fair enough. Now you are left with the question of why marriage ought to remain a public institution, if the state does not provide any benefits, or recognition of marriage. If marriage is a social institution, then what is the role of the state?

It is an issue of public recognition, not public business. It is akin to me wearing what I like in public, so thus displaying myself to all those who would look, expressing my identity, but that is none of the publics business in a proactive manner.

But the state is not required, nor permitted to dictate public dress. Why then should they issue marriage licenses?

How many have suffered at the hands of the state? Before homosexuality was legalised in the UK, many.

Ah, but the analogy is false. There is a real different between the term 'harm' and the term 'killed'.

Blacks were lynched in the US, and died in Britain, all at the hands of the state. This is why they needed civil rights provisions, in order to protect them from the vagarities of the state, and of their fellow citizens.

Now I agree with you that homosexuals ought to recieve the same provisions, and you admit that they have. Therefore, this is a completely different battle. It is wrong and distorting to make the comparison.

Afterwards and today they still face institutional discrimination as highlighted by MrFun in his post earlier.

Which is another matter entirely. Not all forms of institutional discrimination are wrong.

[Ben Kenobi]

First of all, I don't believe you can put monetary value on such priceless, invaluable principles as human dignity, freedom of conscience, freedom of self-identification. So to say that we need to budget or finance a state's government at the expense of such basic principles is way too callous and cold-hearted.

Then you will relinquish the benefits, and allow the state to distribute them as they see fit, so long as they give you a piece of paper that says that you are married?

Secondly, you again have this arrogant presumption to demand that gays live a chaste life. This means that the majority of gays, in your callous opinion, are to deny themselves their own pursuit of happiness to live a fuller, meaningful life.

Not my opinion, but Christ's. If Christ is callous, he also provides the means to live the life. I do not believe a chaste life is any less full, or meaningful, and I bet your reverend would resent the implication.

Third, it is legitimate and perfectly fair to draw analogies and/or parallels between issues of religious, racial, gender, and sexual orientation discrimination.

On what grounds?

For instance, if you would ever read the book, "Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies" by David Richards, you would understand such use of these arguments.

If you have read the book, then I suggest you apply his arguments here. This way I can assess the merits of his points.

Fourth, the fact that blacks have suffered entirely different forms of discrimination in the past from that of what gays suffer today, does not lessen the legitimate concerns of gays in today's society.

No, but it means you cannot apply the analogy, since the analogy is false, misleading, and insulting to those who lost their lives in the Civil Rights movement.

[Ben Kenobi]

The more people are ridiculed and ostracised for holding these, quite frankly, unpleasant and hateful views, perhaps the sooner it will be stamped out.

Christ ate with prostitutes, Provost.

Just because you disagree with someone does not make them hateful or bigots.