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Boycott Threats Lead to Resignation of Theater Artistic Director Who Contributed to Anti-Same-Sex-Marriage Initiative:

The Sacramento Bee reports:

Scott Eckern, artistic director for the California Musical Theatre, resigned Wednesday as a growing number of artists threatened to boycott the organization because of his $1,000 donation to the campaign to ban gay marriage in California....

Los Angeles-based and Tony Award-winning composer Marc Shaiman ("Hairspray") wrote a blog saying he would never allow any of his shows to again be licensed or performed by California Musical Theatre while Eckern was employed there....

Speech calling for such boycotts is itself constitutionally protected. It neither is nor, in my view, should be illegal for people to refuse to patronize a theater because of the artistic director's political views. It likewise isn't illegal, and shouldn't be illegal for copyright owners to refuse to license their works for such reasons. I don't think there's a constitutional right to refuse to license the work under such circumstances, but I wouldn't support a ban on such refusals.

California law does bar employers from firing their employees for the employees' political activity, which would surely include contributions to political campaigns, and it doesn't seem to have an exception for situations where the employees' activity has caused boycotts or other losses to the employer. (See Cal. Labor Code §§ 1101-02, which has been read fairly broadly.) But it appears that Eckern resigned without being forced to do so by his employer.

Still, it seems to me that this story helps provide a counterpoint to the criticism of people and organizations who boycotted the Dixie Chicks for their statements. For more on the general topic of boycotts for speech, see my Deterring Speech: When Is It "McCarthyism"? When Is It Proper? (PDF pp. 11-30).

UPDATE: More thoughts on this from Adam B at DailyKos.

Related Posts (on one page):

  1. Proposition 8 Donor Maps,
  2. Campaign Contribution Disclosure and Technological Change:
  3. Disclosure of Contributors to Ballot Measures:
  4. Boycott Threats Lead to Resignation of Theater Artistic Director Who Contributed to Anti-Same-Sex-Marriage Initiative:
Happyshooter:
Them gay people sure are open to diversity, aren't they.
11.13.2008 4:13pm
Zywicki (mail):
I just wonder--is it really a good idea to bring back blacklists based purely on a person's political views and patronage? Even if it is legal, do we really think it wise to establish a practice of threatening a person's living based purely on disagreement with their political views? Would opponents of Prop 8 crowd be ok with a similar action against one of their supporters?
11.13.2008 4:15pm
pete (mail) (www):
I think the difference here though is that it was an employee of the theater. The Dixie Chicks were boycotted because of what they said, not because of what one of their stagehands said. And the hotel boycott from a few months ago was because of what the owner did, not what any of the employees did.

Boycotting a business for what one of its employees did punishes the business for something that it could not forsee and in this case is legally not allowed to do anything about. Blacklisting the artistic director would seem more appropriate (even though I am against most political blacklisting for employment).
11.13.2008 4:16pm
Sarcastro (www):
Rage based policies always make for good politics. I'm sure all the goodwill here will make for success when next gay marraige is on the ballot.
11.13.2008 4:17pm
geokstr:
Zywicki:

Would opponents of Prop 8 crowd be ok with a similar action against one of their supporters?

We already know the answer to that. There's probably been several hundred thousand movies made and books written condemning the "blacklist" of the Hollywood ten (so far), even though I believe every one of them has admitted to being card-carrying members of the communist party long ago. McCarthyite is still a term of endearment used constantly for all those to the right of Josef.

Although I do believe it has finally been overtaken by "racist".
11.13.2008 4:23pm
commontheme (mail):

I just wonder--is it really a good idea to bring back blacklists based purely on a person's political views and patronage? Even if it is legal, do we really think it wise to establish a practice of threatening a person's living based purely on disagreement with their political views? Would opponents of Prop 8 crowd be ok with a similar action against one of their supporters?

Look, it's a concern troll.

How adorable!
11.13.2008 4:29pm
richard cabeza:
Although I do believe it has finally been overtaken by "racist".

Well, when you have both epithets accurately embodied by the same figurehead, it's hard to measure. Still, like "homophobe," these are efforts to simplify discourse with hyperbole into something emotional (unthinking).

Is this an issue if the resignation is voluntary? Do we need to quantify how voluntary? Rather: how acceptable a practice is shunning? And shouldn't it be explained?

Anecdotally, I've seen the voluntary act of shunning denigrated as an immoral exercise of power over others while the same person seeks less-voluntary measures of "social justice," so to speak. In the case in which this was articulated as such, the speaker was young, but I see the same sentiment creeping over the political landscape.
11.13.2008 4:33pm
Randy R. (mail):
"Would opponents of Prop 8 crowd be ok with a similar action against one of their supporters?"

As I recall, the LDS church made public a statement that they will take notice of anyone who supports No on Prop. 8 financially and will be held accountable.

They can hardly complain when opponents of Prop 8 decide to do the same thing. Were you as concerned about this issue back then, or is your concern only one way?
11.13.2008 4:34pm
Henry679 (mail):
OK, no boycotting of anybody consorting with that Ayers fellow, or Chavez, or any of those lefties. Got it.
11.13.2008 4:39pm
Adam J:
Happyshooter- Yeah, shocking how gay people discriminate against people who discriminate against gay people...
11.13.2008 4:41pm
Adam J:
Henry679 - I don't think you got it at all.
11.13.2008 4:43pm
richard cabeza:
Yeah, shocking how gay people discriminate against people who discriminate against gay people...

But I thought discrimination is wrong.
11.13.2008 4:44pm
Steve P. (mail):
Voluntary boycotts as a result of speech (or actions, or where you spend your money) seems pretty uncontroversial to me. Would libertarians be against this, regardless of the speech or actions involved, as long as it was free of government interference?

I mean, some of my friends and I have boycotted gay bars for years.
11.13.2008 4:44pm
Sarcastro (www):
Ah, Joe MaCarthy, unsung hero who saved us all from Communist takeover. America was totally about to fall before the evil Communist machine in Hollywood and Washington D.C.

But then Joe and his never seen list made people afraid, and with fear there is strength. Strength to judge people by their friends and strength to spy on one's neighbors.

Till the Communists beat him through "Journalism" and "exposure."

Also, I think we should boycott Obama, somehow.
11.13.2008 4:45pm
MLS:
Shaiman apparently wrote an email to some of his "friends" talking about this

See: Saiman email. Try as I may, I could not find in his email the "threat" reported by the Sacramento Bee.

I suspect that next time contributions in the amount of $999.99 will be the norm.
11.13.2008 4:48pm
David Schwartz (mail):
Yeah, shocking how gay people discriminate against people who discriminate against gay people...
But I thought discrimination is wrong.
Surely you see the difference between discriminating against someone because they engage in conduct that harms people and discriminating against people because of who they are.
11.13.2008 4:50pm
Randy R. (mail):
Scott Eckern qualifies as one of the dumbest people alive for this week. Let's review:

He was the artistic director for The California Muscial Theater for 25 years.

As with any musical theater, you can bank upon a few things:

1. Most of the men onstage are gay.
2. Virtually all of the good actors and singers are gay.
3. Many of the stage hands and adminstrative staffers are gay. (The carpenters and electricians, if women, are almost certainly lesbians).
4. The audience and subscribers have a large percentage of gays.
5. The donors have a large percentage of gays.
6. There are probably several Board members who are gay.
7. Most of the musicals that would be produced were written by gay men, or at least the rights are owned by gay men.

And this guy goes and makes a public donation to an anti-gay proposition! What the heck was he thinking? If the guy were working for a church that was made up almost entirely of anti-abortion believers and he makes a contribution to a pro-choice organization, I'm quite sure the church would make quick work of him, don't you think?

(I know, I know, I'm boasting here. But I really DO think that musical theater is one of the major benefits of being gay.)
11.13.2008 4:54pm
Sarcastro (www):
[Randy R. Isn't this a dumb, emotional move though, even if it foreseeable?]
11.13.2008 4:58pm
pete (mail) (www):
Eugene, would it be legal for a polical organization in California to discriminate based on how their employees donate? For instance, could the Republican party of California fire an employee who donated money to a Democrat running for governor or vice versa?

There are a very cases where the institution has an ideological agenda where I think this sort of firing might be appropriate.
11.13.2008 5:02pm
Anderson (mail):
"Monumentally stupid" is right.

If the guy wanted to hold onto his job, I would support him, and I'd be very upset if the theater had fired him for his speech. Resigning was probably the smart move for him however. Maybe he can get a job doing Christian theater.

But my problem with boycotting the Dixie Chicks was never that it was improper. It was that the Chicks were right and their stupid ex-fans were wrong.
11.13.2008 5:03pm
richard cabeza:
Surely you see the difference between discriminating against someone because they engage in conduct that harms people and discriminating against people because of who they are.

Well that explains some things. You redefine all your thoughts, behaviors, and choices as innate facets of your being -- "accepting one's self" -- and all criticism becomes ad hominem.

Brilliant, actually; though, if I had thought of it I wouldn't have imagined anybody'd be daft enough to fall for it.

I still don't see what the problem is in the actions of either party in this particular instance. Ideally, discrimination for any reason would be an individual decision. Shunning goes both ways, no pun intended.
11.13.2008 5:05pm
richard cabeza:
But my problem with boycotting the Dixie Chicks was never that it was improper. It was that the Chicks were right and their stupid ex-fans were wrong.

That's exactly right. Speech is only free when the person speaking is correct. Otherwise, they should shut up. Dissent is not patriotic.
11.13.2008 5:06pm
Randy R. (mail):
All the donors and subscribers have a right to put their money where they choose, no? Actors don't have to work for that particular theater if they don't want to, right? And if they don't want to be associated or supportive of that theater, they can make that public, and if this controversy threatens the existence of the theater because people withdraw their support, then the Board certainly has a right to terminate him.

But they didn't. He resigned.

I'm not really in favor of firing people based on their politican or social views. If they can do the job well, that should be the only criteria. But part of any major player within a non-profit organization has to raise money, and how is he going to be able to raise money with a hostile public? So at this point, he really *can't* do his job well.

Do you really think that if he worked for a anti-abortion church and he donated to a pro-choice organization, and it became public, that they would have spent two minutes thinking before they fired him? I don't believe so. If anything, the theater was generous in letting him resign.

As a related issue, churches have long argued that sexual orientation discrimination laws shouldn't apply to them, because they cannot have a gay person on their staff if they are an anti-gay church. All gay organizations have agreed that they should be exempt for that reason. Let me ask you: would it be okay to allow any church to deny employment or fire a black person, or a pregnant woman, someone who is over 50, someone disabled, simply because their such things go against their religion? There would be quite an outcry. But we gays have agreed to not press the issue, and have agreed that anti-gay churches can carry out discriminatory pratices against gay people.
11.13.2008 5:09pm
Randy R. (mail):
Richard: " You redefine all your thoughts, behaviors, and choices as innate facets of your being -- "accepting one's self" -- and all criticism becomes ad hominem."

Not so fast, Richard. Sexual orientation is innate. We didn't choose to be gay any more than you chose to be straight. Orientation refers only to desire, which means that I only desire men sexually and romantically, just as you (presumably) desire only women sexually and romantically. ( If you disagree, please inform us under what circumstances you would happily have a sexual and romantic relationship with a man. I love to hear, because there are always a few straight men that I dream about!)

Regarding behavior, however, that is something completely different. I can choose to hit you or not, and you can fully criticize me for doing so.

Get the diff? Criticizing me for being gay: Not okay. Criticizing me for doing something stupid: perfectly okay.

It's really not that hard, and most people are able to do so. I hope you can as well.
11.13.2008 5:15pm
richard cabeza:
Randy R, you seem to be agreeing with me by restating what I said twisted to allow for unconstitutional anti-discrimination law. (For the good of the children.)
11.13.2008 5:22pm
Randy R. (mail):
Sorry, Richard, but I have no idea what you mean by your last post. You stated that our position is that because homosexuality is innate, that means we believe that any criticism of any gay person's behavior is ad hominem.

That is simply untrue.
11.13.2008 5:27pm
Adam J:
richard cabeza- "That's exactly right. Speech is only free when the person speaking is correct." Nobody said that people weren't free to speak, only that what they spoke about is wrong. Obviously, some speech is wrong... or are you a moral relativist? There's a difference between believing that all speech should be free from government interference and all speech is correct.
11.13.2008 5:28pm
ginsocal (mail):
Well, Randy, my libertarian side says that, yes, it would be OK for any business or organization, outside of government at any level, to discriminate angainst anybody, at any time, for any reason (or no reason at all). It's called, "freedom of association." You might want to look it up.

I disciminate against people all the time; judgement is one of our hard-wired self-defense mechanisms. Why the government, at the behest of a loud, but small, minority, wants to force us to hire, retain, rent to, or otherwise associate with people we don't care to be around, is beyond comprehension
11.13.2008 5:29pm
wooga:
David Schwartz:

Surely you see the difference between discriminating against someone because they engage in conduct that harms people and discriminating against people because of who they are.


What is "who they are" and what is "engaging in harmful conduct"? You act as if that is a self-obvious distinction, and it is most certainly is not. There is no law which says "don't be gay."

Randy R.

Get the diff? Criticizing me for being gay: Not okay. Criticizing me for doing something stupid: perfectly okay.


But Prop 8 doesn't discriminate against people for "being gay." It discriminates against them for "wanting to enter into a particular relationship." Unless you insist that 'entering into a gay marriage' is an essential characteristic of 'being gay,' then there is a very clear act versus status distinction between the two.


(Same note I always bring up on this point: The act/status distinction for gays was still recognized by SCOTUS after Romer v Evans, but was rejected by Lawrence v Texas).
11.13.2008 5:31pm
JosephSlater (mail):
Um, nobody, including Anderson, was arguing that there should be a different legal rule applied to boycotts by liberals and boycotts by conservatives. He said that he personally disapproved of the boycott of the Dixie Chicks because he agreed with them on the merits. It's entirely consistent for somebody to support some boycotts and not others, based on the purpose of the boycott. Claiming that one kind of boycott is illegal and another kind is illegal, based on the politics involved, would be inconsistent. But nobody is saying that.
11.13.2008 5:38pm
Eugene Volokh (www):
Pete: I touch on the question you raise -- though only very briefly -- near the end of this post from last year.
11.13.2008 5:41pm
richard cabeza:
Something brought up in the Kos thread, and made to be disappeared in this thread, is that targetting for boycot the employee's organization as a result of the employee's personal donation is more troubling than simply shunning the man himself, eg working with the organization under a different director (though I don't know if the organization was set up that way) or actually talking to the guy instead of making free advertising of the private-and-publically-listed-by-law transaction.
11.13.2008 5:46pm
Randy R. (mail):
ginsocial: "It's called, "freedom of association." You might want to look it up.

I disciminate against people all the time; judgement is one of our hard-wired self-defense mechanisms. Why the government, at the behest of a loud, but small, minority, wants to force us to hire, retain, rent to, or otherwise associate with people we don't care to be around, is beyond comprehension."

I agree. If I operate a restaurand, I should be free to disciminate against blacks, or the disabled, and not serve them or hire them. It's the American way!

Those uppity blacks can do what they've always done -- patronize their own restaurants. Why should I be forced to serve them?
11.13.2008 5:50pm
Randy R. (mail):
Richard:"But Prop 8 doesn't discriminate against people for "being gay." It discriminates against them for "wanting to enter into a particular relationship." Unless you insist that 'entering into a gay marriage' is an essential characteristic of 'being gay,' then there is a very clear act versus status distinction between the two. "

Nope, you've got it backwards. Let's go step by step:

1. I'm gay
2. The only person I would want to marry is another man, a gay man.
3. If I were straight, I would want to marry a woman. Which I can because all striaght can marry whom they choose to marry.
4. As I am gay, I cannot marry the one person that I choose to marry. therefore, I am not able to marry because I'm gay. Again, if I were straight, I could get married (see No. 3)

Only gay people are harmed by this prop 8. If we were not gay, then there would be no harm. Therefore, we are harmed because we are gay.
11.13.2008 5:54pm
richard cabeza:
If the economic interests for the business strategy of avoiding such discrimination aren't enough to convince them, then let the business fail. Of course this goes against both "social justice" (government guaranteeing equal outcome) and "corporate welfare" (government managing entry and exit).
11.13.2008 5:56pm
John Doughtry (mail) (www):
Eugene, et al -- this is my first posting here, although I have been more or less following topics via RSS for some time.

I find it disturbing that an individual's political activity, performed during his/her private time, can be considered as grounds for dismissal from an employer.

There are, I am sure, quite a few individuals who become active in politics based on their perceived moral or ethical values. The potential of dismissal merely based on one's legal and personal behavior -- which is (as I see it) part of the guaranteed freedom of speech -- should be considered a violation of one's civil liberties.

Am I off-base on my opinion in this? Has the Patriot Act stripped us of more than habeas corpus? Has it stripped us of a fundamental right to engage in legal political activities?
11.13.2008 6:09pm
Adam J:
wooga- "But Prop 8 doesn't discriminate against people for "being gay." It discriminates against them for "wanting to enter into a particular relationship." Unless you insist that 'entering into a gay marriage' is an essential characteristic of 'being gay,' then there is a very clear act versus status distinction between the two."

Good point, just like laws that banned blacks from sitting in the front of the bus wasn't discrimination against people for "being black". After all, "wanting to sit in the front of the bus" isn't an essential characteristic of "being black".
11.13.2008 6:10pm
Smokey:
commontheme responds to these questions:
I just wonder--is it really a good idea to bring back blacklists based purely on a person's political views and patronage? Even if it is legal, do we really think it wise to establish a practice of threatening a person's living based purely on disagreement with their political views? Would opponents of Prop 8 crowd be ok with a similar action against one of their supporters?
By saying:
"Look, it's a concern troll.

How adorable!"
So, who's the actual troll?
11.13.2008 6:13pm
Ex-Fed (mail) (www):
I appreciate this post. I was disgusted by the passage of Proposition 8, but also annoyed by the flood of Plainesque mangling of free-speech principles that has emerged in the wake of protests against Proposition 8. Much of that mangling has involved the sentiment that freedom of speech necessarily involves some sort of privilege against criticism and social consequences of speech -- which is ludicrous and self-contradictory.
11.13.2008 6:13pm
commontheme (mail):

So, who's the actual troll?

Smokey?
11.13.2008 6:26pm
Pragmatist:

Not so fast, Richard. Sexual orientation is innate. We didn't choose to be gay any more than you chose to be straight. Orientation refers only to desire...
Regarding behavior, however, that is something completely different. I can choose to hit you or not, and you can fully criticize me for doing so.

Nobody's criticizing you for your desires, everyone desires to do illegal and immoral things at some point. We're only criticizing you for acting on those desires such as marrying or having sex with other men.
11.13.2008 6:27pm
whit:

Not so fast, Richard. Sexual orientation is innate.


that has simply not been proven. fwiw, i am against 8, and for gay marriage. but i am also against anti-scientific crap that claims to know that sexual orientation is innate.

this has been discussed ad nauseum here.

the bulk of scientific evidence at this point supports that the majority component of orientation for most people is genetic.

that is hardly the same thing as what you are saying.

personally, i really don't CARE to what extent oritentation is or isn't innate. it really wouldn't affect my political beliefs about gay rights..

but science matters. and science has not proven that orientation is (solely) innate.
11.13.2008 6:27pm
Pragmatist:

Good point, just like laws that banned blacks from sitting in the front of the bus wasn't discrimination against people for "being black". After all, "wanting to sit in the front of the bus" isn't an essential characteristic of "being black".

It's very simple: If everyone was restricted from sitting in the front of the bus it wouldn't be discrimination. Equivalently, since no one, not even straight people, can marry someone of their own gender (or objects, or animals) it's not discrimination.
11.13.2008 6:32pm
Ex-Fed (mail) (www):
By the way, I think it's important to note that a boycott -- including one that pressures somebody to resign -- is not the end of the exchange in the marketplace of ideas. It's entirely possible that SSM supporters may find themselves losing substantial public support as a result of boycotts or protests and the like. That's the social consequence of their expression, as surely as this director's predicament is the social consequence of his. As Eugene pointed out in the linked law review article, when Ashcroft spouted his line about how people accusing him of harming civil liberties were helping the enemy, he probably hardened public sentiment against him. That's another social consequence of speech that some might characterize as speech-suppressing.

If people think that SSM protesters are acting unfairly, let them exercise their own speech in retaliation. And then I'll ridicule them if they couch that retaliation in terms of "Oh halp my rights are infringed," which is my exercise of speech. Then they'll call me a fascist homo-supporter or something, which is their speech again. And so on.
11.13.2008 6:34pm
whit:
the lack of logic here is disturbing (I am against 8 and for gay marriage rights fwiw)


3. If I were straight, I would want to marry a woman. Which I can because all striaght can marry whom they choose to marry.


no, they can't. many straights want to marry a person related to them (by blood or marriage). in most cases they can't. in fact, even having sex with such a person is a serious criminal act.

iow, both straights and gays are restricted in whom they can legally marry. there are other restrictions. i just mentioned one


4. As I am gay, I cannot marry the one person that I choose to marry. therefore, I am not able to marry because I'm gay. Again, if I were straight, I could get married (see No. 3)


again, notwithstanding above, that's correct.

again, i support gay marriage, but i think MOST gay marriage proponents are dishonest (or deluding themselves) when they fail to recognize that gay marriage changes what marriage is.

men and women have significant and immutable (save metric a**loads of surgery and hormones) differences.

vive la difference and all that.

these differences do not exist between (for example), the races.

they are distinct and have existed throughout all recorded time.

and marriage, throughout all history (with very recent history being an exception) has been one or more of men marrying one or more of women. two distinct creatures.

changing marriage (Which i am FOR) to include two or more men together or two or more women together is a redefinition of marriage.

you can use the rights argument all you want, as long as you recognize that it is a radical redefinition of marriage.
11.13.2008 6:34pm
pete (mail) (www):
Eugene, thanks for the tip. I think it is hard to determine how to apply this law even if you agree that it is a good idea. There is a big difference between a manager at a mcdonalds firing someone becuase they dontaed to oppose/support prop 8 and a church firing someone for dotating to support prop 8 and a theater firing someone for dontating and a politcal party firing someone for donating for or agianst it.

In the McDonalds type case the donation has no real effect on the job. In the church or theatre it is possilby relevant depending on the situation and how they deal with it such as in this case. In the political group it is directly related to the job.

The law may be well intended, but seems to be hard to enforce reasonably. The ethics of firing someone for their political beliefs and practices may be too situational to be remedied through the law.
11.13.2008 6:40pm
rickster:
Randy R. -

As I recall, the LDS church made public a statement that they will take notice of anyone who supports No on Prop. 8 financially and will be held accountable.


Sounds very unlike the LDS Church. Got a cite for that?
11.13.2008 6:45pm
Randy R. (mail):
Whit; "the bulk of scientific evidence at this point supports that the majority component of orientation for most people is genetic. that is hardly the same thing as what you are saying."

You are proably right, and I use "Innate" as a shorthand. Not good science, I agree, and I shouldn't do it. But it is difficult enough to get people to understand that being gay isn't a choice.

Pragmatist: " Equivalently, since no one, not even straight people, can marry someone of their own gender (or objects, or animals) it's not discrimination."

And back before 1968, if you were black and wanted to marry a white person, you were prohibited from doing so, but you believe that is okay, since the prohibition on interracial marriage applied to everyone, even those who just wanted to marry within their race?

Please -- even children aren't THAT stupid.
11.13.2008 6:48pm
Gilbert (mail):
@whit


many straights want to marry a person related to them (by blood or marriage). in most cases they can't. in fact, even having sex with such a person is a serious criminal act.


There is a rational reason to prevent incest (genetic effects on children). There is no rational reason to prevent homosexual sex (other than pure animosity).
11.13.2008 7:00pm
Randy R. (mail):
"ProtectMarriage.com, the umbrella group behind a ballot initiative that would overturn the California Supreme Court decision that legalized gay marriage, sent a certified letter this week asking companies to withdraw their support of Equality California, a nonprofit organization that is helping lead the campaign against Proposition 8.

"Make a donation of a like amount to ProtectMarriage.com which will help us correct this error," reads the letter. "Were you to elect not to donate comparably, it would be a clear indication that you are in opposition to traditional marriage. ... The names of any companies and organizations that choose not to donate in like manner to ProtectMarriage.com but have given to Equality California will be published."

The letter was signed by four members of the group's executive committee: campaign chairman Ron Prentice; Edward Dolejsi, executive director of the California Catholic Conference; Mark Jansson, a member of The Church of Jesus Christ of Latter-day Saints; and Andrew Pugno, the lawyer for ProtectMarriage.com. A donation form was attached. The letter did not say where the names would be published."
11.13.2008 7:02pm
Spitzer:
Eugene:

I mentioned this in a related threat, but I'd love to hear your opinion on this: to what extent can a copyright holder exercise a boycott on a commercial producer, supplier, or consumer of his copyrighted products without running the risk of incurring antitrust liability? It is one thing to boycott particular end-consumers (such as a political campaign) but it is quite a different matter when the target of your boycott is one of your commercial customers. To be sure, copyright creates a special exception to the antitrust laws, but there are still limits to the exception.
11.13.2008 7:06pm
tvk:
Eugene, I am disappointed. It seems to me rather worth pointing out that you believe the California law protecting individual employees from retaliation for their political beliefs goes too far and should be repealed.

Moreover, in the increasingly polarized society that we have, I would not be surprised if this sort of thing happens more often. Eckern holds quite reasonable views (at least if reasonable is defined as "widely shared") in the context of our general society, but views that are heretical within the context of his social circle. Are we really vindicating free speech values (Sarah Palin would call them "First Amendment rights") if Eckern gets to keep his job, but every day must face protesters outside, boycotts from clients, and snide remarks from coworkers, all of which is protected under your view of the First Amendment?
11.13.2008 7:06pm
Pragmatist:

And back before 1968, if you were black and wanted to marry a white person, you were prohibited from doing so, but you believe that is okay, since the prohibition on interracial marriage applied to everyone, even those who just wanted to marry within their race?

To ask whether I'm "okay" with it is rather vague. I think such laws are constitutional and non-discriminatory. I also disagree morally with such laws.
11.13.2008 7:06pm
Spitzer:

I mentioned this in a related threat,


Er, the word is "thread".
11.13.2008 7:06pm
Ex-Fed (mail) (www):
Are we really vindicating free speech values (Sarah Palin would call them "First Amendment rights") if Eckern gets to keep his job, but every day must face protesters outside, boycotts from clients, and snide remarks from coworkers, all of which is protected under your view of the First Amendment?



On what principled basis can you prefer the "free speech values" promoted by Eckern's contribution over the "free speech values" promoted by people who want to express their view of his contribution?
11.13.2008 7:09pm
MarkField (mail):

I think such laws are constitutional and non-discriminatory.


Perhaps you should start a campaign to that effect. Get the Supreme Court to reconsider Loving. Maybe you can convince Justice Thomas to write the majority opinion.
11.13.2008 7:14pm
Pragmatist:

Are we really vindicating free speech values (Sarah Palin would call them "First Amendment rights") if Eckern gets to keep his job, but every day must face protesters outside, boycotts from clients, and snide remarks from coworkers, all of which is protected under your view of the First Amendment?

Absolutely. As long as there are no property rights violations or physical harm done to Eckern we are free to sneer at, protest, and boycott, or congratulate, praise, and donate to him all we want. The moment the government takes one step down the path of preventing or filtering such speech will be a loss of liberty many times larger than the right to marry.
11.13.2008 7:14pm
Public_Defender (mail):
One flaw in professor Volokh's argument is that he doesn't give us the criteria to decide what positions are so repugnant that private sanctions are appropriate and what positions are not. Are anti-gay beliefs morally equivalent to anti-Semitic beliefs? Or morally equivalent to a different position on off-shore oil drilling?

Majority opinion can't be the deciding factor because at one time, that would have disallowed boycotts and blacklisting of pro-slavery groups.
11.13.2008 7:16pm
Pragmatist:

Perhaps you should start a campaign to that effect. Get the Supreme Court to reconsider Loving. Maybe you can convince Justice Thomas to write the majority opinion.

I'd love to, but I'm more concerned with Kelo, Roe, and the other poor decision that have a greater impact my life.
11.13.2008 7:21pm
tvk:
Pragmatist: that doesn't sound very pragmatic. And I should note that firing Eckern does him neither physical harm nor a property rights violation (you have no property right in your job unless you are a government employee or an academic with tenure); so by your logic we can fire him, too.
11.13.2008 7:23pm
pluribus:
ragmatist:

It's very simple: If everyone was restricted from sitting in the front of the bus it wouldn't be discrimination. Equivalently, since no one, not even straight people, can marry someone of their own gender (or objects, or animals) it's not discrimination.

Consider a couple of other examples. If everyone was forbidden to speak Spanish, it wouldn't be discrimination, because the ban would apply to English speakers as well as Spanish speakers. If everyone was forbidden to have an abortion, it wouldn't be discrimination, because the ban would apply to men as well as women. If everyone was forbidden to wear a head shawl, it wouldn't be discrimination, because the ban would apply to Christians as well as Muslims. If everyone was forbidden to attend Mass, it wouldn't be discrimination, because the ban would apply to Protestants, Jews, Muslims, Buddhists, Hindus, and atheists, as well as Catholics. Do you see how illogical it is to say that forbidding every one to marry a person of the same sex isn't discrimination, because it applies to heterosexuals as well as homosexuals?
11.13.2008 7:26pm
nicestrategy (mail):
The director didn't just express a political opinion, he expressed the opinion that his personal relationships were better than the personal relationships of many of the people he works with on a daily basis. He claims to respect them, but those claims are hollow. He tolerates. That's not going to cut it. The stage is not an impersonal office environment, a director has to criticize on a constant basis and there is no way to criticize someone effectively without mutual respect. Mutual respect is not defined by one party, it is negotiated by both parties. Don't claim that this man respected his gay co-workers. He thought that he was superior to them on the basis of his sexual orientation and thought that overturning the judgment of the Supreme Court was an urgent social priority because marriage equality was threatening in some way. Furthermore, he contributed to a campaign that engaged in ugly innuendo involving threats to children and slippery slopes to bestiality. Don't pretend that the Yes on 8 campaign was merely trying to preserve an exclusive title to part of a heterosexual nuclear family, even if that was the thinking of some moderate voters -- they based their campaign around fear and lies about gays. That, as much as the outcome, explains the outrage.



As I recall, the LDS church made public a statement that they will take notice of anyone who supports No on Prop. 8 financially and will be held accountable.

Not the LDS Church, but there was a group (Yes on 8 or one of its other institutional sponsors) that sourced some donations to the No campaign and started talking up a boycott of those anti-Christian businesses. Finding a link about this is difficult in the post-election swamp about Prop 8, but I read it in 2 sources.


We're only criticizing you for acting on those desires such as marrying or having sex with other men.

So you think it is God's will that certain people should spend their lives without companionship and love? Or do you believe that gays should marry opposite sex partners and become pathological liars?

"Thank" you very much for the 2 completely crummy options that you have determined are appropriate for my life.
11.13.2008 7:32pm
Pragmatist:
tvk: What's not pragmatic about letting people do as they wish as long as it brings no physical injury to others?

I am currently employed by (and personally advocate) at-will employment. The States can make additional laws restricting employment if they wish, and I don't know California's so will not comment on them.
11.13.2008 7:36pm
whit:

There is a rational reason to prevent incest (genetic effects on children). There is no rational reason to prevent homosexual sex (other than pure animosity).


neither of which is relevant.

i've already debunked the genetic argument before. as mentioned many times, we also criminalize SAME SEX incest and opposite sex (complementary sex, actually :) ) incest even where one or both of the persons is sterile and thus cannot have the genetic issues.

so, the genetic issue is NOT the reason. the reason is morality (whether we want to admit it or not).

and no law I am aware of (especially post lawrence v. texas) criminalizes homosexual sex.

whether or not it is "rational" to do so.
11.13.2008 7:53pm
Pragmatist:
pluribus:
No, and none of what you described is discriminatory (except possibly the banning the attendance of a Catholic Mass, which would depend on how the ban was worded).


So you think it is God's will that certain people should spend their lives without companionship and love? Or do you believe that gays should marry opposite sex partners and become pathological liars?

"Thank" you very much for the 2 completely crummy options that you have determined are appropriate for my life.

I'm not God's mouthpiece and I have no intention of passing off my opinion as His will. What I do know is that a great many people go through their life miserable and alone, some of them even while married. Whether you lie or not and whether you marry or not is up to you, but just because you desire something doesn't make it right and doesn't obligate others to accept it.
11.13.2008 7:54pm
cmr:
I'm so tired of the gays at this point. Really. Didn't, like, a month ago, we have huge financial crisis and a scary bailout and a long-fought and seemingly pointless war and a health care crisis and an ailing planet? Didn't we just elect a new President who, while we all think he's smart and charismatic, is young and new and we're not sure how well he will govern and who he will pick in his cabinet?

Why does it seem like a month ago, heck, even a week ago, we were over gay marriage and abortion being top-tier political issues? Was that just a lie to get people on-board with gay marriage?
11.13.2008 7:57pm
whit:

And back before 1968, if you were black and wanted to marry a white person, you were prohibited from doing so, but you believe that is okay, since the prohibition on interracial marriage applied to everyone, even those who just wanted to marry within their race?



this is a dumb analogy. (i support gay marriage fwiw).

laws against interracial marriage were CONTRARY to traditional marriage. interracial marriage was practiced in countless societies for centuries.

the thing that few gay marriage proponents will admit (but I will, despite the fact that I support gay marriage) is that the gay marriage ~ interracial marriage argument is ridiculous.

men and women are fundamentally different. that difference is immutable (save metric #$($#($loads of surgery and hormones) and quite profound.

"traditional marriage" is between two different (and arguably complementary) types of human beings - men and women.

the difference between the races is not comparable. they are quite mutable (over generations through marriage) and are entirely environmental in origin. they are simply a minor variation due to differences in environment (climate etc.).

it is not comparable to the difference between the sexes. this is a fact of biology, not morality.

i support gay marriage, but i recognize that it REDEFINES marriage to do so. interracial marriage does not redefine marriage. it simply returned marriage to the traditional definition
11.13.2008 7:59pm
nicehonesty:
The director didn't just express a political opinion, he expressed the opinion that his personal relationships were better than the personal relationships of many of the people he works with on a daily basis. He claims to respect them, but those claims are hollow. He tolerates. That's not going to cut it.


And the mask slips...
11.13.2008 7:59pm
Brian K (mail):
i've already debunked the genetic argument before. as mentioned many times, we also criminalize SAME SEX incest and opposite sex (complementary sex, actually :) ) incest even where one or both of the persons is sterile and thus cannot have the genetic issues.

on a related note, thanks for shooting down the argument that marriage has anything at all to do with children.
11.13.2008 8:07pm
tvk:
Pragmatist,

I don't think a per se rule of "no government interference unless an act causes physical injury to others" would be widely regarded as a pragmatic rule. More like libertarianism extremis. Not necessarily the wrong rule, but its rigidity seems to me the opposite of "pragmatic."

I am also not understanding your distinction between state and federal restrictions. There is, of course, a federalism debate on this as all things; but I would leave aside incorporation and commerce clause power here since that is water under the bridge. Given that, is there any difference between whether it is a California state law or a Federal law that bars firing employees for their political expression in their own time?

And if your distinction is between a legislature made law and a constitutional right, I am not advocating that you have a constitutional right to be free from boycotts. I am only point out that there are values at stake that are similar to values that are reflected in the First Amendment.
11.13.2008 8:09pm
Brian K (mail):
"traditional marriage" is between two different (and arguably complementary) types of human beings - men and women.

this is not true. links have been posted on this site previously showing that there was same sex marriage in various societies in the past.
11.13.2008 8:09pm
Don Altabello (mail):
I'm just dropping in on the tail end of this discussion. However, using the logic that pro-gay marriage decisions have made thus far, isn't even expansion of marriage to homosexuals not going far enough.

I won't repeat the arguments about polygamy and incest--what I am talking about goes much further.

How could we really justify denying the rights of marriage to any couple or group (of a reasonable size) b/t people who have some sort of economic co-dependency among themselves? Children--as Bowers v. Harwick said, there is no requirement that marriage result in procreation.

I've asked this question on other blogs--but nobody really answers this question. Fact is--I heard this argument in a note in my family law book last year.
11.13.2008 8:13pm
Public_Defender (mail):
What's more important to you? Your marriage or your job? Any happily married person would say his or her marriage is more important.

So why is it surprising that when a person attacks the marriage of thousands, including people he works with and for, they want to put his job at risk? Who has performed the greater evil? The destroyer of marriages or the destroyer of a job?
11.13.2008 8:16pm
whit:

on a related note, thanks for shooting down the argument that marriage has anything at all to do with children.



no problem. i'm for gay marriage, and haven't used that argument myself.

i do think marriage evolved as an institution to best foster the raising of children. but in modern society has clearly gone beyond that.
11.13.2008 8:18pm
Public_Defender (mail):
Let me put it another way. The LDS and Catholic churches chose to attack the families of thousands of gays and lesbians. Who wouldn't fight back hard when their families are attacked?

You don't fight harder than when your family is at stake. You also tend to justify measures you wouldn't justify for lesser matters.
11.13.2008 8:21pm
tvk:
Public Defender: That is a false analogy. Kind of like the husband who says I get to make the major decisions in our house because I get to decide our position on relations with China, while my wife decides where the family goes on vacation. Eckern was a very, very minor participant in a movement to destroy some marriages. The boycotters were individually very large participants in a movement to destroy his job.
11.13.2008 8:24pm
whit:

this is not true. links have been posted on this site previously showing that there was same sex marriage in various societies in the past.



cmon dood. be realistic. the exception proves the rule.

that would be like saying horses are part of the traditional definition of consuls, since caligula appointed his.

"it happened once. so it's traditional!"

keeerist.

prior to very recent history, same sex marriage has been ALMOST completely nonexistent in western society (of which we are part, and of which our marriage tradition evolved).

anybody who claimed that same sex marriage NEVER existed in the past is an ignoramus. but clearly it has not been part of traditional marriage when it made up .000~1% of marriages.
11.13.2008 8:24pm
wooga:

Good point, just like laws that banned blacks from sitting in the front of the bus wasn't discrimination against people for "being black". After all, "wanting to sit in the front of the bus" isn't an essential characteristic of "being black".


Adam J,
You know why the bus discrimination was wrong? Because it set one rule for blacks, and a different one for whites. You could not sit in at the front while black. In contrast, Prop8 makes no distinction in its applicability to heterosexuals versus homosexuals. The law is not "everyone can marry whoever they love, except for gay people, who aren't allowed to marry at all." Everyone is restricted equally, as it simply defines marriage as between one man and one woman. Surely you don't contend that all married men are straight?

If a law was passed which said "Nobody wearing a FUBU shirt can sit in the front of the bus," it would disproportionately affect black people, and would almost certainly be motivated out of animosity towards black people. But it would not be a violation of equal protection laws, as wearing the shirt is a behavior independent of race.

I voted against Prop8. But I'm not about to believe that there is some "right" to gay marriage, unless someone can articulate where that right is located.
11.13.2008 8:27pm
tvk:
You don't fight harder than when your family is at stake. You also tend to justify measures you wouldn't justify for lesser matters.

Please clarify what you mean by this. If you mean that this allows us to understand and analyze why the boycotters and protesters are doing what they are doing, I agree. What I don't agree is if you mean that we should take the protesters side on this for that reason.

The 9/11 terrorists believed that they were defending their homeland and saving their souls. For some people, there is nothing that they fight harder for than that. That doesn't make it right.
11.13.2008 8:31pm
Public_Defender (mail):

Eckern was a very, very minor participant in a movement to destroy some marriages. The boycotters were individually very large participants in a movement to destroy his job.


"Minor" participants get a pass? At what level of participation would you permit a boycott. Also, $1000 is quite a sizable donation, at least for someone earning a public defender's pay.

This guy helped destroy the marriages of thousands, and then people whine that he loses a job?

And my later point remains--if you attack someone's family, expect that person to fight back hard. If you attack the families of thousands, expect lots of people to fight back hard.
11.13.2008 8:34pm
Bob from Ohio (mail):
No one ever expects the gay Inquisition!
11.13.2008 8:39pm
wooga:

Consider a couple of other examples. If everyone was forbidden to speak Spanish, it wouldn't be discrimination, because the ban would apply to English speakers as well as Spanish speakers. If everyone was forbidden to have an abortion, it wouldn't be discrimination, because the ban would apply to men as well as women. If everyone was forbidden to wear a head shawl, it wouldn't be discrimination, because the ban would apply to Christians as well as Muslims. If everyone was forbidden to attend Mass, it wouldn't be discrimination, because the ban would apply to Protestants, Jews, Muslims, Buddhists, Hindus, and atheists, as well as Catholics. Do you see how illogical it is to say that forbidding every one to marry a person of the same sex isn't discrimination, because it applies to heterosexuals as well as homosexuals?

Pluribus,
All of the points you raise above.... are governed by specific rights other than equal protection. Why not add: "if all guns were banned, it wouldn't be discrimination." Do you not see that all of your points are logically irrelevant? (unless you are claiming SSM is protected by the first amendment!)

Incidentally, there is a kind of important distinction between discrimination, which is pretty much every decision you make in your life, and unconstitutional discrimination.
11.13.2008 8:43pm
pluribus:
wooga:

Prop8 makes no distinction in its applicability to heterosexuals versus homosexuals.

This is nonsense. Proposition 8 applies only to homosexuals. Heterosexuals don't need a legal ban to prevent them from marrying members of their own sex. They have no desire to do so, and wouldn't even if it was legal. Only homosexuals are affected by the legal ban.
11.13.2008 8:43pm
Brian K (mail):
dood
??

prior to very recent history, same sex marriage has been ALMOST completely nonexistent in western society (of which we are part, and of which our marriage tradition evolved).

the same can be said for interracial or interreligous or inter-society level (a rich prince would not marry a serf) or any other kind of "inter-" you can think of. all of these almost never happened until very recently. and yet they are all defined as part of "traditional" marriage. gee, i wonder why that is? it couldn't be because of animosity towards gays or anything like that...
11.13.2008 8:45pm
tvk:
pluribus and wooga, I think we all learned this in first year law school. This is called a "facially neutral law with disparate impact". Like a ban on both rich and poor people sleeping under bridges. Wooga is emphasizing the "facially neutral" part and you are emphasizing the "disparate impact" part.
11.13.2008 8:47pm
Zywicki (mail):
Randy R.:
This doesn't seem that hard to me--if the Protectmarriage.com letter was a threatening letter then that was the wrong thing to do and they should be condemned. And so would be blacklisting someone for their political views. And it was wrong when there were efforts to get ahold of the names of NAACP supporters in the 1960s so that racists could go and intimidate them. And it was wrong to try to get Communists blacklisted from Hollywood just because they were Communists.

And if the guy actually acted in a manner at work that offended employees or other constituents, then that's a problem. But from all appearances, no one even knew this guy had donated to the pro-8 cause until they did a dragnet search of donors.

There seems to be a presumption that being in favor of Prop 8 is per se bigotry or a per se demonstration of anti-gay views. Whatever one thinks of it, it is simply not tenable to characterize it as per se bigotry--perhaps some supporters are anti-gay, but I find it hard to believe that the 5 million Californians who voted against it are all bigots or are too stupid to understand the arguments of the anti-8 side.

People can do whatever they want--it is a free country. But it doesn't seem like that controversial of a position to say that I'd just prefer that people's livelihoods wouldn't be threatened just because some others don't like their political views, whether Communist, gay rights, pro-life, environmentalist, or anti-war. I'd just prefer to live in a society based on principles of toleration and "live and let live" on political views and not have people's livelihoods threatened just because they hold unpopular political views, unless they are obnoxious about them or how they pursue them.

Obviously this is a big issue to some. But Communism was also a big issue--Communist ideas are responsible for the murder of millions and millions of people around the world and the enslavement of billions of others. And there are many pro-life supporters who believe that abortion is murder and to support abortion is to be complicit in the mass murder of a million defenseless babies a year (I'm not saying it necessarily is correct, I'm just saying it is their position). They are perfectly in their rights to boycott anyone company they want to, say because the company contributes to Planned Parenthood. But do I really think society would be better off if these people spent their time "outing" those who contribute to abortion rights groups and trying to get them fired? Or would it be better to tell that person, "Look, I know you feel strongly about this, but I really think it crosses the line to try to get someone fired (or intimidate them into resigning) just because you don't like their political views."

People have the righ to do whatever they want, but I just think that we'd all be better off if we maintained a recognition that politics is not everything and that people should be allowed to hold and express views that we find obnoxious without threatening them, vandalizing their property, or threatening their livelihood. It's not a profound philosophical proposition--it is simply a proposition about the type of society I'd prefer to live in as opposed to the alternative.
11.13.2008 8:52pm
whit:

the same can be said for interracial or interreligous or inter-society level (a rich prince would not marry a serf) or any other kind of "inter-" you can think of. all of these almost never happened until very recently. and yet they are all defined as part of "traditional" marriage. gee, i wonder why that is? it couldn't be because of animosity towards gays or anything like that...



false.

interracial marriage has been relatively common throughout history, in western (and other) societies. of course it was more common in cases where societies were multiracial, or came into contact with other races frequently.

heck, in some societies, interracial marriage was MANDATED in certain cases.

again, i hate being on the same side of people who can't accept the simple logical difference between RACES and the two sexes.

marriage between people of the opposite sex is a pairing of VERY distinct and biologically different entities.

it is simply not analogous to the interracial marriage issues in the past.

do you understand that men and women are substantially DIFFERENT? for example, men have some organs that women don't have, and vice versa. and a completely different hormonal milieu.

the onyl reason we have races is because people evolved in different climates/environments. given sufficient time, intermarriage, etc. races wouldn't even exist.

the same cannot be said for the two sexes. they are fundamentally different.

i hate to get all pedantic, but these differences are pretty clear.

marriage has been a meeting of these two very different creatures, so to speak.

gay marriage CHANGES marriage.

i am personally FOR it, but i'm not going to stick my head in the sand like you, ignore biology (and endocrinology and...) and pretend that there is not something fundamentally between a pairing of man/woman vs. a pairing of man/man and woman/woman.

it just astounds me that people are so intellectually dishonest that they will not admit this distinction.

actually, it doesn't really astound me. it's typical when people discuss issues which they are heavily emotionally involved.
11.13.2008 9:03pm
whit:

pluribus and wooga, I think we all learned this in first year law school. This is called a "facially neutral law with disparate impact". Like a ban on both rich and poor people sleeping under bridges



or a law against murder.

it is facially neutral, but it disparately impacts men. last i checked by a factor of about 10:1
11.13.2008 9:04pm
Pragmatist:
tvk,
Few rules are absolutely rigid, for example serious death threats and unsubstantiated accusations of crimes are likely exceptions, but as a general rule I think it's both pragmatic and desirable.

I believe there's a world of difference between a state and the federal government enacting these kinds of laws. Again putting aside incorporation issues, each has to enact laws in accordance with their own constitution. While it could be argued that federal employment laws might not violate the federal constitution I don't see how any preventing the citizen harassment you don't like could be acceptable.

I am interested in what values you feel are at stake, being able to express your opinion without reproach or just to be generally free of harassment?
11.13.2008 9:17pm
tvk:
Pragmatist,

The value that I think is at stake is the ability to express your opinion freely. Your move is to ask me to put more content on "freely"; and force me to define it more specifically (e.g. without fear of reproach from anyone) and show that it leads to unacceptable conclusions at the bottom of the slippery slope. This is known as a "level of abstractions" move. But I will resist that move by pointing out that this is the difference between a First Amendment value (which can be somewhat abstract) and a First Amendment rule (which cannot).
11.13.2008 9:24pm
pluribus:
tvk:

pluribus and wooga, I think we all learned this in first year law school. This is called a "facially neutral law with disparate impact". Like a ban on both rich and poor people sleeping under bridges. Wooga is emphasizing the "facially neutral" part and you are emphasizing the "disparate impact" part.

Thanks for reminding me. Actually, we took up Con Law in the second year, if I recall correctly. The example of rich and poor people sleeping under bridges (and rich and poor people stealing bread--thanks Victor Hugo) is the best of all.
11.13.2008 9:35pm
ChrisIowa (mail):
Pragmatist

I'd love to, but I'm more concerned with Kelo, Roe, and the other poor decision that have a greater impact my life.

I'm wondering how Roe has an impact on your life?
11.13.2008 9:37pm
Pragmatist:
tvk,
What legal force does (or should) a First Amendment Value have as opposed to a First Amendment Rule?

ChrisIowa,
I have no desire to pursue this line of discussion here, but I will say that my girlfriend having the sole legal authority to murder my unborn child has a very real and immediate impact on my life.
11.13.2008 10:00pm
Waldo (mail):
In this case, I'll have to admit that the boycotters have a point. While I don't support same-sex marriage, people have the right to spend their money where they wish. Public disclosure of political contributions is also a good thing (sunlight being the best disinfectant, and all). Although I'd much prefer it applied to Presidential candidates as well.

Where this strategy will fail for advocates of same-sex marriage is when people realize that their jobs and livelihoods are at risk because they have politically incorrect opinions. Every time an employee outside the entertainment industry resigns as a result of opposition to same-sex marriage, another two or three people are likely to vote against same-sex marriage. Protests against Mormon and Catholic churches and racial epithets against Black Americans don't help either.

People have the right to protest or boycott anything they want. But be careful what you wish for.
11.13.2008 10:06pm
David Schwartz (mail):
You know why the bus discrimination was wrong? Because it set one rule for blacks, and a different one for whites. You could not sit in at the front while black. In contrast, Prop8 makes no distinction in its applicability to heterosexuals versus homosexuals. The law is not "everyone can marry whoever they love, except for gay people, who aren't allowed to marry at all." Everyone is restricted equally, as it simply defines marriage as between one man and one woman. Surely you don't contend that all married men are straight?

If a law was passed which said "Nobody wearing a FUBU shirt can sit in the front of the bus," it would disproportionately affect black people, and would almost certainly be motivated out of animosity towards black people. But it would not be a violation of equal protection laws, as wearing the shirt is a behavior independent of race.
This is obviously completely wrong. To see it, consider a law prohibiting the worship of Jehovah but permitting the worship of Jesus. Jews and Christians alike are restricted equally, right? They can both say the same set of prayers.

Are you claiming wanting to marry a member of the same sex is behavior independent of being homosexual? Isn't that as mind-bogglingly obviously idiotic as saying that wanting to pray to Christ is independent of being Christian?
11.13.2008 10:22pm
Pragmatist:

This is obviously completely wrong. To see it, consider a law prohibiting the worship of Jehovah but permitting the worship of Jesus. Jews and Christians alike are restricted equally, right? They can both say the same set of prayers.

That would not be discriminatory, although it would still be wrong because it violates the first amendment freedom of religion.

Are you claiming wanting to marry a member of the same sex is behavior independent of being homosexual? Isn't that as mind-bogglingly obviously idiotic as saying that wanting to pray to Christ is independent of being Christian?

We're not saying they're independant, we're saying it doesn't matter that only some group wants to do some illegal activity, so long as it's enforced againt everyone it's not discrimination.
11.13.2008 10:56pm
hawkins:

Communist ideas are responsible for the murder of millions and millions of people around the world and the enslavement of billions of others


Hate to point out the obvious. But so are religious.
11.13.2008 10:59pm
tvk:
Pragmatist: Well, that depends on who you talk to. But I can imagine several places where the existence of generally agreed upon free-speech values can impact law without much controversy. E.g. whether legislation that converts the abstract free-speech value into a specific rule--no firing employees for private speech in their own time--passes the rational basis test or even heightened scrutiny. Moreover, when we are debating policy, i.e., whether the California statute is a good idea, I think the values reflected in the First Amendment at some level of abstraction comes into the debate; not because it is in the First Amendment per se, but because they are values widely shared. And this comes to my original disagreement with Eugene, because he thinks that the California statute goes to far (at least he opposed such a statute in his article).
11.13.2008 11:05pm
ChrisIowa (mail):
Pragmatist

I have no desire to pursue this line of discussion here,

Very convenientpragmatic of you. Even though you brought it up.

but I will say that my girlfriend having the sole legal authority to murder my unborn child has a very real and immediate impact on my life.

So you are a male, and you have not discussed the situation with your girlfriend, but you are not willing to cede to her the disposition of your seed should your seed happen to succeed in reaching it's conventional goal.
11.13.2008 11:05pm
Oren:

we're saying it doesn't matter that only some group wants to do some illegal activity, so long as it's enforced againt everyone it's not discrimination.

So we can ban praying to Christ so long as the ban applies equally to Christians and non-Christians alike? Of course not, freedom to worship according to the dictates of your conscience is not a right that can be taken away period.

Also, case law about man-seed has pretty clearly stated that in cases of consensual sex, the male relinquishes all rights to said seed.
11.13.2008 11:42pm
Adam B. (www):
I'm glad folks enjoyed (did you?) my post at dKos. One clarification:
I'm so tired of the gays at this point. Really. Didn't, like, a month ago, we have huge financial crisis and a scary bailout and a long-fought and seemingly pointless war and a health care crisis and an ailing planet? Didn't we just elect a new President who, while we all think he's smart and charismatic, is young and new and we're not sure how well he will govern and who he will pick in his cabinet?

Why does it seem like a month ago, heck, even a week ago, we were over gay marriage and abortion being top-tier political issues?
Because anti-gay marriage folks in California forced it on the ballot. Otherwise, it'd be a settled issue.
11.13.2008 11:47pm
David Schwartz (mail):
That would not be discriminatory, although it would still be wrong because it violates the first amendment freedom of religion.
So as long as you can find a suitable proxy, you can in fact discriminate and it's not discriminatory. Just don't say "blacks cannot" simply substitute in some suitable proxy for "black" that isn't a direct reference to skin color.

So would a prohibition on inter-racial marriage even be discriminatory in your book? After all, it prohibits members of all races equally.

How about a requirement that all people who wish to testify swear to god? Or that all public employees be sworn in on a Christian Bible. That treats members of all religions and atheists precisely the same.

Heck, even a requirement that a person be a member in good standing of a state-approved Christian church wouldn't discriminate. Since both Jews, Christians, and atheists would equally be required to attend Christian churches.

How about only having men's restrooms in State buildings. That doesn't discriminate against women, right? It doesn't say women can't do anything men can do.

It's hard to believe you're serious. You would simply redefine "discrimination" until it doesn't mean anything.
11.13.2008 11:50pm
David Schwartz (mail):
but I will say that my girlfriend having the sole legal authority to murder my unborn child has a very real and immediate impact on my life.
I'm sorry that slavery is illegal and that this inconveniences you. I would like to buy a spare kidney, and I am unable to pursue this dream of mine as well.

Sorry, neither you nor your unborn children can contract for the use of another person's body should they wish to cease to offer it. The intimate use of another person's body is always at their discretion.
11.13.2008 11:53pm
Brian K (mail):
false.
simply stating this does not make it true.

interracial marriage has been relatively common throughout history, in western (and other) societies. of course it was more common in cases where societies were multiracial, or came into contact with other races frequently.
i mentioned more than just race. the fact is that throughout history marriage was only acceptable between two relatively similar people. people were shunned for marrying (assuming they were legally allowed to do so) others outside of their caste, religion, ethnicity or whatever. that is the traditional marriage. we've blown past all of those and the anti side keeps redefining "traditional" marriage into whatever it is they want.

heck, in some societies, interracial marriage was MANDATED in certain cases.
what were those words you used? oh yeah, the exception proves the rule.

again, i hate being on the same side of people who can't accept the simple logical difference between RACES and the two sexes.
i hate being on the same side as arrogant jerks...and yet, here we are.

you keep claiming
and what you are doing is different how?

it is simply not analogous to the interracial marriage issues in the past.
when the arguments used are the same, it is that simple.

do you understand that men and women are substantially DIFFERENT?
do you not understand that this is the same argument that was used to prevent interracial marriage? that the races are "substantially DIFFERENT"

gay marriage CHANGES marriage.
depends on your definition of marriage. it only changes marriage if you assume it has something to do with reproduction...but we already agreed that it does not.

i am personally FOR it, but i'm not going to stick my head in the sand like you
for someone who claims this you sure are doing such a good job of it.

it just astounds me that people are so intellectually dishonest that they will not admit this distinction.
nice strawman you got there. i've never said the sexes are the same. and you call me intellectually dishonest? talk about arrogant...
11.13.2008 11:54pm
Randy R. (mail):
Zwicky: "People have the righ to do whatever they want, but I just think that we'd all be better off if we maintained a recognition that politics is not everything and that people should be allowed to hold and express views that we find obnoxious without threatening them, vandalizing their property, or threatening their livelihood. "

Basically, you are making a plea for civility. I think it's a good one, but unfortunately, sometimes things go beyond civility by necessity. As you mention Communism was deadly serious to some people. So is religion. So is abortion. And often supporters and/or opponents have, throughout history, resorted to violence to get their way, or because they believed that they were backed in to a corner.

The problem is that gay marriage isn't a life or death issue. It's much more important to those who want it (gay people) than to those who oppose it. why? Because those who oppose it, their lives will not change one bit whether gay marriage is passed or not. Dont' believe me? Ask your average person in Massachusetts, Canada, Belgium, Norway and so on, and they will tell you that their lives haven't changed at all.

There is an exception: There are people who are so hateful towards gays that it becomes their life. They believe that they must discriminate against gays, and if they don't have that ability, then their 'rights' are trampled on, and isn't that terrible.

Worse, there are those who are so afraid homosexuality that they mistakenly believe that straights might somehow 'choose' to be gay if it's look glamorus enough. Of course, all the scientific evidence points to that fact that being gay isn't a choice, so there is really nothing to worry about. If your kid isn't gay, there is nothing I can do to convert them.

But by refusing to believe the truth, it opens them up this huge fear that anyone might become gay, and isn't that terrible!

Most anti-gay cites will say that gays are only about 3% of the population. If that's true, why all the resources devoted to demonizing and destroying such a small percentage of the population. Only a small fraction of gays actually get married, so the percentage of gays who get married is vanishingly small. It's important to gays, but as an impact upon society? Zero.
11.14.2008 12:13am
Grover Gardner (mail):
Can we clarify something, just for the record? Eckern was an "employee" of the theatre only in the sense that a CEO is an "employee" of a corporation. The Artistic Director is not only the most powerful person in that organization, but is also its public face and persona.

Think of the CEO of Ford driving a Toyota, and I think you'll get the idea.
11.14.2008 12:24am
Cornellian (mail):
What's so astoundingly dumb about that guy is that despite having worked at the California Musical Theater for 25 years, where he was undoubtedly working around lots and lots of gay people, he nevertheless claimed to have been surprised at the reaction to his donation to the "Yes on 8" campaign. For all we know, some of those co-workers of his may have actually been married and yet he can't fathom why they might have had a negative reaction to his contribution to a campaign to vote their marriages out of legal existence. How does someone so clueless about human nature manage to get a job in a theater in the first place?
11.14.2008 12:27am
Oren:

How does someone so clueless about human nature manage to get a job in a theater in the first place?


Sometimes it's an asset.
11.14.2008 12:40am
Pragmatist:

Very pragmatic of you. Even though you brought it up.

I don't find it appropriate for this thread, but since others also want to talk about it I'll proceed anyway.

So you are a male, and you have not discussed the situation with your girlfriend, but you are not willing to cede to her the disposition of your seed should your seed happen to succeed in reaching it's conventional goal.

Assume what you want about my gender and relationship, it has no bearing on this discussion. I don't care about the disposition of my seed, I care about the disposition of any humans it creates.


Sorry, neither you nor your unborn children can contract for the use of another person's body should they wish to cease to offer it. The intimate use of another person's body is always at their discretion.

Really? So if I were to catch you falling off a cliff I can suddenly decide that I want to cease allowing you to use my body to survive and drop you to your death? In most circumstances we are legally obliged to take reasonable action to save human life, except for the unborn whom we can murder in a few hours with impunity.

So we can ban praying to Christ so long as the ban applies equally to Christians and non-Christians alike? Of course not, freedom to worship according to the dictates of your conscience is not a right that can be taken away period.

Of course not, due to the freedom of religion, not because it would be discriminatory.


So would a prohibition on inter-racial marriage even be discriminatory in your book? After all, it prohibits members of all races equally...
It's hard to believe you're serious. You would simply redefine "discrimination" until it doesn't mean anything.

It seems "discrimination" has become a catch-all for anything people don't like. What it really means is treating some group categorically different from others. So yes, by definition most of those examples are not discrimination, although some violate the freedom of religion. The one exception is male/female bathrooms, all of which constitute sex discrimination (which the courts have determined is acceptable).
11.14.2008 1:11am
Redlands (mail):

Happyshooter- Yeah, shocking how gay people discriminate against people who discriminate against gay people...


Prop. 8 constitutes discrimination against gays? Thought it was just meant to amend the California constitution. The people who voted for Prop. 8 did so with the intent to discriminate? They weren't just indicating their belief that marriage should be restricted to marriage between a man and a woman? How did an expression for this preference get turned into discrimination?
11.14.2008 1:12am
whit:

do you not understand that this is the same argument that was used to prevent interracial marriage? that the races are "substantially DIFFERENT


except in that case it was a false argument provable by science.

if you don't understand biology, endocrinology, etc. (iow, if you are ignorant), then you can take your position

if you actually understand biology (as you clearly don't), then your position is laughable. typical of the anti-scientific emotional appeal

let me make this simple for you. mammals, which homo sapiens are, have two genders.

these genders are different.

in the case of human beings, females and males have several different organs and internal structures, hormonal milieu, and all sorts of other stuff.

these differences are not "socially constructed" and cannot be diluted by intermarrying. (since two women can't give birth to a different variation, two men can't... etc.)

there are very minor biological differences between the races (and some ethnic groups), which manifest (for example) in susceptibility to certain diseases (tay-sachs, sickle cell anemia, etc.) but there is still more individual variation amongst individuals than there is difference between races (which have fuzzy borders, anyways)

that is not true of the two sexes.

if you cannot grok this qualitatitve difference, then go back to biology class

it saddens me to be on the same "side" as somebody who is so willfully ignorant, but it wouldn't be the first time.

intellectual honesty is desirable. many pro-prop 8 advocates were intellectually dishonest (as has been frequently pointed out), but many (such as you) on the other side are equally dishonest.

barack obama is multiracial. that's a product of his parents being of different races.

that's relatively easy to achieve and quite common

genders don't work that way.

men have completely different organs that affect the hormonal milieu, brain development, etc. from women.

it is a robust difference. it is NOT comparable to racial differences. racial differences ARE primarily "skin deep" as trite as that sounds.

there is a heck of a lot UNDEr the skin (ovaries, hormones, testes, uteri, etc.) that differentiate men from women otoh.

i support gay marriage. i don't support ignorant arguments for gay marriage. like the one that analogizes racial differences with the differences between the sexes
11.14.2008 1:16am
Bruce2:
I'm not a lawyer, so I'm probably missing something here, but:

(1) It's okay for someone who believes in legalizing gay marriage to refuse to sell his goods/services (in this case, a license to produce his plays) to this theater because its manager supports making gay marriage illegal.

(2) Presumably, then, it would be okay for someone who's against legalization of gay marriage to refuse to sell his goods/services to a theater because its manager supports legalization.

(3) [I think] there's precedent that it's not okay for someone to refuse to sell his goods/services to a theater just because the manager is gay, even if their religious beliefs are that homosexuality is wrong (I'm thinking of the wedding photographer case).

(4) But (1) and (2) seem to imply that the converse of (3) isn't true; although religious belief is not enough to allow denial of service based on homosexuality, homosexuals could deny service to someone based on that person's beliefs (including religious beliefs).

Or does the law make a different distinction, between goods (e.g., a play) and services (e.g., photography)? Or does it make some other distinction I'm missing?

I'm not trying to make a point one way or the other; I'm just looking for clarification.
11.14.2008 1:28am
andinista (mail):
Three questions.
1. Randy R says [paraphrasing] dang near everybody in the theater trade is homosexual. Is this a good thing?

2. The personal is now political. It's now OK to terrorize and punish our fellow citizens without qualms, based on their reasoned political choices. Really, Eckern had 1 vote and contributed $1000, which means he by himself had infinitesimal effect on the outcome, and yet he's a monster to be driven from society. Are you sure this is how you want it? A respectable, upstanding, hardworking asset to the community is to be destroyed for one reasoned vote? What makes you so sure?

3. Eric Rudolph was an evil domestic terrorist, but apparently the person who just sent mysterious white powder to the Mormon Temple is a noble defender of his/her family, driven to extreme acts by the violence of the will of the people. Are you sure this is where you want to go?

And finally, the irony. A group of people, who We The People choose not to provide additional legal protection for the right they have always had, are now terrorizing another minority group who have been forcibly denied the selfsame right for over a hundred years.
11.14.2008 1:42am
Cornellian (mail):
It's now OK to terrorize and punish our fellow citizens without qualms, based on their reasoned political choices.

Refusing to go to his plays is "terrorizing" him? Wow, I've been inadvertently terrorizing live theater all my life.
11.14.2008 1:45am
tvk:
Cornellian, give me the snide line after all the major client of your firm collectively refuse to hire the firm again until they fire all the black associates and the Communist-sympathizing partners. Have liberals already forgotten that elite PC opinion was not always a monolithic block that will shield them from boycotts and other retaliatory action?
11.14.2008 2:16am
pluribus:
Those who argue that the ban on gay marriage is not discriminatory are trying their best to obfuscate the issue. At bottom, the law says: Heterosexual marriage is permitted. Homosexual marriage is not. That is a clear disctrimination in favor of heterosexuals and against homosexuals. Period.
11.14.2008 6:50am
Public_Defender (mail):

I wrote: You don't fight harder than when your family is at stake. You also tend to justify measures you wouldn't justify for lesser matters.

Response: Please clarify what you mean by this. If you mean that this allows us to understand and analyze why the boycotters and protesters are doing what they are doing, I agree. What I don't agree is if you mean that we should take the protesters side on this for that reason.

The 9/11 terrorists believed that they were defending their homeland and saving their souls. For some people, there is nothing that they fight harder for than that. That doesn't make it right.


Defending one's family has a higher place in Western tradition and law (and I understand many other traditions and laws). Often, you are allowed to use force to protect a family member when you would not be allowed to use force to protect others. A spouses have very specific legal duties to each other. Parents (gay parents included) have very specific and extensive legal duties to their children.

When you attack someone's family (and all Proposition 8 supporters attacked thousands of families), you can expect a fierce response. And that response would be far more justified than if it were about, say, whether a certain tax rate should go up or down.
11.14.2008 6:59am
Another side to the debate?:
With all due respect to the homosexuals or persons sympathetic to homosexual rights complaining about California Proposition 8, it does not ONLY impact you. What of an asexual person's rights?

One may wish to have all the marriage benefits (I am actually not from California, so I am unaware if the homosexual [are there also heterosexual?] civil unions give ALL benefits) and to share those benefits with one of the same sex, but have no desire for sexual relations; in other words, it's an economic proposition.

I understand that one objection may be that "an asexual person doesn't have to marry a homosexual but may marry on of the other sex," but why would that matter? If one has a so-called right to marry (for I cannot recall if the right has been deemed fundamental), then ought one be able to marry whomever that person desires? I would also use this rejoinder if another objection is that "there are not many asexuals so the impact will not be as great as on homosexuals." In fact, I do believe that this retort is of the same spirit as the homosexual claim.

How does this constitutional change (for there is debate on whether it's an amendment or a revision) not affect asexuals as well? And, I am sorry if the letter of my post is incorrect, but if there is an objection, then respond to the spirit of it (I argue out of ignorance).

Thank you for, if any, response.
11.14.2008 7:00am
Randy R. (mail):
andinista: "1. Randy R says [paraphrasing] dang near everybody in the theater trade is homosexual. Is this a good thing? "

Why would you even ask such a question?

If it weren't for gays, musical theater, regular theater and opera in America simply wouldn't exist. They all rely upon us for its continued vitality in terms of instruction, production and raising money.

Another side: :Sorry, but I really don't understand your post. If a person is asexual, then they are not in a relationship with anyone, in which case they have to interest in getting married. So this whole issue doens't matter to them one way or another.
11.14.2008 7:23am
CJColucci:
I have no problem with people boycotting anyone they choose for whatever reason, What bothers me is when someone who controls the channels of information or entertainment takes the boycott decision out of my hands.
To be concrete, suppose someone objects to the politics of Danny Glover or the religious views of Mel Gibson. If that person decides to boycott Lethal Weapon movies, fine, I can still watch them. If he wants to organize groups to boycott Lethal Weapon movies, fine, I can stil;l watch them. If enough people boycott Lethal Weapon movies so that making them is an uneconomical proposition, and nobody makes them anymore, that's just something I have to live with. What upsets me is when a radio station owner or a group of movie producers decide to boycott [fill in the blank] even though enough of us want to hear or see [fill in the blank] to make it a paying proposition. I'd be hard-pressed to come up with a legal rule separating the two types of conduct, and maybe there isn't one, but I still think there's a difference between boycotts by consumers and boycotss by producers or transmitters.
11.14.2008 7:57am
rbj:
What, over a hundred comments and no one has picked up on this:


It neither is nor, in my view, should be illegal for people to refuse to patronize a theater because of the artistic director's political views.


As Yogi Berra said, "If the fans don't come out to the ball park, you can't stop them."
11.14.2008 8:07am
Another side to the debate?:
Randy R: "If a person is asexual, then they are not in a relationship with anyone, in which case they have to interest in getting married."

First, I am sorry for being unclear in my previous post.

Second, I fail to see why an asexual person could not be in a relationship with anyone; I think that you are presupposing that all close relationships have an aspect of being sexual in nature. Do you doubt a case where two persons of the same sex, one being asexual, wish to marry for the economic benefits of the marriage, but are denied that option because they are a same-sex couple? If so, then are you rejecting the notion that Proposition 8 applied only to homosexuals?

You may enquire as to why this trivial point matters, but I just want person who are homosexual or who are sympathetic to homosexual rights to understand that it doesn't ONLY affect you.
11.14.2008 8:08am
Eli Rabett (www):
Businesses are boycotted, people are shunned.
11.14.2008 8:20am
pluribus:
Another side to the debate?:

With all due respect to the homosexuals or persons sympathetic to homosexual rights complaining about California Proposition 8, it does not ONLY impact you. What of an asexual person's rights?

OK, so an asexual person can't marry a person of the same sex either. Why would he/she want to? I guess it's also true that a heterosexual person can't marry a person of the same sex. Why would he/she want to? Why would anybody like this want to make the world think they are homosexuals, and thus subject to the opprobrium, the epithets, the snickers, the religious condemnation, the occasional hate crimes, the legal discrimination that homosexuals are now subject to? It just doesn't make sense. Are you looking at the substance of this debate, or merely trying to trivialize it? If there is an asexual person who wants to marry a person of the same sex, I've never heard of him/her, but would agree that his/her choice is denied by the current law. There are many, many millions of gays in this country and around the world whose choice is denied by the current law.
11.14.2008 9:06am
Pragmatist:

At bottom, the law says: Heterosexual marriage is permitted. Homosexual marriage is not. That is a clear disctrimination in favor of heterosexuals and against homosexuals. Period.

Wrong. A law only discriminates if it treats one group differently than another. By your logic laws against theft discriminate against thieves and laws against speeding discriminate against vehicle owners.
11.14.2008 9:29am
Brian K (mail):
great job missing my argument yet again.

the definition of a "traditional" marriage has changed significantly since marriage as been invented. picking the definition of marriage that has really only recently been developed and calling it traditional seems to based on little other than animosity towards gays. few if any anti-SSM are proposing to return to a marriage where one can only marry someone of the same whatever. why aren't people advocating returning to the "traditional" marriage where the woman becomes the mans property? or how about the "traditional" form of marriage where the man is always older and taller than the woman? or the "traditional" marriage where it is arranged? or the "traditional" marriage where it is used primarily to increase social status or as a form of division of labor? and on and on and on.

if you actually understand biology (as you clearly don't), then your position is laughable. typical of the anti-scientific emotional appeal
you better hope then that you never need my services as a physician. but since i'm not making the argument you think i'm making, the jokes on you...and it is a funny one

it saddens me to be on the same "side" as somebody who is so willfully ignorant, but it wouldn't be the first time.
it saddens me to be on the same "side" as somebody with the logical abilities of a 3yr old, but it wouldn't be the first time.

great job fighting a strawman though! you showed your figment of your imagination who is boss! now why don't you sit down, crack open a cold beer and work at graduating elementary school.
11.14.2008 9:42am
Sarcastro (www):
Pragmatist is right. That's why I propose a new "topless Fridays" law. All groups are treated equally, so it's not sexist at all!
11.14.2008 9:45am
Another side of the debate?:
pluribus wrote: "OK, so an asexual person can't marry a person of the same sex either. Why would he/she want to? I guess it's also true that a heterosexual person can't marry a person of the same sex. Why would he/she want to? Why would anybody like this want to make the world think they are homosexuals, and thus subject to the opprobrium, the epithets, the snickers, the religious condemnation, the occasional hate crimes, the legal discrimination that homosexuals are now subject to? It just doesn't make sense."

I thought that I was clear when I wrote, "wish to marry for the economic benefits of the marriage". And, I happen to think that it, at least, may make sense (I personally think that it DOES make sense).

pluribus also wrote: "Are you looking at the substance of this debate, or merely trying to trivialize it? "

I am sorry if my (writing?) demeanor does not appear appropriate to you; that was NOT my intention. On the other hand, I am hurt that you are (at least, appearing to be) condescending to my post.

pluribus also wrote: "If there is an asexual person who wants to marry a person of the same sex, I've never heard of him/her, but would agree that his/her choice is denied by the current law. There are many, many millions of gays in this country and around the world whose choice is denied by the current law."

I am glad that you accept, I believe, the notion that Proposition 8 doesn't only affect homosexuals.

Aside, does the number of persons "denied by current law" really matter (in other words, isn't that statement a red herring)? I am of the understanding that if ONE person is denied a "fundamental" right, then "the current law" has problems.
11.14.2008 9:49am
cmr:
Because anti-gay marriage folks in California forced it on the ballot. Otherwise, it'd be a settled issue.


Had the pro-gay marriage folks (up to and including the California Supreme Court) left Prop 22 alone, this wouldn't have been an issue. I was willing to accept either outcome, but now that Prop 8 passed, we're being subject to their hurt feelings in the media. It seems like HuffPo runs a story about this daily.
11.14.2008 9:58am
Pragmatist:

Pragmatist is right. That's why I propose a new "topless Fridays" law. All groups are treated equally, so it's not sexist at all!

Creating a law that kills off Alaskans just because you don't like their governor is rather cold hearted, but at least it's not discriminatory.
11.14.2008 10:03am
alogos (mail):
Something I'm struggling with is: how does this episode impact the arts community going forward? Say there is a wealthy contributor to CMT. This contributor has generally taken the position that although he does not agree with every political/cultural stance taken by various productions, overall the CMT is an important enterprise that deserves support. In essence, he sees CMT as predominately an arts/entertainment enterprise not simply an advocacy organ. Marc Shaiman's position and Eckern's resignation make that belief less tenable. Given the constant struggle for donations by the arts community how does it help to potentially alienate donors, not to mention alienate potential donors? Does not Shaiman's stance make it seem that support of musical theater is support of his political goals?
11.14.2008 10:06am
pluribus:
Another side of the debate?:

I am hurt that you are (at least, appearing to be) condescending to my post.

I'm sorry, but people here are frank, and thin skins are a disadvantage. I thought your point was trivial, and still do.

Aside, does the number of persons "denied by current law" really matter (in other words, isn't that statement a red herring)? I am of the understanding that if ONE person is denied a "fundamental" right, then "the current law" has problems.

Yes, denial of the right of one person is wrong. Denial of the rights of millions of people is many times wronger.

If I pick up the paper and find that one person has been killed, I am sorry. If I find that 30 have been killed, I am thirty times as sorry. If I find that 3,000 have died in the World Trade Center, I am agahst. If I find that 4,000 have been killed in Iraq, I am sorry, aghast, and irate. It's just a matter of putting things in perspective.

Do you ever wonder why American asexuals (both of them) aren't complaining about the current law? Demonstrating in the streets? Why courts haven't made decisions that their fundamental rights are being denied. I wonder why not?
11.14.2008 10:06am
Spencer:
Scott Eckern, it should be noted, is a Mormon.

That's a double whammy for him. Not only is he a supporter of Prop 8, but a Mormon supporter of Prop 8.
11.14.2008 10:37am
eddiehaskel (mail):
Counterpoint?

I think this is comparing apples and oranges, professor, and your simply being provocative (perhaps like the Dixie Chickens, but certainly not like someone giving financial support to an actual ballot initiative that effects the rights of real people). The Dixie Chicks simply made a public statement. I do not know how their opinion could affect anyone in a more than de minimis fashion.

Nevertheless, boycotts are an effective political tool, and might even have a place as a means of "voicing one's opinion". Mass public burnings of a CD makes only one kind of statement and it has nothing to do with politics.

For a conservative leaning libertarian law site, I am surprised how much moral relativism is practiced here.
11.14.2008 10:57am
Two-Fisted Law Student (mail):
When do I get to the part of law school that prevents me from interacting with people with whom I disagree without dripping condescension and intimating that they're unalloyed bigots or sacrilegious perverts?

Is there like a section on the bar exam about that?
11.14.2008 11:48am
pluribus:
Another side of the debate?:

I thought that I was clear when I wrote, "wish to marry for the economic benefits of the marriage". And, I happen to think that it, at least, may make sense (I personally think that it DOES make sense).

Don't get your feelings hurt again, Another, but I don't follow your logic. If a person wants to marry for the "economic benefits," why must the marriage be to a member of the same sex? You can get the same benefits by marrying a person of the opposite sex. If sex isn't an issue, if romantic love doesn't enter into the choice, what difference does it make? Or is it just a whim? I recognize that there are lots of marriages for economic benefits. But, except for jurisdictions where gay marriage is now permitted, all marriages for economic benefits are now between people of the opposite sex. Money is non-sexual (or you might prefer to say asexual).
11.14.2008 11:48am
Elliot123 (mail):
"Surely you see the difference between discriminating against someone because they engage in conduct that harms people and discriminating against people because of who they are."

That's probably not a very good policy to advocate. Suppose I think homosexual conduct harms traditional M/F marriage? I sure don't need to ask anyone for permission to hold that belief. Nor do I have to defend or publicize it. In fact, many advocates of gay marriage tell me I am free to hate gays as much as I choose. So, I go through life discriminating against gays because I think they harm people.

More energetic folks who agree with me might think it best to publish the names of these harmful people so we can all discriminate against them.

As long as the justification for discrimination is a personal belief, that invites discrimination. Decide who we think is harmful, and discriminate.
11.14.2008 12:01pm
Another side of the debate?:
In my first post, I wrote: "I understand that one objection may be that 'an asexual person doesn't have to marry a homosexual but may marry on of the other sex,' but why would that matter? If one has a so-called right to marry (for I cannot recall if the right has been deemed fundamental), then ought one be able to marry whomever that person desires?"

And, yet pluribus wrote: "If a person wants to marry for the 'economic benefits,' why must the marriage be to a member of the same sex? You can get the same benefits by marrying a person of the opposite sex. If sex isn't an issue, if romantic love doesn't enter into the choice, what difference does it make? Or is it just a whim?

I have never asserted that the marriage MUST be same-sex. But, if an asexual person happens to have a close friend who is of the same sex and wishes to marry that person (again, there are benefits for marriage), then why should they marry someone else (even if someone else is of the opposite sex) if that person doesn't want to? Why are you limiting an asexual person's options to marriage? And, I honestly fail to understand what romantic love means to you (is it sex?). "Logically," isn't marriage a contract? If so, does a contract NEED to have emotions tied to it.

Aside, I really am at a lost why you think that Prop. 8 only affects homosexuals.

Another aside, have you actually meet an asexual person (as opposed to a chaste person)?
11.14.2008 12:14pm
ba2 (mail):
Randy R.:
As I recall, the LDS church made public a statement that they will take notice of anyone who supports No on Prop. 8 financially and will be held accountable.

I say we boycott Randy R. comments until he stops spreading false rumors.
11.14.2008 12:28pm
Jimmy S.:
As I recall, the LDS church made public a statement that they will take notice of anyone who supports No on Prop. 8 financially and will be held accountable.


What happened was that the Yes On 8 campaign sent a letter to businesses that had donated in excess of $10,000 to No On 8, and threatened to make their names public if they did not donate an equal sum to Yes On 8. One of the four signatories to that letter happened to be a Mormon.
11.14.2008 12:35pm
Smallholder (mail) (www):

"Laws against interracial marriage were CONTRARY to traditional marriage. interracial marriage was practiced in countless societies for centuries."



This seems to be a new meme propagated by the anti-gay marriage forces and seems clearly designed to deny the analogy between gay marriage and the Supreme Court's decision in Loving v. Virginia.

However, I'm skeptical about the factual basis of that historical claim, which is clearly true or false and not a matter of interpretation. If there was such a history, one wonders why Loving was hailed as the end of civilization by so many racists.

Additionally, I would think transportation issues would have made it difficult for this to be a centuries-old practice - until the Twentieth Century, the vast majority of people lived and died in the same small area. A 17th century Russian peasant probably had few opportunities to make a love match with a Subsaharan African. I doubt that there were very many Aborigine-Japanese couples in the 15th century.

The only historical example I can think that even comes close to the "widespread historical interracial marriage" model is the way that Spanish Conquistadores took "wives" from the Native American population. But that example doesn't work because the marriages and the progeny of those marriages were seen as inferior to "regular" marriage - and the distinctions between the Mestizo offspring and pure Spaniards are even echoed today in Latin American society."

There was frequent cohabitation between French trappers and Native Americans but those relationships were not sanctioned by the French legal code and were sometimes based on ownership - I believe the Charbanneau/Sacajawea relationship was along those lines.

This isn't snark and I'm asking genuinely: If you are against gay marriage and believe that meme, please name a few societies were interracial marriage was practiced and legally sanctioned. Note that I'm not asking for "countless" examples - just a few so I can think about the validity of your claim.
11.14.2008 12:43pm
Smallholder (mail) (www):
To all the supporters of gay marriage:

Please do not lump all Christians in with the anti-gay marriage forces.

Let me make a confession.

Hi, my name is Smallholder.

I'm a Christian.

I support gay marriage.


From a social standpoint, I'm horrified by folks who claim that the majority has the ability to deny rights to a minority. (But watch what happens when a majority does vote to allow gays to get married. The trend lines show that this will happen. Then the "majorities trump tyrannical black-robed judges" argument will be cast aside and other arguments will be made.

From a logical standpoint, I'm horrified when people claim that there is a distinction between anti-miscegenation laws and anti-gay marriage laws. I'm horrified when people make the silly slippery-slope argument that gay marriage = incest = polygamy = pedophilia = bestiality. Those illogical beliefs are so dumb they'd be laughable if they weren't so offensive.

From a historical viewpoint, I'm horrified that people make claims that are simply not true - interracial marriage was practiced in the past? Divorce rates in European countries went through the roof AFTER gay marriage became legal?

From a Christian standpoint, I'm horrified that my religion, which at it's heart is about loving God and our neighbors, is being portrayed as a hateful, vindictive, oppressive movement. The Sermon on the Mount enjoins us to proselytize our neighbors. When self-identified Christians go on television and talk radio lying and spewing hate, it becomes more difficult to convince our neighbors that Christianity is good.

Now, don't get me wrong. I don't think the anti-gay demagogues are going to destroy Christianity. God is mighty.

Perhaps some of my co-religionists don't have a similar belief about the omnipotence of God - they seem to think that gay marriage and/or evolution will weaken God in some way. Dude, it is you or God who feels threatened?
11.14.2008 1:03pm
Smallholder (mail) (www):
To address the original point of this post:

We live in a boisterous sea of liberty. Contra Palin, your First Amendment rights to speak do are not violated when other criticize that speech.

When the Dixie Chicks criticized Bush, their speech was protected from government oppression.

When private citizens stopped buying their albums, those individual consumers were not violating the Dixie Chicks' First Amendment rights in any shape or fashion - particularly because the First Amendment limits the government, not citizens.

When the Mormon Church spoke out against gay marriage and worked/paid to pass Proposition 8, their speech and action was protected by the First Amendment.

By the same token, it is entirely fair for gay activists to criticize/protest the Mormon Church.

Note that I did not say it was okay to vandalize Mormon Churches. Those whose zeal leads them to commit property damage ought to be prosecuted. Those activists who cause property damage are actually hurting the movement - all they do is give the Mormon Church the chance to play the victim, shift discussion away from their support of discrimination, and to lump all gay marriage supporters into the category of "unruly mob."
11.14.2008 1:11pm
pluribus:
Another side of the debate?:

Why are you limiting an asexual person's options to marriage?

I beg your pardon, I am not limiting anybody's options. It is the opponents of gay marriage who are limiting the options.

And, I honestly fail to understand what romantic love means to you (is it sex?). "Logically," isn't marriage a contract? If so, does a contract NEED to have emotions tied to it.

What it means to me personally is irrelevant. What it means to people who fall in love and want to spend the rest of their lives in a permanent relationship with the person they love does matter. A marriage contract is a little different than a contract for the delivery of soybeans.

Aside, I really am at a lost why you think that Prop. 8 only affects homosexuals.

Because homosexuals are by definition the only people who fall in love with people of the same sex and want to celebrate their love, not just with physical intimacy (or "sex," as you call it), but also with marriage. I am not talking about somebody marrying for money (the "economics of marriage," as you put it), but somebody who falls in love with a member of the same sex and wants to spend the rest of his/her life in a physically intimate and loving relationship with that person.

Another aside, have you actually meet an asexual person (as opposed to a chaste person)?

What does this have to do with anything? I have met people who have never married and who seem to have no interest in sex. I do not know what is in their hearts. (I am excepting here members of religious orders who take vows of chastity for religious reasons.) To be honest, I suspect any such person is a closeted homosexual and that if society were more open and accepting they would express their love, probably for a member of the same sex. But I respect their right to make their own decisions, and do not inquire into it. There is no legal or social inhibition against heterosexual relationships or marriage. If such a person wanted to have a heterosexual relationship, he/she not only could, but would be encouraged to do so, by religion, by social pressures, and not the least by the law. But there are powerful inhibitions against homosexual relationships and marriage, though these are now breaking down (no thanks to Proposition 8).
11.14.2008 1:23pm
David Schwartz (mail):
That's probably not a very good policy to advocate. Suppose I think homosexual conduct harms traditional M/F marriage? I sure don't need to ask anyone for permission to hold that belief. Nor do I have to defend or publicize it. In fact, many advocates of gay marriage tell me I am free to hate gays as much as I choose. So, I go through life discriminating against gays because I think they harm people.
If I said racial discrimination in government hiring was wrong, could you respond as follows: Suppose I think all black people are dishonest thieves, ...
11.14.2008 1:43pm
FantasiaWHT:
<blockquote>
1. I'm gay
2. The only person I would want to marry is another man, a gay man.
3. If I were straight, I would want to marry a woman. Which I can because all striaght can marry whom they choose to marry.
4. As I am gay, I cannot marry the one person that I choose to marry. therefore, I am not able to marry because I'm gay. Again, if I were straight, I could get married (see No. 3)
</blockquote>

1. I am a pedophile (pedosexual?) My status is as innate as being gay - except they still try to "cure" me like they used to try to cure gays
2. The only person I want to marry is a child bride.
3. If I weren't a pedophile, I would want to marry an adult. Which I could, because all adults can marry other adults
4. As I am a pedophile, I cannot marry the one person that I choose to marry. Therefore, I am not able to marry because I'm a pedophile.

Oh darn, we're discriminating against the pedophiles, too.
11.14.2008 1:58pm
Kent G. Budge (www):

As I recall, the LDS church made public a statement that they will take notice of anyone who supports No on Prop. 8 financially and will be held accountable.


This turns out not to be the case. What the Church actually said was (link):


Before it accepted the invitation to join broad-based coalitions for the amendments, the Church knew that some of its members would choose not to support its position. Voting choices by Latter-day Saints, like all other people, are influenced by their own unique experiences and circumstances. As we move forward from the election, Church members need to be understanding and accepting of each other and work together for a better society.


This doesn't exactly sound like a call to excommunicate LDS who supported No on Proposition 8.
11.14.2008 1:58pm
Elliot123 (mail):
"If I said racial discrimination in government hiring was wrong, could you respond as follows: Suppose I think all black people are dishonest thieves, ...

I could respond that way, but then I would answer my own question by observing that the standard for hiring is not mine; it is given to me as an agent of my employer. So, regardless of my personal belief, I am accepting my employer's standard.

However, when I am responsble for setting the standard myself, as I am if I freely choose to consider homosexuals to be harmful, then it's up to me to discriminate as I choose based on my own judgement of harm. I set the standard, nobody else.

Some folks thing those who vote one way on P8 are harmful, so we set off on a path of righteous discrimination.
11.14.2008 2:05pm
pluribus:
FantasiaWHT:

Oh darn, we're discriminating against the pedophiles, too.

Your effort to draw an analogy between gays and pedophiles is nonsense. Since you are into invalid analogies, why don't you draw an analogy to rapists? The answer, of course, is that minors can't consent to sexual relations (with members of the same or different sexes, I might add)and victims of rape are, by definition, non-consenting. I hope you realize that the vast numbers of pedophiles (and rapists, too) are thoroughly heterosexual, yet that is no obstacle to heterosexual marriage.
11.14.2008 2:13pm
shawn-non-anonymous:
As a non-lawyer, please forgive me if I've misunderstood something.

Do I recall correctly that the upper management of a corporation can be held personally liable for certain illegal acts taken by the corporation?

If I am at least in the right ballpark here, would "Art Director" of a theater not qualify?

At any rate, as an independent contractor, which most artists are, I would not sign a contract with someone who was publicly hostile to what I perceive to be my civil rights. You may call that a "boycott" whereas I call it "self preservation."

Back in the 80s I boycotted Carl's Jr restaurants because the profits from my patronage would be used to fund anti-gay and anti-abortion activities. It was not my goal to have Carl's Jr declare bankruptcy; I just didn't want fund my own undoing.

I fully support any art director's right to political speech. I also support the rights of the artists to their own speech. I believe this is how our system is supposed to work.
11.14.2008 2:18pm
Toby:

Money is non-sexual (or you might prefer to say asexual).

Well there is an assertion that is contrary to eons of history and legend...

But really, even though Felix and Oscar keep on dating women, why shouldn't they get married. It would simplify their record keeping, they could provide each other health benefits...

I come from long lived stock. It is entirely possible that my brother and I may outlive our prospective wives by a decade or more. Why shouldne we marry in opur '80s? Why shouldnt my state pension then apply to my younger brother, as well?
11.14.2008 2:28pm
The General:

1. I'm gay
2. The only person I would want to marry is another man, a gay man.
3. If I were straight, I would want to marry a woman. Which I can because all striaght can marry whom they choose to marry.
4. As I am gay, I cannot marry the one person that I choose to marry. therefore, I am not able to marry because I'm gay. Again, if I were straight, I could get married (see No. 3)


I like how people equate rights to "whatever I want." There simply is no right to marry the person of one's choice, regardless of gender. If we had a right to "marry the only person I want to marry" then I'd be married to Jessica Alba. But there is no such right.

Marriage is a privilege and not a right. The State says we like these types of relationships for various reasons and want to elevate them over other relationships. It is similar to the way the state privileges attorney-client relationships and doctor-patient relationships. It isn't "discriminating" against other types of relationships by privileging those. If you want to have a privileged relationship, then you have to fit within the bounds of what the relationship is. Marriage is a relationship between a man and a woman, so if you want to be married, that's how you have to do it. If you don't want to be married to a person of the opposite sex because it doesn't suit your lifestyle choice, then you don't have to, but your relationship won't get the privileges that belong to married people.
11.14.2008 2:41pm
pluribus:
Toby:

I come from long lived stock. It is entirely possible that my brother and I may outlive our prospective wives by a decade or more. Why shouldne we marry in opur '80s? Why shouldnt my state pension then apply to my younger brother, as well?

Good question. Why don't you ask the proponents of Proposition 8? Of course, you'd also have to overcome the impediment of consanguinity. Since we're now in fantasy land, however, let's get really fantastic and say you can do it. You refer to your "prospective" wives. Do you mean "respective?" If the latter, your first marriage preferences must have been heterosexual, not asexual, right?
11.14.2008 2:46pm
pluribus:
The General:

Marriage is a privilege and not a right.

Sure is. Have you ever noticed how the folks who have the privileges get real upset when others want some of the same privileges as they have? Nope. It's my privilege, not yours, and I aim to keep it that way. That's the way society should be organized. Privileges for the privileged, not the unprivileged. I mean, this is America, isn't it?
11.14.2008 2:51pm
Christian K:
@whit

I have a quick question for you. I have seen you shoot down many arguments for Gay Marriage, yet you support Gay Marriage. What is the argument you would use to support Gay Marriage?

Also....

As someone who lives in CA, is a subscribing member of CMT, has season tickets, has met Mr. Eckern, and is gay, I am very glad for the way this worked it self out. I was one of the many supporters of CMT that at once outraged and at the same time filled with pity for Mr. Eckern, who should have known what would happen. Maybe he was betting on Prop 8. failing. Maybe he didn't realize that his contribution would be discovered. Regardless it was a massively stupid move.
11.14.2008 2:53pm
Ex-Fed (mail) (www):
Marriage is a privilege and not a right.




Perhaps one could argue that marriage should be a privilege and not a right, if the constitution were interpreted as one likes. But it's not a correct statement under current law, either as a matter of federal constitutional law or cases interpreting the California constitution.

Loving v. Virginia (SCOTUS, 1967):

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

11.14.2008 3:16pm
Pragmatist:

It's my privilege, not yours, and I aim to keep it that way. That's the way society should be organized. Privileges for the privileged, not the unprivileged. I mean, this is America, isn't it?

How can you be so bigoted? We should all have the ability to marry whomever and whatever we want! Who is the government to place silly restrictions on drivers licenses such as being able to see? All privileges should be afforded to everyone blindly!
11.14.2008 3:18pm
Elliot123 (mail):
"Sure is. Have you ever noticed how the folks who have the privileges get real upset when others want some of the same privileges as they have? Nope. It's my privilege, not yours, and I aim to keep it that way. That's the way society should be organized. Privileges for the privileged, not the unprivileged. I mean, this is America, isn't it?"

This reminds me of the response SSM proponents give to polygamy advocates. SSM proponents want to extend civil marriage to same sex couples. Then they want to slam the door on anyone else who wants to further extend the privilege. Like you said, "Privileges for the privileged."
11.14.2008 3:25pm
David Schwartz (mail):
Elliot123: It's clear you have decided not to reply to my argument but to style your non-sequiters as a response. You are certainly welcome to hold private discriminatory beliefs and to act on those beliefs. You need not justify them to anyone.

However, what you may not do is attempt to codify your discriminatory beliefs into law. It is right at that point that you trample on the rights of others.

If you want believe that homosexual marriage harms traditional marriage, you can. If you want to believe all black people are untrustworthy thieves, knock yourself out.

But as soon as you *vote* on that basis, and try to take away those people's equal rights on the basis of your discriminatory beliefs, that's precisely when it stops being okay. You have the right to discriminate with your own assets. The majority, however, has no right to use the mechanism of Democracy to enact its discriminatory beliefs into law.
11.14.2008 3:37pm
Toby:
Pluribus - correct on respective/prospective...

But my observation is really a question about what/who I like manipulating my genitals has to do with the conversation. I know more than a few heterosexual couples where one partner has a deeper / more lasting / more satisfactory relationhsip (non sexual) with the family dog than with their partner. I also know many more for whom it appears that their spouse is the only person they can never be happy with. Many many men claim that they have been surprised to be in an asexual relatiohsip for some years...once the woman has had as many children as she wishes. Many women have observed that their husband seems interested in any woman other than their them. None of these observations horrify or surprise anyone. Nor are they in fantasy land.

In each case, they may or may not consider themselves happily married - so marriage does not seem to be defined by "who makes one happy" or "who one is attracted to".

I added these is as part of the "asexual" meme on this thread, one I had not previously rolled around. I am a system guy, so I ttend to obsess on minutiae rather than big picture and this minutiae interested me.
11.14.2008 3:42pm
pluribus:
Elliot123:

SSM proponents want to extend civil marriage to same sex couples. Then they want to slam the door on anyone else who wants to further extend the privilege. Like you said, "Privileges for the privileged.".

I hadn't noticed that SSM advocates were leading the ban on polygamy. Is it your position that they were doing that back in the 19th century, when the Republican Party platform identified slavery and polygamy as "twin relics of barbarism." So it was the gays who got the Mormons to stop taking multiple wives way back in 1890? Interesting. And it was just revenge when the Mormons called out the troops for yes on Prop 8? Even more interesting. Rubbish, of course--but interesting. I hope you do know that polygamy is a thoroughly heterosexual practice--not gay at all--and that the arguments against are based primarily on uits exploitative nature.
11.14.2008 3:52pm
pluribus:
Pragmatist:

How can you be so bigoted? We should all have the ability to marry whomever and whatever we want! Who is the government to place silly restrictions on drivers licenses such as being able to see? All privileges should be afforded to everyone blindly!

Are you proposing that we deny marriage licenses to those who are blind? Would you deny them to heterosexuals who are blind as well as homosexuals? You nut-case jobs are so inventive--always thinking up new and innovative bans to make life miserable for other people.
11.14.2008 3:56pm
gasman (mail):

I agree. If I operate a restaurand, I should be free to disciminate against blacks, or the disabled, and not serve them or hire them. It's the American way!

Those uppity blacks can do what they've always done -- patronize their own restaurants. Why should I be forced to serve them?


Randy R's quote above.
I fully agree. I also expect that the economic life of such a restaurant would be quite limited. Government intervention is no longer needed in this situation to protect anyone's interests; economics of the free market would quickly correct the situation back to nominal.
11.14.2008 4:15pm
Pragmatist:

Are you proposing that we deny marriage licenses to those who are blind? Would you deny them to heterosexuals who are blind as well as homosexuals? You nut-case jobs are so inventive--always thinking up new and innovative bans to make life miserable for other people.

No, neither of those proposals were written about or advocated. I said that if privileges can't have restrictions then blind people can get a drivers licenses. Thanks for calling me a "nut-case job[]", though, it shows that you've run out of any intellectual arguments and have resorted to name calling.
11.14.2008 4:29pm
Another side of the debate?:
pluribus: "I beg your pardon, I am not limiting anybody's options. It is the opponents of gay marriage who are limiting the options."

My pardon is granted. Earlier you wrote, "If a person wants to marry for the 'economic benefits,' why must the marriage be to a member of the same sex? You can get the same benefits by marrying a person of the opposite sex."

My retort is why does it matter if I choose to marry one of the same sex? If you are questioning me, then I am of the opinion that you are implying that I ought not to take that option (or, do you disagree with this statement?) thus "limiting [my] options." A REAL example: My best friend is a male (I am also a male), and we have a great non-sexual relationship. But, he has a child from a previous relationship; we want to get better "economic incentives" for his child and so we wish to marry on that accord. We still would live like bachelors (or, as you wrote "closeted homosexual[s]") with different houses, etc., but now we can both help out a child with the "economic benefits" of marriage.

pluribus also wrote: "What [a marriage contract] means to me personally is irrelevant. What it means to people who fall in love and want to spend the rest of their lives in a permanent relationship with the person they love does matter."

So it appears that a marriage contract does need emotions (love); or I am missing the point of this quote? It seems odd to assert that because the next sentence you wrote was:
"A marriage contract is a little different than a contract for the delivery of soybeans." So does that mean then that emotions don't matter? In other words, your response seems contradictory.

pluribus also wrote: "Because homosexuals are by definition the only people who fall in love with people of the same sex and want to celebrate their love, not just with physical intimacy (or "sex," as you call it), but also with marriage. I am not talking about somebody marrying for money (the "economics of marriage," as you put it), but somebody who falls in love with a member of the same sex and wants to spend the rest of his/her life in a physically intimate and loving relationship with that person."

I still believe that you hold a narrow view of love. There are other forms of love (think philia, storge, and agape) that may be expressed in marriage and even in other relationships in life (family, friends, etc.). The love that I would have for my best friend would be philia. So, with all due respect, "homosexuals are [not] by definition the only people who fall in love with people of the same sex [...]"

pluribus also wrote: "What does this have to do with anything? I have met people who have never married and who seem to have no interest in sex. I do not know what is in their hearts. (I am excepting here members of religious orders who take vows of chastity for religious reasons.) To be honest, I suspect any such person is a closeted homosexual and that if society were more open and accepting they would express their love, probably for a member of the same sex. But I respect their right to make their own decisions, and do not inquire into it."

So, to clarify, because you have not enquired the people you know "who have never married and who seem to have no interest in sex," you have never known an asexual person? I am deeply troubled (I guess I have, as you may write, "thin skins"), though I respect your candor, that you write "any such person is a closeted homosexual." Again, I believe that you take too narrow a view on relationships and types of love.

An example: I have been in a relationship with a lady to offer her emotional support. She wanted to assert that she was still "beautiful" thus she asked to have sexual intercourse with me. I acquiesced, for her sake, even though I abhor that relationship (I even loathe touching people); would you still assert that I am "a closeted homosexual?" I have never thought of being in that same relationship with a male, N. B.

Aside, you may not believe it, BUT I am for same-sex marriage. However, to blithely assert that same-sex marriage equal homosexual marriage, to me, misses the breath and beauty of other (maybe alleged to you) sexual ordinations and practices (or lack thereof).

Since you do not appear to take serious merit in my posts, I will stop. My posts have been too much of a tangent to the author's post.
11.14.2008 4:45pm
Elliot123 (mail):
"However, what you may not do is attempt to codify your discriminatory beliefs into law. It is right at that point that you trample on the rights of others."

Of course I may. We can see proof that I can in the vote on Prop 8. It just happened. Millions of people just codified their discriminatory beliefs into law. They did it.
11.14.2008 5:08pm
Elliot123 (mail):
"I hadn't noticed that SSM advocates were leading the ban on polygamy. Is it your position that they were doing that back in the 19th century, when the Republican Party platform identified slavery and polygamy as "twin relics of barbarism." So it was the gays who got the Mormons to stop taking multiple wives way back in 1890? Interesting. And it was just revenge when the Mormons called out the troops for yes on Prop 8? Even more interesting. Rubbish, of course--but interesting. I hope you do know that polygamy is a thoroughly heterosexual practice--not gay at all--and that the arguments against are based primarily on uits exploitative nature."

I agree it is rubbish to say gays opposed the Mormons in 1890. I'd also agree it's rubbish to think Mormon action on Prop 8 is revenge. So those are certainly not my positions. Where did you get those ideas? Interesting.

Nor have I noticed the SSM advocates to be leaders in the fight against polymagy. I'm really not sure if we can say anyone is a leader in that regard. But, I have noticed SSM advocates saying they want SSM, but oppose polygamy. And I have noticed them saying civil marriage should not be extended to polygamists.

Privileges for the privileged. It's an equal opportunity game.
11.14.2008 5:18pm
Adam J:
Elliot123 - "Of course I may. We can see proof that I can in the vote on Prop 8. It just happened. Millions of people just codified their discriminatory beliefs into law. They did it."

Eh? I don't understand your point... just because it happened doesn't make it just.
11.14.2008 5:19pm
David Schwartz (mail):
Elliot123: That's an inventive argument. Because you were capable of doing something, it follow that you are permitted to do it. How well did that work on your parents?

"We told you that you may not stay out after 11."

"Well, I got home a 11:30, therefore I may stay out after 11."

Thank you for again proving my point that you have no interest in addressing the substance of my arguments.
11.14.2008 5:19pm
Adam J:
Elliot123 - Ah, what a nice game you play. "It's a slippery slope, allowing gay marriage will allow polygamy, incest, and bestiality! Oh what's that you say, you're opposed to polygamy, incest, and bestiality? Well then you believe in denying folks rights too, so its okay for me to!"
11.14.2008 5:25pm
Elliot123 (mail):
"Eh? I don't understand your point... just because it happened doesn't make it just."

I didn't say it was just. I pointed out to DS that I could do it. He said I couldn't.

"Elliot123: That's an inventive argument. Because you were capable of doing something, it follow that you are permitted to do it. How well did that work on your parents?"

I'll leave your curfew discussion to others, but I will note I am permitted to vote against Prop 8 if I choose. Millions just demonstrated they were permitted.
11.14.2008 5:26pm
Elliot123 (mail):
"Elliot123 - Ah, what a nice game you play. "It's a slippery slope, allowing gay marriage will allow polygamy, incest, and bestiality! Oh what's that you say, you're opposed to polygamy, incest, and bestiality? Well then you believe in denying folks rights too, so its okay for me to!"

Sorry. That's not what I said. I said SSM advocates oppose polygamy and oppose opening up civil marriage to polygamists.
11.14.2008 5:29pm
Adam J:
Elliot123- The reason they said that was in response to the slippery slope arguments postulated by those opposing same sex marriage. Yet one has little to do with the other- allowing marriage to become a multiparty arrangement is an entirely different can of worms.
11.14.2008 5:40pm
Pragmatist:

Ah, what a nice game you play. "It's a slippery slope, allowing gay marriage will allow polygamy, incest, and bestiality! Oh what's that you say, you're opposed to polygamy, incest, and bestiality? Well then you believe in denying folks rights too, so its okay for me to!"

Of the people that aren't allowed to marry, the largest categories are polygamy, incest, bestiality, pedophilia, and homosexuality. Bestiality and pedophilia are easily set aside because they involve one party who is not legally competent to enter into a marriage. The remaining three share many of the same arguments for and against, so if you have some bright line that makes gay marriage acceptable while incest and polygamy are not, please enlighten us.
11.14.2008 5:41pm
David Schwartz (mail):
Pragmatist: Rights are never acquired or defined by such bright lines. It's always an incremental fight. The question is which way do we want to push the line -- towards equality or away from it?
11.14.2008 5:47pm
Elliot123 (mail):
"Elliot123- The reason they said that was in response to the slippery slope arguments postulated by those opposing same sex marriage. Yet one has little to do with the other- allowing marriage to become a multiparty arrangement is an entirely different can of worms."

I'm sure they were responding to the slippery slope. And they responded by saying once they have the privilege, they oppose extending it to anybody else..
11.14.2008 5:52pm
Pragmatist:
David: Does that mean legalizing gay, polygamous, and incestuous marriages all push the line towards equality? If any of them don't, please explain how it differs from any that do.
11.14.2008 5:57pm
David Schwartz (mail):
Pragmatist: Yes, they all do. They are not all exactly equivalent in terms of what's weighing against them on the other side, but they all push the line towards equal treatment.
11.14.2008 6:02pm
Adam J:
Elliot123- "And they responded by saying once they have the privilege, they oppose extending it to anybody else.." What's your point? We can oppose liberty for one group of folks because they might oppose it for others? Perhaps we should roll back African American rights, because they're apparently overwhelming opposed to gay rights. Yeah, that's logical.
11.14.2008 6:02pm
wooga:
To those challenging my posts, I note that Pragmatist has already responded exactly as I would have.
11.14.2008 6:06pm
Adam J:
Pragmatist- You're missing the point entirely, freedom to marry should be the norm, not the exception. We craft exceptions for specific reasons, such as we believe polygamy is exploitive &incest can be dangerous to progeny. I don't know how much support there are for these reasons, but I'm open to arguments for allowing freedom for any sort. Anyways, the justifications for not allowing polygamy &incest are completely different then homosexuality, where the justifications is basically that we've never allowed it before &my religion says its bad.
11.14.2008 6:09pm
Pragmatist:
David: That is at least consistent. The original comment from Adam J implied that gay marriage could be legalized while keeping incest and polygamy illegal, which is inconsistent (although possible, and eventually probable, it's still inconsistent).
11.14.2008 6:13pm
Elliot123 (mail):
"What's your point? We can oppose liberty for one group of folks because they might oppose it for others? Perhaps we should roll back African American rights, because they're apparently overwhelming opposed to gay rights. Yeah, that's logical."

I was expanding on Pluribus' point that the privileged tend to deny privileges to others. He observed "how the folks who have the privileges get real upset when others want some of the same privileges as they have?"

Now, I haven't obseved SSM advocates getting real upset, but I have observed them supporting the denial of civil marriage privileges to polygamists.
11.14.2008 6:20pm
Adam J:
Pragmatist- "The original comment from Adam J implied that gay marriage could be legalized while keeping incest and polygamy illegal, which is inconsistent." Not at all Pragmatist, they're different freedoms, and there's different justifications against granting those freedoms
11.14.2008 6:21pm
FantasiaWHT:

The answer, of course, is that minors can't consent to sexual relations (with members of the same or different sexes, I might add)


Ok, consent matters. Now make an argument why "of the opposite sex" shouldn't matter. Or why "who isn't already married" shouldn't matter. Or why "who isn't closely related to you" shouldn't matter.

There is no rational argument that "of the opposite sex" shouldn't be a marriage requirement and yet any of these other restrictions should.

Incest creates genetic defects you say? Ok, so I guess then a homosexual man should be allowed to marry his brother or father then, right?

There we go. If you can convince me why it wouldn't be discriminatory to allow gay brothers to marry but not a brother and sister, I'll concede the argument.
11.14.2008 6:23pm
Adam J:
Elliot123 - You're posts are pointless- the fact that the "privileged" often denies rights to the "nonprivileged" is irrelevant to the discussion of why we should or should not allow same sex marriage.
11.14.2008 6:23pm
Elliot123 (mail):
"Elliot123 - You're posts are pointless- the fact that the "privileged" often denies rights to the "nonprivileged" is irrelevant to the discussion of why we should or should not allow same sex marriage."

Well, shame on Pluribus for introducing such a pointless argument for SSM.
11.14.2008 6:30pm
Pragmatist:

We craft exceptions for specific reasons, such as we believe polygamy is exploitive &incest can be dangerous to progeny

Since these are the only actual justifications in your post, I will address them. The exploitation in the vast majority of today's polygamy is due to the marriage of minors, which is illegal by itself. If you have any evidence that adult polygamous marriage is or would likely be any more exploitative than monogamous marriage please present it.

The possible danger of birth defects from incest is a poor reason for the denial of a right (especially if strict scrutiny applies). Other environmental factors can cause high rates of birth defects, yet people exposed to them are not banned from marrying or having children. People with genetic conditions such as sickle-cell anemia, Aicardi Syndrome, etc. put their children at higher risks of health problems and yet are allowed to marry and have children.

While I disagree with the view that there is a constitutional right to marry any consenting adult, I still don't see how anyone can espouse such a view for gays while denying it to those who prefer incest or polygamy
11.14.2008 6:35pm
Adam J:
FantasiaWHT- I'm curious- what's your point? That may indeed be a justification for allowing all those gay siblings to marry each other- all 2 of them out there. On the other hand there's millions of gay couples that would like to marry each other but are denied without any apparent justification other then some religions are opposed to it and that us straight folks think it's "icky".
11.14.2008 6:38pm
Pragmatist:

Pragmatist- "The original comment from Adam J implied that gay marriage could be legalized while keeping incest and polygamy illegal, which is inconsistent."
Not at all Pragmatist, they're different freedoms, and there's different justifications against granting those freedoms

That's what I've been asking for: How are those freedoms different and what legal justifications make gay marriage acceptable while incest and polygamy are not?
11.14.2008 6:40pm
Elliot123 (mail):
Perhaps incest and polygamy are icky?
11.14.2008 6:42pm
Pragmatist:

Perhaps incest and polygamy are icky?

Although I find the legal justification of "icky" could have potential, I fear many would attribute it to gay marriage as well.
11.14.2008 6:46pm
pluribus:
Another side of the debate?:

Aside, you may not believe it, BUT I am for same-sex marriage.

I wish you weren't. Your arguments are so convoluted; you are so willing to twist opposing arguments; and your command of logic is so defective, that I would rather you were an opponent. With friends like you who needs enemies? Please, just come out and say you are against it! (Did I hurt your feelings again?)
11.14.2008 6:50pm
Adam J:
Pragmatist- Maybe you are right that there's not significant enough negative reasons to justify allowing incest &polygamy. I believe the two acts to be wrong, although I admit I'm not to knowledgeable about the subjects. I plead ignorance, but I'm not willing to simply say polygamy &incest are okay without knowing a bit more about the issue. What are the dangers? If we are going to change the status quo, I'd like a little public debate about it- I'm not going to blindly vote for allowing incest or polygamy, two things I've been raised to believe are wrong, without hearing some decent reasons otherwise. Conversely, I've heard plenty on the debate about same-sex marriage, I know a few gay people personally &don't see what's wrong with their choices. Nor do I see how anyone is harmed by giving them the same rights I have.
11.14.2008 6:55pm
Pragmatist:
Adam J: That's an honest view and I respect it. I assume that if you researched and discussed it and found no additional justification for incest and polygamy remaining illegal that you would ignore your general sense of wrongness and vote to allow them. That's consistent and we can simply disagree about whether we should allow any of them.
11.14.2008 7:08pm
Adam J:
Pragmatist- So I take it you vote against same-sex marriage simply on your "general sense of wrongness"?
11.14.2008 7:18pm
Randy R. (mail):
Fantasia: "Oh darn, we're discriminating against the pedophiles, too."

I was wondering how long it would take for the pedophiles = gays argumment to surface. Thanks Fanstasia! You held off until today.

I would has responded to about a dozen of the many stupid arguments that are made to deny gays the right to marry. And stupid they are, because they are just made up to mask the one thing that only a few are willing to admit, which is that they are threatened by gays.

Oh, they'll deny it. But that's the bottom line. You would only deny rights to people who you are afraid of. And what are they afraid of? That they will turn gay themselves? That their children will all turn out gay?

Nope. It's much simpler than that. Studies in Britain confirm what every gay man learns at an early age. There are some kids in school who endlessly torment gays, but most kids just ignore the gay kids. So what makes the bullies pick on the gay ones? It's a feeling of insecurity regarding their OWN sexuality. Turns out that the kids that are most secure in their sexuality -- as a man -- really don't care about gay kids. They are too busy getting laid. It's the other guys who aren't getting laid, or are not feeling as mascualine as the jocks they so adore, who are the ones picking on the gays.

So that's what we have here. Listen to their arguments against SSM: That it will destroy marraige! That gays don't have a right to marriage! That gays are really pedophiles, sick and perverted! There are all just the cries of weak men who need to feel better by keeping certain priviledges for themselves just to bolster a feeling of superior that they would otherwise lack.

And before all you anti-gay people start screaming at me that I don't know you and I don't know what I'm talking about, let me just remind you that you are the ones who refuse to believe that being gay is not a choice. If you won't believe what I have to say about myself, and make up crap to justify your beliefs, why would you think I can't do the same?

At least my theory has some basis in personal experience and a few studies.

Got it? If you think you know me better than I do, then I can know you better than you do.
11.14.2008 9:44pm
Elliot123 (mail):
"Got it? If you think you know me better than I do, then I can know you better than you do."

I predict that approach would give the advantage to the anti-SSM forces when the arena is the ballot box.
11.14.2008 10:18pm
David Warner:
Randy R.,

"If the guy were working for a church that was made up almost entirely of anti-abortion believers and he makes a contribution to a pro-choice organization, I'm quite sure the church would make quick work of him, don't you think?"

Not in my experience. Note that that experience includes being the only straight man in a wonderful all-male cast of this show.
11.14.2008 10:32pm
Pragmatist:

So I take it you vote against same-sex marriage simply on your "general sense of wrongness"?

Yes, I believe homosexuality is morally wrong. I don't think the government should outlaw it, nor should it encourage it, much like lying or alcoholism. Homosexuals may or may not have a genetic predisposition or even have no choice at all, much like some pathological liers or alcoholics.

Additionally, there is no constitutional right to marry any other consenting adult. While I do think Loving was wrongly decided, it still only holds that marriage cannot be restricted by race and has no binding precedent on other factors such as gender.
11.15.2008 12:32am
LM (mail):
David Warner,

I saw the RSC perform in Los Angeles, I'm guessing, around 15 years ago. Was one of them you?
11.15.2008 12:38am
Ryan Waxx (mail):
One flaw in professor Volokh's argument is that he doesn't give us the criteria to decide what positions are so repugnant that private sanctions are appropriate and what positions are not.



That's a feature, not a bug. If you really want to be told what to believe, perhaps you might want to visit the Daily Kos.
11.15.2008 8:06am
David Warner:
LM,

I'm small time all the way. I thought using my own name here would be a dead giveaway.

Funny thing about that show: we were painfully unfunny in rehearsal until we figured out we had to play it dead straight. Then, it was so ridiculous the most challenging thing was keeping a straight face. Just spectacular comic writing. Cervantes would have approved.
11.15.2008 10:10am
whit:

And before all you anti-gay people start screaming at me that I don't know you and I don't know what I'm talking about, let me just remind you that you are the ones who refuse to believe that being gay is not a choice


look, i support gay marriage, but this is rubbish. i have plenty of friends who are against it, and it has nothing to do with whether being gay is a choice.

most of the people i know who are against gay marriage for religious reasons (and not all that oppose gay marriage do so for religious reasons. heck, some are even atheists), think that the choice issue is irrelevant.

that may be hard for you to grok. there is a belief among many in the proSSM crowd who believe that if orientation is not a choice, then ipso facto - gay marriage must be allowed.

i'm all for gay marriage, but that's a silly argument. it also discounts (as mentioned) the many people who think it's not a choice, but that gay marriage should still not be allowed
11.15.2008 6:42pm
whit:

. Nor do I see how anyone is harmed by giving them the same rights I have.


but how are you harmed (to reference your incest example) if two sisters want to have sex?

i know I'm not.

people claim "you can't legislate morality" but we DO.

and laws against incest and bestiality are two excellent examples.

a person performing fellatio on a dog does NOT harm the dog, or anybody else - but we outlaw it.

two sisters having sex. ditto.

why do we outlaw these? because they are icky and immoral.

i am not against gay marriage, but i'm not going to pretend that we don't have laws banning immoral sex acts. i've listed two examples above that we do ban because they are believed to be immoral.
11.15.2008 6:46pm
Elliot123 (mail):
Are there really laws against any set of two adult women having sex? Where? Are such laws common?
11.16.2008 12:33am
CJColucci:
Are there really laws against any set of two adult women having sex? Where? Are such laws common?

New York had such laws, in my adult lifetime. They were, however, badly written. NY, like many states, defined prohibited sexual acts (among unmarried persons, which would, of course, leave same-sex couples out of luck) by forbidding contact between specified body parts, e.g., penis and anus, or mouth and vulva. Certain types of body-part contact, e.g., mouth-mouth, and penis-vulva, were not outlawed, meant to be lawful,and, therefore, OK. Some appeared to common understanding to lack sexual meaning, and, therefore, were not outlawed for lack of necessity. (For reasons that will appear, I will not provide examples.) But either because of lack of sexual imagination on the part of the legislature, or because of a canny legislator with unusual tastes that he wanted to protect, some types of body-part contact with sexual meaning were left legal, e.g. analingus and vulva-vulva grinding. So adult women could have some types of sex, but not others. And only the less common, and, by definition, "kinkier" types.
11.16.2008 9:51am
Titus Pullo:
pluribus:

Consider a couple of other examples. If everyone was forbidden to speak Spanish, it wouldn't be discrimination, because the ban would apply to English speakers as well as Spanish speakers. If everyone was forbidden to have an abortion, it wouldn't be discrimination, because the ban would apply to men as well as women. If everyone was forbidden to wear a head shawl, it wouldn't be discrimination, because the ban would apply to Christians as well as Muslims. If everyone was forbidden to attend Mass, it wouldn't be discrimination, because the ban would apply to Protestants, Jews, Muslims, Buddhists, Hindus, and atheists, as well as Catholics. Do you see how illogical it is to say that forbidding every one to marry a person of the same sex isn't discrimination, because it applies to heterosexuals as well as homosexuals?


Aside from the abortion example (I think it should be illegal), the flaw here is that speaking Spanish, wearing a shawl and attending Mass are not considered to be morally repugnant &sexually deviant. I agree that the gay marriage ban is discrimination but for defensible reasons.
11.16.2008 2:30pm
David Schwartz (mail):
There we go. If you can convince me why it wouldn't be discriminatory to allow gay brothers to marry but not a brother and sister, I'll concede the argument.
That's right. Until we can guarantee precisely equal rights for everyone, there's no point in giving anyone any rights at all.
11.16.2008 2:37pm