California's Proposition 8

[doG]

Mr. Skeptic has indeed raised valid points.

 

That's relative isn't it. For example, it is obviously a valid statement that gay couples cannot reproduce but it is not valid to list the inability to reproduce as a reason for the State to view one couple differently than another. In the context of seeking valid reasons that the State should view gay marriage differently than heterosexual marriage it would not be a valid point since the State uses no such test in issuing licenses for heterosexual couples. See the difference?

[waitforufo]

Mr. Skeptic,

As I said in my last post, I do believe you have made valid points. Also, I do believe the doG owes you a thoughtful response to your questions. In light of my previous post, let me try to respond where doG has not.

 

Are you saying that it is possible for gay people to produce children with each other?

Are you saying that gay couples have, on average, as many children as straight couples?

Are you saying that the state does not care about its population size?

The last question in the above set of three is likely the most important because it in a way summarizes the set. The population of a state can indeed impact the life, liberty, and property of the individuals within the state. I mentioned in a previous post that the ancient Greeks required all citizens to procreate regardless of the sexual orientation. Procreation was considered to be a civic duty. By linking procreation to the civic duty of marriage one could argue that marriage should be restricted to heterosexuals where civil unions would be available to any couple. Marriage would then require an intention to procreate. Perhaps the state could even restrict birth control until procreation occurred. Also perhaps the state would have to require medical tests prior to marriage to insure fertility. To establish such requirements based on an impact to life, liberty, and property of citizens in general, one would have to show a declining population tendency. Some states do indeed have this problem today (France, Italy, Spain, …). If requirement to procreate were not made however, I don't see how one could justify restricting gay marriage. As I have said many times now, I believe gays should have the right to marry.

 

Are you saying that male gay couples can breastfeed?

Are you saying that breastfeeding has no effect on the health of the children?

Are you saying that the state doesn't care about children's health?

Again the last question seems to summarize the set. The state does care about children's health. Children have a right to life and if not properly fed, sheltered, and nurtured, they may be robbed of that right. If procreation is not required for marriage then these questions are moot. They do perhaps impact gay adoption of children still of an age where breast feeding is considered important.

 

Are you saying that people do not view gay marriage as wrong?

Are you saying that people do not view gay marriage as wrong, compared to how they view straight marriage?

Are you saying that the state shouldn't care what its people think?

Judgments of right and wrong must be weighed against religious or philosophical principals. Religious or philosophical principals are generally irrelevant in matters of law, at least in secular societies. Your third question here is a bit more thought provoking. If the state sanctions or permits activities against the general will of the people governed, regardless of the correctness of that will, the state could collapse. A collapse of the state would have a profound impact on the life, liberty, and property of the population. In such circumstances the will of the people must be heard so that the state is preserved. Thankfully in societies like the US, those affected by immoral majority opinions still maintain the rights to free speech. Through this right, and through civil disobedience, they can attempt to persuade the majority.

 

Are you saying that the laws for gay marriage are the same in all states?

Are you saying that the differences in laws about gay marriage are less or equal to the differences in laws about straight marriage?

Are you saying that the state shouldn't care that its laws may be in conflict with those of other states in important ways?

With regard to the last question of this set, the US is one country. Some laws are different from state to state but laws that impact life, liberty, and property are uniform and guaranteed by our constitution. So my car title issued in Washington State is valid in all states I visit because it is my property. My driver's license is valid in all states because driving affects my liberty. My marriage license is also valid in all states because this partnership impacts decisions about my life.

 

Congress passed a federal law called the Defense of Marriage Act. This law permits marriage rights to be different in different states. This type of exception is generally not permitted in the US based on constitutional prohibition. This law has yet to be challenged at least to the Supreme Court level. There are however other precedents that would permit this law. For example one state can by issued permits allow its citizens to carry concealed weapons (firearms), but these issued permits may not be valid or respected in other states.

 

Are you saying that because some individuals in one group are like most of the individuals in a different group, that that makes the groups the same?

This is obviously a ridiculous question. Our laws however are generally designed to specifically protect minorities of thought, race, religion, and inclination. As I have said. You should only restrict the liberty of an individual when their actions restrict the liberty of others.

 

I did my best. What do you think?

 

---------

doG,

I hope it is clear from my previous post and this one that I don't think Mr Skeptic's valid points are valid for setting law. As I have said many times, I do think gay marrage should be legal. By the way, I'm not sure if Mr. Skeptic disagrees with gay marriage.

Edited November 15, 2008 by waitforufo

[iNow]

If you can show that the word "marriage" meant, to the people who originally wrote marriage laws, included both homosexual and heterosexual union, then I will change my mind on this matter. If not, then I will continue to support that laws cannot be changed by changing the meaning of words.

 

I'm not sure how various interpretations of what the original authors may have meant would serve our purposes here. For example, I'm quite confident that the original authors never intended to include a union between a black and white person to be legally defined as "marriage" either, yet we allow that because we have progressed past such unwarranted discriminations and inequitable application of our laws based on genetic traits.

 

You almost concede this point yourself when you mention that women were not treated equally as humans under the original interpretations, yet (as we all see as blindingly obvious) that original interpretation and definition is not at all a valid reason to restrict the rights of women based on nothing more than their gender. Many pages ago in this thread I referenced the 14th amendment. There was good reason for that. doG has recently raised the point again.

 

I also agree with the other posters that those questions you've asked are entirely irrelevant to what sets law, so IMO they don't warrant response. I welcome further explanation of their relevance, and will honestly reconsider my present position if you first take steps clarify yours (i.e. how are those questions relevant to the dialog).

 

 

Finally, in response to my comment regarding my own conversational intolerance, you responded that you were intolerant of lying. Where do you feel I have lied? I ask that you give a specific example, and allow me the opportunity to review my words and offer clarifiication.

[Mr Skeptic]

I'm probably going to regret getting in the middle of this, but I'm going to give it a shot anyway. If you're all more interested in proving particular people wrong than finding agreement, feel free to ignore me.

 

The trouble is that being valid is kind of central here, since the question asked for valid arguments.

I still have yet to see a single valid argument for why homosexual marriage should be viewed any differently whatsoever by the state than hetersexual marriage.

 

It seems to me there's a lot of cross-arguing going on. There's a lot of accusations and bickering about what is and is not "valid." I don't care about that. I'm going to treat all arguments as "valid," and simply answer the ones I disagree with. Since Mr Skeptic is playing the Devil's Advocate to my own beliefs (or maybe he believes those things - I don't care), I'll address his most recent post.

 

I am arguing that homosexual and heterosexual marriages are different, that they should be viewed as different because and to the extent that they are different, and that differences make for valid arguments to treat different things differently. A lot of people seem to think that I am arguing that these are reason enough to ban gay marriage. All I am saying is that they are valid arguments why they should be viewed differently.

 

That is, indeed, a faulty argument. However, I'm pretty sure that's not the argument being made.

 

While he did not actually say that, by claiming to have shown my statements invalid, when all he showed was that eg some heterosexual couples can't have babies either, he very much implicitly stated it. After he did the same again and again despite my telling him that he was responding to something I didn't say, I accused him of strawmanning.

 

The anecdotal stuff does not show there's no statistical difference, but it does show there is no absolute difference and at most a statistical one. And that is no basis for a just law. Analogously, men are more likely to commit violent crimes than women, and black people more likely than white people, but it would be unjust to, for example, use that as justification for revoking the second amendment rights of anyone with a Y chromosome or excessive melanin. People are judged by their actions, not the actions of their demographic.

 

And this may prove my statements irrelevant, but not invalid.

 

I don't really know where these questions you're asking come from (this thread is far too tedious to read through carefully), and it's not clear whether you mean them to be arguments on their own (they're not) in the form of rhetorical questions, but if you're so eager, I'll give it a shot. In return, I'd ask you to explain why you think each presupposed answer is an argument against gay marriage.

 

Because doG and others were strawmanning my position, whether intentionally or not, I wanted him to answer yes or no questions, leaving no wiggle room to change what was being said. In essence, by responding "yes" he would be wrong, but in answering "no" to any group of three, he would be showing that my original statements constituted a valid argument. He chose not to respond.

 

As you have shown, they are not at all good arguments. Well, the one about how many children they have might be, but it would be very complicated and unclear due to marriage/tax laws and the reasons for them (whether any of them involve helping married people for their children), and still not particularly good.

 

Mostly, I am arguing that these are valid arguments, and people are arguing that they are invalid because they are not good arguments.

 

I think that ParanoiA summed it up nicely.

Your points aren't invalid - they're irrelevant in the context.

 

Here's what's happening...

 

Person A: Name a valid difference between white folk and black folk

Person B: Uh...skin color?

Person A: Oh, sorry, we don't judge people based on their skin color dude! Why is it ok for you to be a bigot? How are we supposed to come together and advance past our differences when you can't even work yourself around skin color? Sorry, that's invalid.

 

If that looks like a sensible exchange, then you have some internal work to do. If that looks like Person A missed the point, then scroll back and rethink your replies to Skeptic's answers to your questions about valid arguments. Again, not sound arguments, valid ones.

iNow's question was a bit more complicated that just a difference, but what ParanoiA says is how I see this whole thread. It is further complicated by the fact that iNow has repeatedly rephrased his question after I answered it initially, but never acknowledged that I had answered his question as he stated it. Therefore, I also accused him of moving the goalposts.

 

I still have yet to see a single valid argument for why homosexual marriage should be viewed any differently whatsoever by the state than hetersexual marriage.

The question was if there were valid reasons for the state to allow a right to heterosexuals and deny it to homosexuals, specifically on the subject of legality of union. Your points do not hold up to this criterion. While they are valid in one context, they are not in this arena.

 

A notable difference between the original question and the second is that now he changes the question from "viewing differently" to "denying rights to homosexuals". He restated the question a few other times, but that was mostly in line with his second question. If he had said I was right, but he meant to ask a different question, I would have had no problem with it. However, unless I am very much mistaken, changing the question to deny the validity of answers to the original question is called "moving the goal posts", even if the second question is what he meant to say.

 

As to the specific questions I asked doG, do you still want me to answer them individually? Someone else may have answered them by now. The triplets are intended to be a valid (though not necessarily good) argument with respect to iNow's original question, and the last one is related to my accusations of strawman arguments.

[ParanoiA]

waitforufo totally gets it. Nice post man.

 

As for Skeptic, it's seems obvious this particular exchange was about detail. And in a science forum that should have been reasonable to expect, no?

Edited November 15, 2008 by ParanoiA

[Pangloss]

No, I think all you've succeeded in doing is parsing to a very high level of detail that, incidentally, transitions opposing straw man arguments into valid opposing positions.

 

The state could certainly view homosexual marriages differently, just as it could view heterosexual marriages differently -- and old man and an 18-year-old girl, for example -- maybe there should be a law prohibiting that. How about 2nd cousins? There's no law in any state (even West Virginia) prohibiting anything farther away than 1st cousins.

 

Whether or not the law currently makes a distinction doesn't add validity to either "pro" or "anti" arguments.

[Mr Skeptic]

But in the end that's a strawman or it's moving the goalposts from Mr Skeptic there,

 

No, I only call strawman arguments, strawman arguments, and instances of moving the goalposts, moving the goalposts. If you care to point out any particular case where I called something that was not a strawman argument a strawman argument, or said someone was moving the goalposts when they were not, then I will apologize. Feel free to look anywhere on this the internet, if you can find one, not just in this thread. And everyone else is free to help him look. However, it might be a good idea to place it in a new thread if you do.

 

Good logic is one of the things I value most. So I find your accusation particularly insulting.

 

I have hardly ever accused anyone of strawmanning or moving the goal posts. You on the other hand, hand those accusations out like candy.

[iNow]

So, basically we've battled the last four pages of thread because I said "invalid" instead of "irrelevant?" Fine.

 

Replace the word valid with relevant and let's move on.

I'm still waiting for a relevant answer.

 

 

My question again, in chronological order:

Using the same logic, there is patently no legitimate overriding purpose independent of invidious sexual discrimination which justifies this classification of marriage only being allowed to be defined as between a man and a woman.

you (nor anyone on the pro-ban-gay-marriage side of the debate) have offered zero valid or feasible reasons why homosexual couples should be treated any differently than heterosexual couples... zilch, nada, naught, zip, zippo, diddly, no-thing.

I still have yet to see a single valid argument for why homosexual marriage should be viewed any differently whatsoever by the state than hetersexual marriage.

Even if stipulated that all of your proposals were valid, why should the state discriminate based upon ANY of those, especially since a union/marriage does not implicitly come with successful reproduction events?

Just so everyone knows' date=' this was NEVER my position. My position is to insist that the LAWS should show no differences in application.

 

 

Also - I am somewhat confident that Mr Skeptic was not espousing his own beliefs with those four points. He was, if I understand correctly, trying to offer a response to my request for valid reasons why the State should treat homosexual unions any different that heterosexual unions. I don't personally find the examples he shared very compelling, but I also don't think he's some monster who was expressing his own ideas on the matter.[/quote']

Just since it seems to bear repeating, there are zero valid reasons why homosexual unions should be treated any differently by the State than heterosexual unions.

Try to remember, I asked what valid reasons there were in favor of the State [/i']treating homosexual unions any differently than heterosexual unions.

I mean, seriously... why are either of those supposed to be granted different rights by the state than people like this...

<...>

The question was if there were valid reasons for the state to allow a right to heterosexuals and deny it to homosexuals, specifically on the subject of legality of union. Your points do not hold up to this criterion. While they are valid in one context, they are not in this arena.

<...>

I want someone on the "pro-ban" side to detail the reasons why the laws should be applied differently to homosexual couples, and why they should not share the same rights as heterosexual couples.

I don't know how much more clear I can make this, as I've said this explicitly in at least three different posts now.

Nobody is arguing that there are no differences. The argument is that the state has no basis to withhold rights based upon sexuality.

That would provide too easy of an out for the group arguing against the ability of homosexual unions. I think thread closure would rob them of the privilege to justify for everyone why the State has any basis whatsoever to grant or withhold rights based only upon sexuality.

My question:[/u'] What valid basis is there for the State to deny rights to homosexual couples which they allow to heterosexual couples?

 

 

Right. I guess I wasn't clear in my question, despite asking it in 11 distinct posts, and I was obviously shifting goal posts as demonstrated by the vast differences in tone and intent in the examples above. Got it.

 

Should have said relevant instead of valid. I'll be sure to remember that for next time.

 

 

Let's pick up and move forward now, perhaps from post #178.

Edited November 15, 2008 by iNow

[Mr Skeptic]

So, basically we've battled the last four pages of thread because I said "invalid" instead of "irrelevant?" Fine.

 

I was arguing because you were calling a valid argument invalid.

 

Right. I guess I wasn't clear in my question, despite asking it in 11 distinct posts, and I was obviously shifting goal posts as demonstrated by the vast differences in tone and intent in the examples above. Got it.

 

Right, and I chose to answer one of them. Answering one of them does not mean that I was answering all the different questions, regardless of how similar they may be. I was very clear on which one I was answering.

 

Perhaps we ought to let that part of that thread die.

 

Let's pick up and move forward now, perhaps from post #178.

 

Seems like a good idea to me.

[iNow]

Seems like a good idea to me.

Fantastic. So, since that post was in response to you, I guess the ball is in your court.

[Mr Skeptic]

I'm not sure how various interpretations of what the original authors may have meant would serve our purposes here. For example, I'm quite confident that the original authors never intended to include a union between a black and white person to be legally defined as "marriage" either, yet we allow that because we have progressed past such unwarranted discriminations and inequitable application of our laws based on genetic traits.

 

You almost concede this point yourself when you mention that women were not treated equally as humans under the original interpretations, yet (as we all see as blindingly obvious) that original interpretation and definition is not at all a valid reason to restrict the rights of women based on nothing more than their gender.

 

I agree with all of this. Definitions change, and so does the law. However, I don't see how a change in definition can imply a change in law. When I read old literature, I use the old definitions of words. When I read old laws, I use old definitions of words. When the definitions of words used in laws change, the laws remain the same. That is why for both cases above, new laws had to be made.

 

If you are suggesting that we can change laws by changing definitions, then I must disagree. It would be quite dangerous, essentially handing over constitutional laws to the whim of changing words. An on-topic example is how the word "gay" changed from "happy" to "homosexual" in a fairly short timespan. Now imagine if the constitution happened to have said we were entitled to life, liberty, and the pursuit of gayness.

 

Many pages ago in this thread I referenced the 14th amendment. There was good reason for that. doG has recently raised the point again.

 

Nevertheless, there are laws that favor a certain group of individuals more than others. For example, disability laws favor people with Down's Syndrome compared to others. However, the disability laws don't specifically mention Down's Syndrome. They apply equally to everyone. Likewise, laws about who can get married apply equally to everyone, even though the effects are quite different on homosexuals and heterosexuals. Whether this makes the 14th amendment irrelevant to them is more complicated.

 

I also agree with the other posters that those questions you've asked are entirely irrelevant to what sets law, so IMO they don't warrant response. I welcome further explanation of their relevance, and will honestly reconsider my present position if you first take steps clarify yours (i.e. how are those questions relevant to the dialog).

 

I think it best to drop them, or start a new thread. My intention was to make a quick counterexample to one of your questions. If I had known that it would make for pages of pointless arguing, I would have not said anything, or at least thought them through more before saying anything. As it was, in one of them I didn't even say what I meant to say.

 

Finally, in response to my comment regarding my own conversational intolerance, you responded that you were intolerant of lying. Where do you feel I have lied? I ask that you give a specific example, and allow me the opportunity to review my words and offer clarifiication.

 

I retract that, and apologize. It seems it was more a matter of confusion than malicious intent.

[iNow]

If you are suggesting that we can change laws by changing definitions,

No, not at all. I understood your argument to be that:

 

If you can show that the word "marriage" meant, to the people who originally wrote marriage laws, included both homosexual and heterosexual union, then I will change my mind on this matter.

 

That prompted my point about the definitions of words changing often, and how it is not unprecendented that the original intent is no longer the proper one to use with laws.

 

This is why I pointed to the 14th amendment, specifically the equal protection clause. It is not appropriate for laws and rights to be restricted based on race, gender, and (in this case) sexuality.

 

 

Nevertheless, there are laws that favor a certain group of individuals more than others. For example, disability laws favor people with Down's Syndrome compared to others. However, the disability laws don't specifically mention Down's Syndrome. They apply equally to everyone.

This isn't a relevant point. First, I'm not entirely sure what Down's Syndrome has to do with anything, but you obviously have a specific understanding on this matter (which I clearly am not aware of) since you've used the example more than once.

 

 

With that said, the reason it's not a relevant point is because the laws to which you refer are explicity for the purpose of ensuring equal applicability of the said laws to all persons.

 

That actually speaks more in favor of the argument I've been making this entire thread. The right of state recognized ("legal") marriage should apply equally regardless of sexuality.

 

 

Likewise, laws about who can get married apply equally to everyone, even though the effects are quite different on homosexuals and heterosexuals.

See, this is the crux of it. I know what you're saying (see my "eat anything you want, as long as it's beef" analogy, which Saryctos rightly corrected me on).

 

You appear to be suggesting that seperate, but equal is okay. Your argument seems to be "The law says black people can't eat here, so it applies equally to all people, whether they are black or white." I'm not saying your point is invalid, I'm saying it's not relevant, nor is it based on any reasonable explanation.

 

The law says state recognized unions must be between one man and one woman. I have yet to see a single relevant explanation for why this is supposed to be anything more than unecessary and bigotted discrimination. There is no harm being done to anyone by allowing two people of the same gender to be allowed legal recognition of union, so the restriction of these rights cannot be justified on the basis of protecting others.

 

Yes, the law that two people of the same gender cannot marry applies equally to everyone, I stipulate that. The point such an approach misses, however, is that the law itself is wrong. See analogy above about "no black people can eat here, and that law applies equally to people of all skin colors."

 

 

As it was, in one of them I didn't even say what I meant to say.

Me too. I chose my word poorly when I said your argument was invalid.

 

 

I retract that, and apologize. It seems it was more a matter of confusion than malicious intent.

Ah... Progress.

[Pangloss]

No, I only call strawman arguments, strawman arguments, and instances of moving the goalposts, moving the goalposts.

 

No, you're elevating the other side's straw men by responding with straw men of your own, and ditto with moving the goalposts. Not one person here ever stated that, for example, two men can have a baby. For you to ask for that question to be clearly answered is, in fact, a straw man. And you repeated that list two times.

 

Two wrongs don't make a right.

 

 

The law says state recognized unions must be between one man and one woman. I have yet to see a single relevant explanation for why this is supposed to be anything more than unecessary and bigotted discrimination. There is no harm being done to anyone by allowing two people of the same gender to be allowed legal recognition of union, so the restriction of these rights cannot be justified on the basis of protecting others.

 

He has stated what constitutes harm in his opinion, and you don't like what he considered to be harm. That's your opinion, not objective fact. What would be more objective and congenial would be to say that what harm has been stated is not sufficient to warrant not having these changes in law.

 

 

---

line[/hr]

 

I'll give you guys one more chance to find some common ground and closure on this issue.

[iNow]

He has stated what constitutes harm in his opinion, and you don't like what he considered to be harm. That's your opinion, not objective fact. What would be more objective and congenial would be to say that what harm has been stated is not sufficient to warrant not having these changes in law.

That's fair, but I am pretty sure he did not intend to present it as if it were some harm. He was responding with differences, which he and I both had agreed to leave in the graveyard of previous posts. Remember, "ah... progress..."

 

Either way, I've seen your repeated warnings. Either close the thread, or don't. I am not a kindergartner who needs reminding every 3 minutes, and I think the change in my tone since your original request is more than obvious.

[ParanoiA]

You know, Skeptic's take on law and intent of the writing is entirely in line with the duty of the Judicial branch. Their duty, as has been noted as recently as the amendment 2 re-interpretation not too long ago, is to interpret the intent of the original verbiage, the intent of the law. Not to re-interpret it using changes in the lexicon. That's called legislating from the bench.

 

I think he's absolutely spot on that we're in dire need here of new laws; not legislation from the bench in the form of applying modern day changes to the definition of "marriage" and pretend as if that was the intent of those that wrote that law. Even if their intent was malicious bigotry, such as the 3/5ths compromise, it is still the intent of the law.

 

With that in mind, I think the argument has now shifted to the particulars of the structure of law. Sure we all agree that denying the right for homosexual unions is absolutely wrong and needs to be corrected, but that doesn't mean the detail of how law is written and applied is to be ignored. We are a constitutional republic and we are required to revere written law. We absolutely must be pedantic about the verbiage, the specific rights being afforded or restricted, whether we're granting new rights or restoring dated oppression.

 

That's all just the particulars of how we negotiate setting this wrong, right, in our particular form of government.

 

 

_______

 

Edit: Something else that's been bugging me about all this...don't hospitals choose visitation qualifications, over law? The marriage license serving as the "proxy" for the bedside spouse is a hospital initiated qualification isn't it?

 

And tax laws that reward marriage...aren't those just as disproportionate as giving tax breaks to those with kids? "Discrimination" might be an effective argument against rewarding marriage, or to start rewarding other kinds of civil unions, which I would fully support, but nonetheless isn't that a tax law issue?

 

It seems like what we have here is a moral conclusion (marriage), taken for granted, applied and ingrained into so many laws that we're basically stuck with a tough decision: Do we simply redefine the word "marriage" to include same-sex couples (which won't require massive law updates), or do we go back and rewrite all of those laws that discriminately reward marrige (as it's original meaning, between a man and a woman) and update them to grant the same reward to civil unions?

 

I'm obviously for the latter. That way we can also do away with the concept of "marriage" and instead introduce the civil union for all american citizens. The word marriage should not even appear in the written law unless its cancelling the term.

Edited November 15, 2008 by ParanoiA

[waitforufo]

You know, Skeptic's take on law and intent of the writing is entirely in line with the duty of the Judicial branch. Their duty, as has been noted as recently as the amendment 2 re-interpretation not too long ago, is to interpret the intent of the original verbiage, the intent of the law. Not to re-interpret it using changes in the lexicon. That's called legislating from the bench.

 

I think he's absolutely spot on that we're in dire need here of new laws; not legislation from the bench in the form of applying modern day changes to the definition of "marriage" and pretend as if that was the intent of those that wrote that law. Even if their intent was malicious bigotry, such as the 3/5ths compromise, it is still the intent of the law.

 

Proposition 8 was created to reverse legislation from the bench. The outcome of the election with regard to proposition 8 should be of no surprise. The people don't like it when courts invent new laws. The people consider it dictatorial and therefore contrary to our democratic republic. Laws are best created through the legislative process. That way the people consider themselves participants in the argument, even when they lose the debate. They at least feel that they were heard or that their arguments were represented.

 

The problem with representative legislation however is that it can be painfully slow. Every now and then the system needs a kick in the pants. Bench legislating is one method of providing this kick. At the state level, the initiative process is another method. When the legislature is moving too slow or contrary to the will of the people, bench legislating and initiatives force the legislative process to respond. Bench legislating and initiatives are however blunt instruments and there impact does not always produce the desired result. In my opinion the desired result would be moving the will of the people to understand that they are best served by just results.

 

In the case of proposition 8, the courts legislated from the bench, and the people responded by countering this bench legislation by the initiative. These counter actions have, as evidenced in this form topic, increased the level of public debate on the topic. The gay community and those that support it have also increased their level of public protest. So, two kicks in the pants have been delivered. Perhaps the issue will now be properly decided by legislative means. That however remains to be seen.

 

I recall a quote that laws are a bit like sausage, delicious, but you don't want to see it made.

[iNow]

You know, Skeptic's take on law and intent of the writing is entirely in line with the duty of the Judicial branch. Their duty, as has been noted as recently as the amendment 2 re-interpretation not too long ago, is to interpret the intent of the original verbiage, the intent of the law. Not to re-interpret it using changes in the lexicon. That's called legislating from the bench.

 

I think he's absolutely spot on that we're in dire need here of new laws; not legislation from the bench in the form of applying modern day changes to the definition of "marriage" and pretend as if that was the intent of those that wrote that law.

 

<...>

 

We are a constitutional republic and we are required to revere written law. We absolutely must be pedantic about the verbiage, the specific rights being afforded or restricted, whether we're granting new rights or restoring dated oppression.

 

That's all just the particulars of how we negotiate setting this wrong, right, in our particular form of government.

I don't disagree with you.

 

What I seem to be missing from your argument, however, is how any of this is not already covered by law... specifically, Section 1 of the 14th amendment, usually referred to as the Equal Protection Clause.

 

 

 

http://docs.law.gwu.edu/facweb/jsiegel/home/constitution.htm

AMENDMENT XIV

 

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

 

http://en.wikipedia.org/wiki/Equal_protection_clause

More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state leaders, and governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws.

[waitforufo]

I don't disagree with you.

 

What I seem to be missing from your argument, however, is how any of this is not already covered by law... specifically, Section 1 of the 14th amendment, usually referred to as the Equal Protection Clause.

 

 

 

http://docs.law.gwu.edu/facweb/jsiegel/home/constitution.htm

AMENDMENT XIV

 

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

 

http://en.wikipedia.org/wiki/Equal_protection_clause

More concretely, the Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state leaders, and governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws.

 

I'm not sure if you pointed out Article IV, Section 1 of the constitution, commonly known as the Full Faith and Credit Clause in a previous post but it applies to marriage and has been constitutional law from the start.

 

Well, up until the Defense of Marriage Act, or DOMA [http://en.wikipedia.org/wiki/Defense_of_Marriage_Act]. This act has been challenged but the Supreme Court has not taken up any of the cases. As long as this act is law, the federal government does not require states to recognize gay marriages granted in other states. Personally, I don’t see this law as constitutional, but as I said the Supreme Court has had the opportunity to consider the law and has so far not done so.

[ParanoiA]

I don't disagree with you.

 

What I seem to be missing from your argument' date=' however, is how any of this is not already covered by law... specifically, Section 1 of the 14th amendment, usually referred to as the Equal Protection Clause.[/quote']

 

Well, I certainly don't disagree with you either. I'm just on the fence on that point. Clearly, you're right that the Equal Protection Clause would seem to cover this. My hesitation comes from the concept of "marriage" being a privilege or right.

 

There's something wrong here that I can't quite put my finger on...

 

The state issues something called a "marriage license". With this license, other institutions choose to revere this and grant privileges based on it. That includes business as well as downstream government services and etc. So are those services violating the 14th amendment? Since government is free to apportion tax liability disproportionately, I'm not sure they are in violation, in terms of tax law. Business is certainly free to grant privilege for any arbitrary thing they want - 'red headed people get half-off ebony hair dye'.

 

This would be similar to the state issuing a license to carry a pistol, and with that license, government gives tax breaks and etc. The license itself is not a privilege, it's the downstream institutions that are choosing to regard this license with privilege. Then the rifle folks get upset and demand equal protection.

 

I know it's not exactly like that, I'm just saying that's why I'm not on board on that point, just yet. Clearly there's some legal privilege provided: inheritance, I think you mentioned 401K and retirement funds, and a bunch of other things that escape me at the moment. But thus far, it seems to be those institutions that are granting privilege for attaining some arbitary document by the state.

 

So, I'm still chewing on it. I don't know about anyone else, but I think this has turned into an interesting thread now. I've always supported civil unions in any combination, philosophically, but I can't say I've ever really considered the structure of law and the connection to rights and privilege. It's not an open and shut issue like the philosophical part is.

[iNow]

I'm not sure if you pointed out Article IV, Section 1 of the constitution, commonly known as the Full Faith and Credit Clause in a previous post but it applies to marriage and has been constitutional law from the start.

 

Well, up until the Defense of Marriage Act, or DOMA [http://en.wikipedia.org/wiki/Defense_of_Marriage_Act]. This act has been challenged but the Supreme Court has not taken up any of the cases. As long as this act is law, the federal government does not require states to recognize gay marriages granted in other states. Personally, I don’t see this law as constitutional, but as I said the Supreme Court has had the opportunity to consider the law and has so far not done so.

 

Thank you, and, no, I hadn't yet considered the Full Faith and Credit clause in Section 1 of Article IV.

 

So, thus far, using our existing constitutional and legal structure to argue against the passage of Prop 8, we have Section 1 of the 14th amendment (the Equal Protection Clause) and Section 1 of Article 4 (the Full Faith and Credit Clause).

 

 

http://en.wikipedia.org/wiki/Full_faith_and_credit

Article IV, Section 1 of the United States Constitution, commonly known as the Full Faith and Credit Clause, addresses the duties that states within the United States have to respect the "public acts, records, and judicial rulings" of other states.

 

<...>

 

Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the US and it Territories and Possessions as they have by law or usage in the courts of such State, Territory or Posssession from which they are taken.

 

 

 

On top of that, while reading the article on Lawrence v. Texas, and Scalia's mention of how the Full Faith and Credit clause could overturn the Defense of Marriage Act (DOMA), I read a comment which I found thought provoking.

 

The comment was made in the context of decisions regarding the reversal of sodomy laws in Texas, and laws against the legal sale of sex toys in Alabama.

 

The discussion arose about these laws, and how there was no harm being done to others, and that this strongly suggests that the only justification for those laws was an invocation of morality. There was no demonstration of any actual harm, ergo any laws based on popular morality alone would be best analyzed under the Establishment Clause of the constitution instead of due process.

 

 

http://en.wikipedia.org/wiki/Establishment_Clause

The Establishment Clause of the First Amendment refers to the first of several pronouncements in the First Amendment to the United States Constitution, stating that "Congress shall make no law respecting an establishment of religion". Together with the Free Exercise Clause, ("... or prohibiting the free exercise thereof"), these two clauses make up what are commonly known as the "religion clauses" of the First Amendment.

 

The establishment clause has generally been interpreted

to prohibit

1) the establishment of a national religion by Congress, or 2) the preference of one religion over another or

the support of a religious idea with no identifiable secular purpose

.

 

 

 

I found that fascinating, as these laws banning same sex marriages are truly supported by nothing more than personal morality, they do NOT have any identifiable secular purpose, and that seems counter to the spirit of of the Establishment Clause... the very first amendment to our constitution.

 

 

I need to keep reading, but at this point, I am abundantly confident that our existing constitutional structure is MORE than enough to strike down Prop 8, as well as the mini-DOMA laws now on the books in more than 39 states, all without the need of redefining words or writing new laws.

Edited November 15, 2008 by iNow

[Riogho]

I have reason to be skeptical of the arguments of Mr. Skeptic.

[Mr Skeptic]

This is why I pointed to the 14th amendment, specifically the equal protection clause. It is not appropriate for laws and rights to be restricted based on race, gender, and (in this case) sexuality.

 

This is why I am asking whether gay marriage was already a right that they are trying to take away, or whether it is a new right that needs to be granted. As I understand it, if it wasn't already a right, then the 14th might not apply.

 

This isn't a relevant point. First, I'm not entirely sure what Down's Syndrome has to do with anything, but you obviously have a specific understanding on this matter (which I clearly am not aware of) since you've used the example more than once.

 

Because people's with Down's Syndrome are treated differently due to their genetics, and everyone is OK with that. Sometimes it really is a good idea to treat people differently, even if it is due to their genetics. And it doesn't seem to violate the 14th amendment to treat them differently.

 

That actually speaks more in favor of the argument I've been making this entire thread. The right of state recognized ("legal") marriage should apply equally regardless of sexuality.

 

It does.

 

See, this is the crux of it. I know what you're saying (see my "eat anything you want, as long as it's beef" analogy, which Saryctos rightly corrected me on).

 

You appear to be suggesting that seperate, but equal is okay. Your argument seems to be "The law says black people can't eat here, so it applies equally to all people, whether they are black or white." I'm not saying your point is invalid, I'm saying it's not relevant, nor is it based on any reasonable explanation.

 

It seems to work for Down's Syndrome and laws about disability.

 

The law says state recognized unions must be between one man and one woman. I have yet to see a single relevant explanation for why this is supposed to be anything more than unecessary and bigotted discrimination. There is no harm being done to anyone by allowing two people of the same gender to be allowed legal recognition of union, so the restriction of these rights cannot be justified on the basis of protecting others.

 

I'm pretty sure that the law is about marriage, an not unions. And once again, this is why the definition of marriage is important.

 

Yes, the law that two people of the same gender cannot marry applies equally to everyone, I stipulate that. The point such an approach misses, however, is that the law itself is wrong. See analogy above about "no black people can eat here, and that law applies equally to people of all skin colors."

 

If the law is wrong, then we need to change it. But the change must be done by the legislative process, not by changing the meaning of words.

[iNow]

Because people's with Down's Syndrome are treated differently due to their genetics, and everyone is OK with that. Sometimes it really is a good idea to treat people differently, even if it is due to their genetics. And it doesn't seem to violate the 14th amendment to treat them differently.

Are people with Down's Syndrome restricted by the state from having a recognized marriage? If not, then it does not apply here.

 

"Treating people differently" and "restricting someones rights based solely on their genetics" are not equivalent. I only bring this up since you've made clear how important semantics are to you.

[Mr Skeptic]

No, you're elevating the other side's straw men by responding with straw men of your own,

 

If you'll check closely, then you will see that they were saying that was wrong. Yet as you admit, I was not. So, I was trying to force them to admit as much, by asking them exactly what portion of my statements and chain of logic was wrong.

 

The reason that my questions look like strawmen is because their answers were strawmen. Therefore, implying that they were answering my actual statements when they were instead strawmaning them, I guess you could call that a strawman of sorts.

 

and ditto with moving the goalposts.

 

How so? I stated quite clearly the question I was answering. I restated it repeatedly, for those who weren't paying attention, and used the same exact words and even a link to iNow's post. I was ensuring that the goalposts stayed put while others were trying to move them. Remember, I'm the one who chose the goalposts.

 

Not one person here ever stated that, for example, two men can have a baby.

 

Exactly. Instead, they just said that it was wrong/invalid. The questions were in triplets, and they could disagree with any of the three to invalidate my answers. The implication was not that they disagreed with all of them, only that they disagreed with one and I wanted to see which one.

 

Are people with Down's Syndrome restricted by the state from having a recognized marriage? If not, then it does not apply here.

 

"Treating people differently" and "restricting someones rights based solely on their genetics" are not equivalent. I only bring this up since you've made clear how important semantics are to you.

 

In this case, though, the discrimination would be reversed. The governemnt gives Down's Syndrome people more of my money, as extra help. I am not against this, but I thought it would be a good example. Perhaps a better example is people who's genetics predispose them to criminal behavior: they have many of their rights restricted.

 

And, since you are being pedantic, the state is not denying homosexuals from having a heterosexual marriage, and does not allow heterosexuals to have a homosexual marriage, ie they are the same in the eyes of the law. My intention in pointing out Down's Syndrome is that some people benefit more from a law than others, and some loose out (those who's tax money is taken to pay for those with disabilities).

 

Again, it comes down to what marriage means and whether gays already had the right to gay marriage.

Edited November 16, 2008 by Mr Skeptic
multiple post merged

[Pangloss]

Well what happened was this:

 

You: Two men can't have a baby, so that's a clear difference.

They: Wrong, they can adopt. (Clearly a logical error in the first word, but surely a reasonable point.)

You: Are you saying two men can have a baby? (Clearly you know full well what they said, and you're throwing that first word's technical incorrectness back in their faces in order to prove a point.)

 

That's called making two wrongs a right. It didn't work, we straightened it out, and now we're moving on. If you want to talk about it further, send me a PM.