Drama Over Obama Inaugural Prayer

[Mr Skeptic]

If marriage recognition by the state was already inherent to be between a man and a woman in the existing law (as you and many others continue to suggest), then why did a new law have to be passed seperately defining it as such?

 

There clearly would have been no reason or need for Prop 8 had the existing definition already been so clear and straight forward about being between one man and one woman as you (and others) suggest.

 

Proposition 8 (or the opposite, one defining marriage to include gay marriage wrt California Law), was needed because the meaning of the law was being constantly challenged. So it had to be clarified one way or the other.

 

The very fact that Prop 8 was needed at all seriously deteriorates the merit of that suggestion/assertion, and I suggest you and others either a) recognize this inherent contradiction and stop arguing on that basis, or

 

No thanks. If you don't like the law, the burden of proof is on you to show that it is wrong.

 

b) demonstrate more fully that the existing definition was clearly to suggest one man/woman only, and explain why Prop 8 was needed at all if that was the case.

 

For that, one would have to ask the Founding Fathers, and/or the folks who passed the relevant amendment.

 

As for the Adelphopoiia Rite that Prof. John Boswell described, that seems to be more of a brotherhood than a marriage. While what would now be called gay marriage has been performed at various times in history, the quote you and Mokele shared doesn't say it was called marriage, though Boswell himself calls it marriage. The rites were done, but were they called marriage?

[iNow]

Nobody has answered my point with anything except blanket dismissal or red herring questions.

 

Prove that marriage has always been between one man and one woman, and that the law made this explicitly clear. If you cannot, then your argument fails. If you can, then there was never a need for Prop 8 to begin with, so your argument again fails.

 

This is an inherent contradiction in that position that I'd like to see addressed. It's not about me "not liking the law" Mr. Skeptic, it's about me challenging that the law actually says what you say it does. You keep saying the marriage law means something specific, but you're failing to support that position and also failing to notice how inconsistent it is with the reality that Prop 8 was needed at all to make such a definition codified.

 

 

If marriage recognition by the state was already inherent to be between a man and a woman in the existing law (as you and many others continue to suggest), then why did a new law have to be passed seperately defining it as such?

 

There clearly would have been no reason or need for Prop 8 had the existing definition already been so clear and straight forward about being between one man and one woman as you (and others) suggest.

 

The very fact that Prop 8 was needed at all seriously deteriorates the merit of that suggestion/assertion, and I suggest you and others either a) recognize this inherent contradiction and stop arguing on that basis, or b) demonstrate more fully that the existing definition was clearly to suggest one man/woman only, and explain why Prop 8 was needed at all if that was the case.

[ParanoiA]

Prove that marriage has always been between one man and one woman, and that the law made this explicitly clear. If you cannot, then your argument fails. If you can, then there was never a need for Prop 8 to begin with, so your argument again fails.

 

That's not a fair premise since if all laws were "explicitly clear" we wouldn't need a Judical Branch to interpret them. The Ban was passed because there IS enough wiggle room to achieve "legislation from the bench" with the right judicial atmosphere - at least from the point of view of those who felt it necessary to pass such a thing.

 

I'm not sure why you think we HAVE to defend the ban in order to prove what marriage meant. Redundancy is not proof of inadequacy.

[iNow]

...if all laws were "explicitly clear" we wouldn't need a Judical Branch to interpret them. The Ban was passed because there IS enough wiggle room to achieve "legislation from the bench" with the right judicial atmosphere...

 

Ding ding ding... We have a winner, folks!

 

 

My point was to cut off the "original intent was clearly one man and one woman" tripe that is being spouted and not defended in any way. The assertion that the existing laws were always meant to marry only people with different genitals keeps being made, as if it's some accepted fact, yet it's not. The fact of the matter is that the laws had wiggle room, so the argument being made about it's original intent is both null and void.

 

 

Pangloss - To address your question, the way existing laws were framed, there really is no reason that they should not be allowed to occur right now. The only thing standing in their way are the voices and obstacles of the ignorant.

[Mr Skeptic]

Nobody has answered my point with anything except blanket dismissal or red herring questions.

 

Prove that marriage has always been between one man and one woman, and that the law made this explicitly clear. If you cannot, then your argument fails. If you can, then there was never a need for Prop 8 to begin with, so your argument again fails.

 

This is an inherent contradiction in that position that I'd like to see addressed. It's not about me "not liking the law" Mr. Skeptic, it's about me challenging that the law actually says what you say it does. You keep saying the marriage law means something specific, but you're failing to support that position and also failing to notice how inconsistent it is with the reality that Prop 8 was needed at all to make such a definition codified.

 

I don't need to support that position, since it is the law and doing nothing will result in the law remaining. This is similar to the status quo in science. If you want to change the status quo, then you need to take action, whereas inaction results in the status quo remaining.

 

Also, laws that are not needed are passed all the time. In fact, I think that most laws that are passed have no effect (other than clarification) because the things stated in it are covered by previous laws. I think we could get rid of maybe 90% of the laws with little effect. The necessity of Proposition 8 can be seen in people like iNow, who without such clarification insist that the law means something different.

 

Again, the burden of proof is on you. If you can show that marriage as meant by the people who wrote the law included gay marriage, feel free to share. Maybe you could even show it to the Supreme Court so they know to strike down Proposition 8. Or you could leave the burden of proof to one of the lawyers trying to dismiss Proposition 8.

[Reaper]

Be careful, choosing legal laws in society aren't like deciding which scientific laws are true, Mr.Skeptic. Unlike science, marriage and religions and cultural norms are entirely human constructs; they have no meaning beyond what we as a society give them. The burden of proof need not apply in such discussions...

[Mr Skeptic]

The fact of the matter is that the laws had wiggle room, so the argument being made about it's original intent is both null and void.

 

Not necessarily. It could just be that some people are too dull to understand, or even deliberately misinterpret, what the law meant.

[iNow]

Not necessarily. It could just be that some people are too dull to understand, or even deliberately misinterpret, what the law meant.

 

Alluded character attacks and invectives aside, you continue to posit some solid, objective meaning of marriage being between one man and one woman ever existed without doing a thing to demonstrate, support, or prove this.

[Mr Skeptic]

Alluded character attacks and invectives aside, you continue to posit some solid, objective meaning of marriage being between one man and one woman ever existed without doing a thing to demonstrate, support, or prove this.

 

Not so much. You insist that opponents of gay marriage have nothing but bias, ignorance, etc. to stand on, and as such preemptively take on the burden of proof to provide a counterargument to any argument anyone might make, such as the one that gay marriage is an oxymoron. If you cannot back up your statement, maybe you should retract it.

[Reaper]

No, of course not. But it might unnecessarily spend huge amounts of political capital that could be better used elsewhere, perpetuate a bitter, partisan atmosphere, and ultimately end up being counterproductive to the intended goal.

 

Since when have the signing of laws, or the abolition thereof, didn't go in that direction anyway?

 

If you go down into the deep South there are still quite a few people who don't believe in racial equality. There are still untold numbers of people who don't believe in women's rights either, or in religious tolerance. But the fact that the majority hasn't supported that didn't stop us from enforcing those laws anyway.

 

I'm quite surprised that almost no one on this site actually understands this, but one of the main goals of the constitution was to protect the minority from the tyranny of the majority.

 

Whether or not the majority either don't support it, or are indifferent to it (where I mostly stand on this issue BTW), is a moot point. It is best not to appeal to majority rules or to partisan allegiances when trying to decide on people's rights.

 

The question over here really is, do you actually think we should deny same sex couples the right, or the recognition of marriage on principle? If not, then the support of Prop. 8 (or trying to defend those who do support it) speaks of hypocrisy, while if you do then you are forced to ask yourself why you are concerned with the affairs of other people in the first place...

[Pangloss]

Pangloss - To address your question, the way existing laws were framed, there really is no reason that they should not be allowed to occur right now. The only thing standing in their way are the voices and obstacles of the ignorant.

 

I empathize with this particular instance of you logically reasoning your opponents into ignorant obscurity (wink), but I would suggest that, at least in this case, it's not a very useful determination. But hey, maybe I'm wrong.

Edited December 24, 2008 by Pangloss

[iNow]

Not so much. You insist that opponents of gay marriage have nothing but bias, ignorance, etc. to stand on, and as such preemptively take on the burden of proof to provide a counterargument to any argument anyone might make, such as the one that gay marriage is an oxymoron. If you cannot back up your statement, maybe you should retract it.

 

Mr Skeptic - I am confused by your request, as I am not presently making statements or arguments requiring support, ergo I do not see any responsibility for me to retract or validate anything. My last several points have been in opposition to your position, where I am showing that you have yet to defend your statement that marriage in the legal sense has always meant to be between one man and one woman. This was your argument, and I am simply asking you to support that position, to demonstrate it as valid somehow.

 

I am uncertain why you feel the need to displace the burden of proof on to me, since I have not made any claims.

 

So, two things. One, please prove that marriage has always been defined as between one man and one woman, as this is the footing on which your position rests. Two, please clarify which statement I've made that you want me to support, and I will.

[Mr Skeptic]

Mr Skeptic - I am confused by your request, as I am not presently making statements or arguments requiring support, ergo I do not see any responsibility for me to retract or validate anything. My last several points have been in opposition to your position, where I am showing that you have yet to defend your statement that marriage in the legal sense has always meant to be between one man and one woman. This was your argument, and I am simply asking you to support that position, to demonstrate it as valid somehow.

 

First of all, I'm not saying that marriage has historically meant only between a man and a woman (it might have, or not -- but for sure most marriages were heterosexual, and that is what most people think of when they think of marriage). That is mostly interesting from a historical context. What matters is how marriage was defined by the people who made the laws concerning marriage. This is because that is the definition that the law means when it says marriage.

 

Some simple evidence to support that is that there were no gay marriages performed at that time, despite the presence of gays. Also, the dictionary definition at the time. The lack of any evidence that marriage included same sex unions is further evidence that it did not. The most likely explanation for the lack of specificity in the law that marriage be between a man and a woman, is that the idea of same-sex marriage would not even have occurred to them.

 

I am uncertain why you feel the need to displace the burden of proof on to me, since I have not made any claims.

 

I'd be much more willing to take the burden of proof, even if it is not mine, if I thought that you would listen to what I offered instead of trying to roast me for it. In any case, what I have been objecting to in all these gay rights threads were your statements that there are no legitimate reasons to oppose gay marriage, or that those who do are intolerant, biased, ignorant, etc. You've never proved those statements, nor will you ever prove them, yet you continue to repeat them. If I were to take the burden of proof, you would forgo any attempt to prove or recant them, instead focusing on what I said.

 

Another reason is that inaction will result in the status quo -- so unless opponents of Proposition 8 take on themselves the burden of proof, nothing will change.

 

So, two things. One, please prove that marriage has always been defined as between one man and one woman, as this is the footing on which your position rests.

 

Again, if you want to insist that opponents of gay marriage have no legitimate objections to it, then you have the burden of proof to show that any arguments against it are invalid or based on intolerance, bias, ignorance, or whatever else you were saying.

 

Two, please clarify which statement I've made that you want me to support, and I will.

 

One example is the one that Pangloss singled out, and I think that is the latest one:

Pangloss - To address your question, the way existing laws were framed, there really is no reason that they should not be allowed to occur right now. The only thing standing in their way are the voices and obstacles of the ignorant.

 

If you like, I could dig up other similar ones and give you the choice of any particular one you would like to support or recant.

[Pangloss]

Well setting aside the obvious effort to ridicule the opposition, I think he's asking a reasonable question, which is whether tradition, predisposition and precedent is the only valid legal argument that should be allowed on this issue.

 

Put another way, is it legally reasonable for individuals to go before a judge and ask for a marriage that doesn't fall under the narrow conditions of "man and woman", and if not, why not?

 

Or are we all agreed at this point that the law doesn't specify man-and-woman, and that the reason it's not allowed is pretty much a matter of judicial interpretation in the favor of conservatives?

[Sisyphus]

Since when have the signing of laws, or the abolition thereof, didn't go in that direction anyway?

 

If you go down into the deep South there are still quite a few people who don't believe in racial equality. There are still untold numbers of people who don't believe in women's rights either, or in religious tolerance. But the fact that the majority hasn't supported that didn't stop us from enforcing those laws anyway.

 

That’s true, and I don’t think that was wrong. It is definitely not my position that we should only take the most popular stances on issues, so as to avoid offending people. That, obviously, would be ridiculous.

 

What I’m talking about is pointlessly antagonizing the opposition. The cold, hard, fact is that a strong majority of Americans disagree with us, and there won’t be any lasting change until that is reversed. This is a democracy, not a war, and “battles” are won by convincing people. Shrilly demonizing the people you are trying to convince is highly counterproductive, and whether they deserve it is irrelevant. The best ways to convince people are to stay civil, to demonstrate that you understand and sympathize with their position (but still believe the opposite), and to lead by example. And offer them something worthwhile. MLK offered a dream of healed wounds and a unified nation. The Black Panthers just promised retribution. How was a white person supposed to respond to that? The difference is between helping your side “win” by dominating the other side, or by converting them. (A contemporary example: Iraq. We can patrol their streets and keep them more or less under control indefinitely, but wouldn’t it be preferable if they didn’t need foreigners in humvees?)

 

So yes, protect the minority from the tyranny of the majority. I agree. What I’m talking about is working towards a time when that protection won’t be needed.

[ParanoiA]

Ding ding ding... We have a winner' date=' folks!

 

 

My point was to cut off the "original intent was clearly one man and one woman" tripe that is being spouted and not defended in any way. The assertion that the existing laws were always meant to marry only people with different genitals keeps being made, as if it's some accepted fact, yet it's not. The fact of the matter is that the laws had wiggle room, so the argument being made about it's original intent is both null and void.[/quote']

 

The bell dinger has been fired.

 

You left off my condition - that the wiggle room was a perception by "at least from the point of view of those who felt it necessary to pass such a thing." Not by me. My opinion is that it's clearly a hetero definition. It still is. And likewise, I haven't heard you or anyone else refute the current lexicon still using that qualifier. If that's what the word means, then that's what it means.

 

That is mostly interesting from a historical context. What matters is how marriage was defined by the people who made the laws concerning marriage. This is because that is the definition that the law means when it says marriage.

 

Obviously, we agree on this. So, let me ask this: What if iNow were to lobby the lexicographers to redefine the word to exclude the male-female qualifier, and then successfully convince congress to pass a law (instead of courtroom antics) that retroactively applies this new definition to any laws containing that language?

 

Wouldn't that be respectful of the legislative process? I'm thinking that the meaning of words do change, so there must be some method by which we can "update" our laws deliberately through Congress, while not endangering our Constitution by abusing the Judical branch.

Edited December 24, 2008 by ParanoiA

[Dak]

I'm thinking that the meaning of words do change, so there must be some method by which we can "update" our laws deliberately through Congress, while not endangering our Constitution by abusing the Judical branch.

 

umm... but (re-)interpreting the meaning of legislature in such a way that is consistant with current views and the current interpretation of other laws, espescially constitutional laws, is the entire point of the judiciary...

 

most countries consider seperating the task of legislating from the task of interpreting legislature to be a neccesary check-and-balance (elsewize, it'd be one body that sets it's own rules and then has to make the call as to wether it's following it's own rules).

 

re: some kind of non-marriage 'civil union', that's how it's done in the UK:

http://www.thesite.org/sexandrelationships/couples/marriage/planningacivilpartnership

[ParanoiA]

umm... but (re-)interpreting the meaning of legislature in such a way that is consistant with current views and the current interpretation of other laws' date=' espescially constitutional laws, is the entire point of the judiciary...

 

most countries consider seperating the task of legislating from the task of interpreting legislature to be a neccesary check-and-balance (elsewize, it'd be one body that sets it's own rules and then has to make the call as to wether it's following it's own rules).[/quote']

 

Yeah I agree. I'm not sure what you're taking issue with. My whole issue here has been to refuse to allow the Judiciary to redefine what words mean; to block legislating from the bench. So, my follow up is, what if we redefine words through the Legislative Branch? (Of course, I threw in the lexicographical compliment to avoid an argument that puts the lexicon at odds with the legislature, which could be interesting, but a bit much at the moment).

 

Edit: Just so we're clear, our Judicial Branch is supposed to interpret the intent of laws as they are written, which requires them to be reviewed in the context of the time they were written, and etc. So our Judicial isn't supposed to re-interpret laws using updated terminology. I don't know if that changes your point or not, but I wanted to be sure we're on the same page.

[iNow]

Some simple evidence to support that is that there were no gay marriages performed at that time, despite the presence of gays. Also, the dictionary definition at the time. The lack of any evidence that marriage included same sex unions is further evidence that it did not. The most likely explanation for the lack of specificity in the law that marriage be between a man and a woman, is that the idea of same-sex marriage would not even have occurred to them.

 

First, I’d like to point out that you have not yet defended your position, instead you have relied on your inability to defend it as a reason to hold it (“the lack of evidence indicates that…”). As most will acknowledge, lack of evidence is not evidence of lack, and no reasonable critical thinking human being should accept your hand waving as a valid manner of supporting your assertions.

 

However, you did finally provide some reasons for your position, and I appreciate that. Quoted above, you’ve raised an interesting point, but I don’t think it helps your position. Again, you seem to be arguing that marriage laws meant “between one man and one woman," but I suggest that this position is untenable, and hence is a specious argument.

 

 

Supporting this point, I cite the comments of Justice Kennedy in Lawrence v. Texas, where he provided the following opinion:

 

The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (" The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions").

 

 

To further the heart of my intended point, I direct you toward the 9th Amendment to the Constitution

 

Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.

<…>

Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Earl Warren and Justice William Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (1965):

The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.... I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government....While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.

 

A summary of the 9th amendment suggests that:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

 

For this reason, the fact that you are neither able to defend your assertion that the laws original intent was to restrict marriage to one man and one woman nor demonstrate that they explicitly restricted marriage from people of the same gender defeats your suggestion that it is those in favor of the allowance of same sex union who hold the burden of proof on this issue.

 

I posit that, if your position were tenable, and if the claim that the laws original intent was for marriage to only be between one man and one woman, then there would be no need for passage of the Defense of Marriage Act in 1996. The very passage of that act shows that the laws original language/meaning does not support your position (that the laws originally meant for marriage to only be between one man and one woman), for if the laws truly meant what you say they meant when drafted, then legislation like DOMA would never have been required in the first place. This is also my argument in regards to Prop 8 made earlier this thread. If the laws when written said what you say they do, then these measures would be completely unecessary, even redundant, but they are necessary since the definition you suggest clearly did not exist (again, if you have evidence to the contrary, please provide it).

 

Additionally, since the term "homosexuality" doesn’t appear in print for the first time until 1869, in a German-Hungarian pamphlet written by Karl-Maria Kertbeny, your suggestion that laws explicitly refered to heterosexual couples (at the exclusion of homosexuals) when they were written is disingenuous at best (for context and relevance of this particular point, please see again the 9th amendment as cited above in this post).

 

 

As anyone who argues this issue as one of non-discrimination and equal protections can plainly see, it is those who oppose gay marriage who are ultimately trying to redefine the existing laws and the very concept of marriage, and my stance is that their arguments suggesting otherwise reek of hypocrisy.

 

 

This is not about the mere redefinition of words, nor is it about original circumstances in which these laws were drafted. The real substance in these discussions (the heart of the matter... the source of the passion in those who argue in favor of the allowance of gay marriage) is the mandate for equal protection to all citizens, ensuring there are relevant secular reasons for all laws and restriction of rights, and the guarding of minorities against undue discrimination based on tyranny of the majority or religiously motivated morality.

 

I believe strongly that nearly all readers of this post will concede (regardless of which side of this issue they support or oppose) that a consistent backbone in all laws of the US is equality and freedom. However, both federal and state level laws are written, and the chosen terminology in those laws is "marriage," so in that sense the words matter. I am not arguing to get "lexicographers more heavily involved in the judicial process," or to "lobby the retroactive change in meaning of terms." No. I am arguing first that this meaning you suggest never legitimately existed at all, and second that the consistent primary mandate of all laws in our nation is to ensure equality and freedom equitably to all US citizens... those who help comprise the "we" in "We the people." Yet, when one views the issue in terms of it's real world impact on those citizens, it is plain that equality and freedom is being stamped out, and that it is those in the opposition camp who are truly trying to "redefine marriage."

 

Readers should recall that if the state does not recognize two individuals in a same-sex union as being “married” that those individuals are being discriminated against as pertains to 1,138 different rights and protections which are conferred to U.S. citizens upon marriage by the federal government… (areas affected include Social Security benefits, veterans' benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, immigration law, and others.)

 

 

 

I'd be much more willing to take the burden of proof, even if it is not mine, if I thought that you would listen to what I offered instead of trying to roast me for it. In any case, what I have been objecting to in all these gay rights threads were your statements that there are no legitimate reasons to oppose gay marriage, or that those who do are intolerant, biased, ignorant, etc.

First, the burden of proof IS yours. You suggested that the laws original intent was for marriage to be between one man and one woman, consequently at the exclusion of same sex couples. That was your assertion, and therefore the burden IS yours to prove it, which you have not yet done.

 

Second, your pre-emptive anticipation of a rejection of any offerings you might make is not a valid reason for refusal to provide those offerings. Anticipating that people will ignore you is no reason to disregard your responsibiltiy to support your position, nor should (as I suggested in the opening of this post) any rational critically thinking human being allow such a circumvention of basic debate rules and site etiquette. If you do not believe that your supporting points will be strong enough to adequately support your assertions, then you should not be making those assertions in the first place.

 

I suggest that you are implicitly conceding your inability to supply such evidence in support of your assertion, and I accept your concession that your point is supported by nothing more than hand waving. I also welcome you taking the opportunity to prove otherwise by citing specific codes or quoting specific legal texts from that time which support your assertion. I am amenable to reasonable points which are well supported, but I refuse to concede my position based on a weak and poorly supported argument.

 

 

Finally, I have not said there are no legitimate reasons to oppose gay marriage, but I have argued that nobody has shared any constitutionally relevant ones. This is a rather important distinction in a discussion such as this.

 

Since nobody on the side opposing gay marriage has offered any constitutionally relevant (and secular) reasons for such bans to be allowed, I am left to conclude (barring new information) that opposition to gay marriage is an attempt to invocate religiously motivated personal morality into our laws. Again, this interpretation is undisputed (and will remain as such) until a constitutionally relevant secular reason for banning same sex marriage is provided (and I've already countered the "original meaning" position above in numerous ways, so I move that this can no longer be offered in response to the request). If you have a relevant secular reason that gay marriage should not be allowed, I welcome hearing from you (and others) on those points so we can move this dialog forward.

 

 

 

Last, you asked me to support this comment or retract it:

Pangloss - To address your question [why aren't gays allowed to marry now?], the way existing laws were framed, there really is no reason that they should not be allowed [...']. The only thing standing in their way are the voices and obstacles of the ignorant.

 

I would like to remind you that I was sharing an opinion, and not using that as the basis for ANY argument I’ve made, so your request for proof or retraction again offers me nothing but further confusion. The sentence above was my opinion (and one very much grounded in the facts surrounding this issue, I might add); it is not the basis of any argument I've put forward, simply an observation about those who stand in opposition.

 

However, despite the blaring vacuousness of your request, I can (in fact) support that opinion by reminding you (as I have repeatedly) that there have not been any constitutionally relevant secular reasons for a ban on gay marriage being offered by those opposing it. My position is further reinforced by the fact that secular individuals (and those who care about nondiscrimination and equal protections) tend not to argue the "opposition to gay marriage" side of the debate.

 

Either way, it was an opinion, not the basis for an argument, so really… whatever, dude. Come back when you're ready to stop hand waving and actually make a solid case regarding this difficult issue worthy of our consideration.

 

 

http://www.sftc.org/Docs/marriage.pdf

The State's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional.

 

 

I am not bludgeoning anyone, guys. I believe "deep within my being" that hearts and minds will be won by the strength of my arguments and the ferocity with which I make them, and also by demonstrating how specious the arguments of the opposition truly are. Now, perhaps I put too much faith in peoples rationality and ability to think critically. Of course, that is possible, I just sincerely hope that’s not the case and I will continue standing up for ideals which are aligned with the founding principles of our nation. Thanks for listening.

Edited December 24, 2008 by iNow

[Mr Skeptic]

Obviously, we agree on this. So, let me ask this: What if iNow were to lobby the lexicographers to redefine the word to exclude the male-female qualifier, and then successfully convince congress to pass a law (instead of courtroom antics) that retroactively applies this new definition to any laws containing that language?

 

Wouldn't that be respectful of the legislative process? I'm thinking that the meaning of words do change, so there must be some method by which we can "update" our laws deliberately through Congress, while not endangering our Constitution by abusing the Judical branch.

 

Yes, and that is exactly the right way to do it (actually, the lexicographers only need to be involved if he wants to call it "marriage" as opposed to whatever other term). I would even support that, if I got to vote on it.

[ParanoiA]

Again, you seem to be arguing that marriage laws meant “between one man and one woman," but I suggest that this position is untenable, and hence is a specious argument.

 

They meant between one man and one woman because the word "marriage" is qualified with man-woman in its definition. Your argument seems to ignore inherent arrangements imposed by the definition of other words. I appreciate the comments and evidence you put alot of trouble to put together in that nicely written post - but if the word "marriage" is defined with the hetero qualifier, then that is terrific evidence of the intent of the law.

 

For that reason, I think the burden of proof for "gay marriage" falls on you. You said yourself, there is no direct distinction in the verbiage for homosexual unity - but there is within the definition of the verbiage.

 

Put another way, there is, at the very least, an implication of a male-female qualifier via the definition of the word "marriage", while there doesn't seem to be any implication otherwise.

 

It would be akin to saying that Nuclear Weapons are protected by the first amendment, since there was no need to articulate a distinction as to the types of "arms" we have a right to bear.

 

Finally, I have not said there are no legitimate reasons to oppose gay marriage, but I have argued that nobody has shared any constitutionally relevant ones. This is a rather important distinction in a discussion such as this.

 

I think the only ones of any value are constitutional ones. Skeptic and I have been consistent that we value the integrity of our constitutional obligation over equality. Like Pangloss has pointed out, we're a long way from equality in so many categories, that to sacrifice our legislative process would undermine all of the equality we have achieved thus far, and then provide an unstable framework for the equality we have yet to achieve.

 

In other words, if you want to guarantee equality, then we can't subvert the systems designed to rigidly maintain it.

 

Yes, and that is exactly the right way to do it (actually, the lexicographers only need to be involved if he wants to call it "marriage" as opposed to whatever other term). I would even support that, if I got to vote on it.

 

I hope everyone is noting this. This is the clear example of our lack of "ignorance" to accepting homosexual unions - our issue has to do with how equality is achieved with our process. Clearly, if I merely thought homosexuals were "icky", I wouldn't accept any process, right or wrong.

[Mr Skeptic]

First, I’d like to point out that you have not yet defended your position, instead you have relied on your inability to defend it as a reason to hold it (“the lack of evidence indicates that…”). As most will acknowledge, lack of evidence is not evidence of lack, and no reasonable critical thinking human being should accept your hand waving as a valid manner of supporting your assertions.

 

This guy disagrees with you:

Since nobody on the side opposing gay marriage has offered any constitutionally relevant (and secular) reasons for such bans to be allowed, I am left to conclude (barring new information) that opposition to gay marriage is an attempt to invocate religiously motivated personal morality into our laws. Again, this interpretation is undisputed (and will remain as such) until a constitutionally relevant secular reason for banning same sex marriage is provided

I will let the above speak for itself. Basically, you are making an assertion and then throwing the burden of proof on everyone else -- good luck trying to get away with that.

 

However, you did finally provide some reasons for your position, and I appreciate that. Quoted above, you’ve raised an interesting point, but I don’t think it helps your position. Again, you seem to be arguing that marriage laws meant “between one man and one woman," but I suggest that this position is untenable, and hence is a specious argument.

 

 

Supporting this point, I cite the comments of Justice Kennedy in Lawrence v. Texas, where he provided the following opinion:

 

The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) (" The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions").

 

Uh huh. So, where are all the gay marriages from back then?

 

To further the heart of my intended point, I direct you toward the 9th Amendment to the Constitution

 

Amendment IX (the Ninth Amendment) to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.

<…>

Some jurists have asserted that the Ninth Amendment is relevant to interpretation of the Fourteenth Amendment. Justice Arthur Goldberg (joined by Chief Justice Earl Warren and Justice William Brennan) expressed this view in a concurring opinion in the case of Griswold v. Connecticut (1965):

The Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights.... I do not mean to imply that the .... Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government....While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement.

 

A summary of the 9th amendment suggests that:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

 

Yes, this means that they could have that as an intrinsic right, not that they do.

 

For this reason, the fact that you are neither able to defend your assertion that the laws original intent was to restrict marriage to one man and one woman nor demonstrate that they explicitly restricted marriage from people of the same gender defeats your suggestion that it is those in favor of the allowance of same sex union who hold the burden of proof on this issue.

 

Well, before you go saying that it is a fact that I can't defend my assertion, maybe you should show that I didn't defend it. Since you agreed that there was no evidence of marriage including gay marriage (but said that absence of evidence is not evidence of absence), and the dictionary definition at the time was between a man and a woman, I think that it is pretty well defended.

 

If you don't want the burden of proof, we can both sit and twiddle our thumbs until Proposition 8 magically goes away. Hint: it is only going away if someone opposing it takes the burden of proof.

 

I posit that, if your position were tenable, and if the claim that the laws original intent was for marriage to only be between one man and one woman, then there would be no need for passage of the Defense of Marriage Act in 1996. The very passage of that act shows that the laws original language/meaning does not support your position (that the laws originally meant for marriage to only be between one man and one woman), for if the laws truly meant what you say they meant when drafted, then legislation like DOMA would never have been required in the first place. This is also my argument in regards to Prop 8 made earlier this thread. If the laws when written said what you say they do, then these measures would be completely unecessary, even redundant, but they are necessary since the definition you suggest clearly did not exist (again, if you have evidence to the contrary, please provide it).

 

That is evidence of nothing. As I've previously said, laws that are unnecessary are passed all the time. Most of them are called "feel good laws".

 

Additionally, since the term "homosexuality" doesn’t appear in print for the first time until 1869, in a German-Hungarian pamphlet written by Karl-Maria Kertbeny, your suggestion that laws explicitly refered to heterosexual couples (at the exclusion of homosexuals) when they were written is disingenuous at best (for context and relevance of this particular point, please see again the 9th amendment as cited above in this post).

 

No, they referred to a union of a man and a woman. Seriously, how dumb do you think everyone is? Because there wasn't a word the concept was never used?

 

As anyone who argues this issue as one of non-discrimination and equal protections can plainly see, it is those who oppose gay marriage who are ultimately trying to redefine the existing laws and the very concept of marriage, and my stance is that their arguments suggesting otherwise reek of hypocrisy.

 

In California, the existing laws are that marriage is between a man and a woman. If they weren't before, they are now.

 

This is not about the mere redefinition of words, nor is it about original circumstances in which these laws were drafted. The real substance in these discussions (the heart of the matter... the source of the passion in those who argue in favor of the allowance of gay marriage) is the mandate for equal protection to all citizens, ensuring there are relevant secular reasons for all laws and restriction of rights, and the guarding of minorities against undue discrimination based on tyranny of the majority or religiously motivated morality.

 

Yet, they have the same rights as everyone else -- they can still marry a person of the opposite sex, just like everyone else. What they want is a different right -- the right to marry a person of the same sex. Whether this is a right they have had but people are trying to take it away, or it is a new right that they are asking for, is also an important distinction.

 

In saying that their rights are being taken away, you are assuming that they already had those rights. Perhaps that is so, but I've yet to see any evidence that they already had those rights.

 

I believe strongly that nearly all readers of this post will concede (regardless of which side of this issue they support or oppose) that a consistent backbone in all laws of the US is equality and freedom. However, both federal and state level laws are written, and the chosen terminology in those laws is "marriage," so in that sense the words matter. I am not arguing to get "lexicographers more heavily involved in the judicial process," or to "lobby the retroactive change in meaning of terms." No. I am arguing first that this meaning you suggest never legitimately existed at all, and second that the consistent primary mandate of all laws in our nation is to ensure equality and freedom equitably to all US citizens... those who help comprise the "we" in "We the people." Yet, when one views the issue in terms of it's real world impact on those citizens, it is plain that equality and freedom is being stamped out, and that it is those in the opposition camp who are truly trying to "redefine marriage."

 

Actually, it seems to me that you are stating that, not arguing it.

 

Readers should recall that if the state does not recognize two individuals in a same-sex union as being “married” that those individuals are being discriminated against as pertains to 1,138 different rights and protections which are conferred to U.S. citizens upon marriage by the federal government… (areas affected include Social Security benefits, veterans' benefits, health insurance, Medicaid, hospital visitation, estate taxes, retirement savings, pensions, family leave, immigration law, and others.)

 

It also doesn't recognize an owner-pet relationship as a marriage, and as such these people and animals are being discriminated against as pertains to 1,138 different rights and protections.

 

First, the burden of proof IS yours. You suggested that the laws original intent was for marriage to be between one man and one woman, consequently at the exclusion of same sex couples. That was your assertion, and therefore the burden IS yours to prove it, which you have not yet done.

 

Seeing as that is how things are, I feel no need to defend it. In fact, I don't particularly care that it stay that way, either. However, if you want to continue saying that opponents of gay marriage have no reason other than ignorance, bias, intolerance, etc., then you should have already shown that all arguments, including the above, are down to ignorance, bias, intolerance, etc.

 

Second, your pre-emptive anticipation of a rejection of any offerings you might make is not a valid reason for refusal to provide those offerings. Anticipating that people will ignore you is no reason to disregard your responsibiltiy to support your position, nor should (as I suggested in the opening of this post) any rational critically thinking human being allow such a circumvention of basic debate rules and site etiquette. If you do not believe that your supporting points will be strong enough to adequately support your assertions, then you should not be making those assertions in the first place.

 

As I said, I don't think you are interested in debate. I know how strongly you feel about your "war on religion", and it sometimes affects your judgment. For example, in this post you both take me to task for using absence of evidence as evidence of absence, and yet use it yourself in the same post. That I don't have the burden of proof, and you don't really want the proof, seems a fairly good reason that I shouldn't bother.

 

I suggest that you are implicitly conceding your inability to supply such evidence in support of your assertion, and I accept your concession that your point is supported by nothing more than hand waving. I also welcome you taking the opportunity to prove otherwise by citing specific codes or quoting specific legal texts from that time which support your assertion. I am amenable to reasonable points which are well supported, but I refuse to concede my position based on a weak and poorly supported argument.

 

So long as you retain different standards for reasonable proof for me and yourself, there is no point.

 

Finally, I have not said there are no legitimate reasons to oppose gay marriage, but I have argued that nobody has shared any constitutionally relevant ones. This is a rather important distinction in a discussion such as this.

 

 

 

Since nobody on the side opposing gay marriage has offered any constitutionally relevant (and secular) reasons for such bans to be allowed, I am left to conclude (barring new information) that opposition to gay marriage is an attempt to invocate religiously motivated personal morality into our laws. Again, this interpretation is undisputed (and will remain as such) until a constitutionally relevant secular reason for banning same sex marriage is provided (and I've already countered the "original meaning" position above in numerous ways, so I move that this can no longer be offered in response to the request). If you have a relevant secular reason that gay marriage should not be allowed, I welcome hearing from you (and others) on those points so we can move this dialog forward.

 

I think this guy disagrees with you:

As most will acknowledge, lack of evidence is not evidence of lack, and no reasonable critical thinking human being should accept your hand waving as a valid manner of supporting your assertions.

 

Last, you asked me to support this comment or retract it:

Originally Posted by

iNow

Pangloss - To address your question [why aren't gays allowed to marry now?], the way existing laws were framed, there really is no reason that they should not be allowed [...]. The only thing standing in their way are the voices and obstacles of the ignorant.

 

I would like to remind you that I was sharing an opinion, and not using that as the basis for ANY argument I’ve made, so your request for proof or retraction again offers me nothing but further confusion. The sentence above was my opinion (and one very much grounded in the facts surrounding this issue, I might add); it is not the basis of any argument I've put forward, simply an observation about those who stand in opposition.

 

Well, in my opinion, your opinion is both factually wrong and counterproductive.

 

However, despite the blaring vacuousness of your request, I can (in fact) support that opinion by reminding you (as I have repeatedly) that there have not been any constitutionally relevant secular reasons for a ban on gay marriage being offered by those opposing it.

 

I don't know if you can stand this guy, but again he disagrees with you:

As most will acknowledge, lack of evidence is not evidence of lack, and no reasonable critical thinking human being should accept your hand waving as a valid manner of supporting your assertions.

A further qualifier is that you have not accepted any such reasons, despite their being presented. For example, the one that gay marriage is an oxymoron, and the one that "marriage" as meant in the law did not include gay marriage. I can't see how those arguments are irrelevant, unless you can prove them wrong which you have not.

 

So until you can prove them wrong, you have seen constitutionally relevant secular reasons for a ban on gay marriage but have simply not acknowledged them.

 

My position is further reinforced by the fact that secular individuals (and those who care about nondiscrimination and equal protections) tend not to argue the "opposition to gay marriage" side of the debate.

 

So could I say that the proponents of gay marriage are atheists using nondiscrimination and equal protection as an excuse to bludgeon the religious folks, based on the above?

 

Either way, it was an opinion, not the basis for an argument, so really… whatever, dude. Come back when you're ready to stop hand waving and actually make a solid case regarding this difficult issue worthy of our consideration.

 

I think that fighting ignorance and intolerance is a worthy cause.

 

http://www.sftc.org/Docs/marriage.pdf

Originally Posted by

California Judge Richard Kramer, a Catholic Republican ruling on Prop 22

The State's protracted denial of equal protection cannot be justified simply because such constitutional violation has become traditional.

 

I am not bludgeoning anyone, guys. I believe "deep within my being" that hearts and minds will be won by the strength of my arguments and the ferocity with which I make them, and also by demonstrating how specious the arguments of the opposition truly are.

 

Me too, other than the ferocity part. However, to have strong arguments, and to demonstrate the opposition's arguments to be specious, requires you to take on the burden of proof. Which you steadfastly refuse to do. As for ferocity, that is usually not a rational reaction, so if your arguments are "ferocious" they may end up being irrational.

 

Now, perhaps I put too much faith in peoples rationality and ability to think critically. Of course, that is possible, I just sincerely hope that’s not the case and I will continue standing up for ideals which are aligned with the founding principles of our nation. Thanks for listening.

 

When people feel strongly about something, they tend to be a little irrational, and for example have different standards of proof for those in support and those opposed to their position.

[Reaper]

Shrilly demonizing the people you are trying to convince is highly counterproductive, and whether they deserve it is irrelevant. The best ways to convince people are to stay civil, to demonstrate that you understand and sympathize with their position (but still believe the opposite), and to lead by example. And offer them something worthwhile. MLK offered a dream of healed wounds and a unified nation. The Black Panthers just promised retribution.

 

Ah, ok I see what you are saying. That wasn't clear before. But I was not advocating demonizing other people, but rather that they should just suck it up, just like all the other times when we started giving back rights to the other minorities. Although, not demonizing people doesn't mean that you sympathize with their position (MLK didn't actually sympathize with their position, what he did was to make it clear that it (prejudice) was wrong. But at the same time he was willing to forgive. That ultimately was the main difference between him and the black panthers...).

 

Ultimately, their prejudices (or lack of them) are their own business. But it has no place in the court of law, and in a society that claims itself to be free and just.

 

You have to remember that prejudices take a great deal longer to go away, and that is why protection from the majority is necessary from time to time. It wasn't until the 1980's (or the 90's in some cases) before racism was universally frowned upon on in every nation, even though the civil rights movement happened in the 60's. Sometimes the law has to come before the consensus, as is the case right now with same sex couples...

 

So until you can prove them wrong, you have seen constitutionally relevant secular reasons for a ban on gay marriage but have simply not acknowledged them.

 

 

Since when has a ban on same sex marriage ever had a secular basis? The only ones I could find was this one,and even that doesn't hold up to scrutiny. None of the reasons do, and Proposition 8 was overwhelmingly due to religious reasons...

Edited December 24, 2008 by Reaper
multiple post merged

[Dak]

Yeah I agree. I'm not sure what you're taking issue with. My whole issue here has been to refuse to allow the Judiciary to redefine what words mean; to block legislating from the bench.

 

No, but 'legislating from the bench' through common law -- including recognising that the meaning attached to words has changed since the law was written -- is the point of the judiciary

 

Edit: Just so we're clear, our Judicial Branch is supposed to interpret the intent of laws as they are written, which requires them to be reviewed in the context of the time they were written, and etc. So our Judicial isn't supposed to re-interpret laws using updated terminology. I don't know if that changes your point or not, but I wanted to be sure we're on the same page.

 

are you sure?

 

http://en.wikipedia.org/wiki/Common_Law#Evolution_of_common_law_to_meet_changing_social_needs_and_improved_understanding

 

This illustrates two crucial principles that are often not well understood by non-lawyers. (a) The law evolves, this evolution is in the hands of judges, and judges have "made law" for hundreds of years. (b) The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes.

[npts2020]

Maybe a stupid question in all of this scholarly debate, but if marriage was originally intended as between one man and one woman, how did the Mormons and others ever get away with polygamous marriages?