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Does the Anti-Gay Marriage Backlash Prove that Judicial Review is Ineffective?

In recent years, leading scholars such as Michael Klarman and Gerald Rosenberg have argued that judicial review is rarely if ever effective in protecting rights that aren't supported by the political branches of government and majority public opinion. The political backlash against the Massachusetts Supreme Judicial Court's 2003 gay marriage decision has seemingly added fuel to these revisionists' fire.

As Jeffrey Rosen argues in a recent New Republic debate that the Goodridge decision led to a massive political backlash, with some 30 states enacting anti-gay marriage amendments to their constitutions as a result. The most recent setback was the passage of California Proposition 8, which reversed a pro-gay marriage California Supreme Court decision. Rosen concludes that judicial review has set back the cause of gay marriage more than it advanced it. In a recent updated edition of his book The Hollow Hope: Can Courts Bring About Social Change?, Gerald Rosenberg - perhaps the leading academic advocate of the view that judicial review is largely ineffective - argues that the gay marriage battle provides further evidence for the validity of his thesis. Judicial decisions that run counter to majority opinion, he claims, actually undermine the rights they seek to protect by generating political backlashes and diverting valuable resources away from more promising strategies.

In my view, the Klarman-Rosenberg thesis is greatly overstated, and the gay marriage battle actually proves that courts can have a significant impact even in some cases where their decisions run counter to majority public opinion. Richard Just puts the point well in his response to Rosen:

I think it's important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success. Thanks to courts, we have marriage equality today in two states (Massachusetts and Connecticut); without courts, we would have marriage equality in no states. Would the gay rights movement really be better off with no court-imposed gay marriage--and therefore no gay marriage at all?

You blame the 2003 Massachusetts decision for leading to gay-marriage bans in 30 states. I would put the numbers a bit differently. In states where courts have imposed gay marriage, we are now two for three in terms of making the ruling stick. (We lost in California. But in Massachusetts, where polls swung in favor of gay marriage within a year of the first same-sex marriage, we have effectively won. And likewise in Connecticut, where voters this week rejected calls by conservatives to hold a constitutional convention for the purpose of overturning the state supreme court's ruling on marriage equality.) By contrast, in states where courts have not imposed gay marriage, we are zero for 47. And, in many of these states (New York, for instance), this has not been for a lack of effort on the part of gay activists and the politicians allied with them.

The crucial point here is that in 29 of the 30 states that passed anti-gay marriage amendments, there wasn't any legal gay marriage anyway. Thus, gay marriage advocates didn't actually lose much in these states. To be sure, the enactment of these amendments may make it more difficult to adopt gay marriage in the future. Rosen emphasizes this point. However, it's important to remember that most state constitutions are actually easy to amend. That's why the anti-gay marriage forces were able to pass their amendments so quickly. In many states, a state constitutional amendment is an only slightly greater obstacle to legal change than a statute. From a pro-gay rights standpoint, the adoption of gay marriage in two states and its near-adoption in California was likely worth the cost of making gay marriage slightly more difficult to enact in some 30 states where it was unlikely to be adopted in the near future anyway.

Moreover, both Just and Rosen undervalue the extent to which the pro-gay marriage court decisions have shifted the parameters of the political debate. With the relatively radical gay marriage option now on the table, other pro-gay rights measures such as civil unions seem moderate by comparison. Thus, civil unions are now supported by the majority of the general public, and even by some social conservative politicians, including George W. Bush. It is difficult to imagine this result coming about so quickly without the pro-gay marriage judicial decisions.

None of this proves that the state supreme court decisions requiring gay marriage were correctly decided. It does, however, show that judicial power is often more potent than the Klarman-Rosenberg thesis suggests. To be sure, courts are unlikely to protect rights that are completely bereft of support elsewhere in society. If not for the liberalization of popular attitudes towards gays over the last 50 years, there would never have been enough pro-gay judges to reach decisions like Goodridge. But although the courts are not completely free of outside constraints, they can indeed sometimes protect rights that are opposed by majority opinion and by the political branches of government. Co-blogger David Bernstein and I tried to outline the conditions under which that might happen in this 2004 Yale Law Journal article criticizing Klarman. Although we didn't focus on the gay marriage battle specifically, many of our points apply to it as well.

Burt Likko (mail) (www):
What caused 30 states to adopt anti-same-sex marriage laws was the fear that a gay couple from Massachusetts would move to their state and demand that their Massachusetts marriage license be given the same respect as that of an opposite-sex couple under the Full Faith and Credit Clause of the Federal Constitution. That was a significant danger all along -- if you want to call that "backlash" I guess I can't argue with that.

Those of us who are advocates for same-sex marriage are going to have to accept that we need to gather more political support for our cause. Whether it's a case of backlash or something else, the political waters have been tested and the country isn't there yet. Meanwhile, couples who want to set up their lives that way have no alternative but to use civil unions or domestic partnerships. As more of these come into existence, as more gay people come out and try to live their lives with their partners, people will come to see that same-sex marriage hurts no one and maybe, just maybe, they'll remember the American civic virtue of minding their own business and letting people do things that don't hurt others.
11.18.2008 1:33am
Ilya Somin:
What caused 30 states to adopt anti-same-sex marriage laws was the fear that a gay couple from Massachusetts would move to their state and demand that their Massachusetts marriage license be given the same respect as that of an opposite-sex couple under the Full Faith and Credit Clause of the Federal Constitution.

That possibility was already forestalled by the federal Defense of Marriage Act. DOMA could of course be invalidated by a federal Supreme Court decision. But a state constitutional amendment can't prevent that from happening.
11.18.2008 1:39am
Burt Likko (mail) (www):
True, but wasn't DOMA was also a response to judicial activity in Hawaii?
11.18.2008 1:53am
J. Aldridge:
Judicial review is fine but there can never be any justification for judicial interference with the will of the people to govern themselves.
11.18.2008 1:55am
josil (mail):
If same sex marriage is a "no harm" activity, and should be judged constitutional on that basis, I'm finding it very difficult to see the constitutional defect in polygamy and polyandry. Given that, there's something ironic (if that's the word)with "No on 8" protests in Mormon church environs.
11.18.2008 2:00am
Cornellian (mail):
Judicial review is fine but there can never be any justification for judicial interference with the will of the people to govern themselves.

The will of the people is that the constitution be enforced.
11.18.2008 4:25am
Ron Hardin (mail) (www):
What protects judges from being removed by the majority?
11.18.2008 5:43am
Brett Bellmore:

That possibility was already forestalled by the federal Defense of Marriage Act. DOMA could of course be invalidated by a federal Supreme Court decision. But a state constitutional amendment can't prevent that from happening.


But what it can do is prevent a state court from ruling that the DOMA doesn't apply, because the state constitution requires the state to respect the marriage in question.

Bottom line, these initiatives were a response to a lack of trust in the judiciary.
11.18.2008 6:59am
smitty1e:
@Burt Likko:
people will come to see that same-sex marriage hurts no one

Or, the proponents of such may come to see that the societal prohibition is orders of magnitude older than any constitution in this country.
You judge a tree by the fruit, and this idea will gain traction roughly around the time it can produce some, sir.
Can't offer much hope for laboratory gymnastics that somehow overcome nature, either.
2+2!=3
11.18.2008 7:01am
PersonFromPorlock:
Actually, 2+2!=4.
11.18.2008 7:14am
PersonFromPorlock:
Damn, let's try again: 2+2!=5. Lackajava.
11.18.2008 7:15am
Daniel Chapman (mail):
No, you were right the first time, and due to his poor spacing, I had the same thought.
11.18.2008 7:35am
Conrad Bibby (mail):
"None of this proves that the state supreme court decisions requiring gay marriage were correctly decided. "

Ah, but who cares? Surely, the incremental value of having gay marriage (for which there is no popular consensus) versus civil unions (for which there is a popular consensus) is worth the cost to our constitutional system of licensing unelected judges to engage in wholesale social engineering. I for one welcome our new black-robed overlords.
11.18.2008 8:21am
BZ (mail):
"Spawn more overlords!"

Sorry, couldn't resist.
11.18.2008 8:45am
JB:
Legislative gay marriage in NY was held up by Republican control of the state senate.

Democrats have just retaken that chamber. As soon as they iron out the personality-based power struggles, look for legislative gay marriage sometime this session.
11.18.2008 8:47am
Happyshooter:
Ilya:

I think your word processor edit function made a mistake. Everywhere where you stated the court "protected" a right to gay marriage, I think you must have meant "invented and then protected" a right to gay marriage.
11.18.2008 8:57am
JPS3L:
Two quick points: (1) I think the adoption of the pro-family amendments adopted in 30 states was a backlash to Goodridge, and (2) there are times when it is proper for courts to act contrary to popular will. With respect to the first point, I take the view that the states effectively preempted the type of judicial activism seen in Massachusetts in their home state by adopting pro-family amendments. The fear was not the full faith and credit clause, the fear was a ground swell of state courts following the Massachusetts SJC's lead. As to the question of courts staking out unpopular ground, there are clearly times when it is appropriate to do so. By way of example, Brown v. BOE is illustrative of the courts imposing its unpopular judgment on states. That said, gay marriage is not in the same realm. Courts should only overturn democratically enacted legislation when either (1) the law contravenes a liberty or property interest that has textual support in the constitution and/or the bill of rights, or (2) when the government enacts a law that it does not have the constitutional authority to enact in the first place. In the case of Brown v. BOE, the 14th Amendment offered textual support for the idea of racial equality (to say nothing of the fact that we fought a civil war, in part, on abolitionist principles). (I should also note that I think the social science at the foundation of the Brown decision is awful legal reasoning, and would have preferred an analysis along the lines of Professor / Judge McConnell's 14th Amend. scholarship.) By contrast, there is nothing to offer similar textual support for gay marriage. As a libertarian, I am pro-gay marriage, but never through judicial fiat.
11.18.2008 9:04am
Yankev (mail):

Everywhere where you stated the court "protected" a right to gay marriage, I think you must have meant "invented and then protected" a right to gay marriage.
No, I think he meant redefined "marriage", which for millennia has meant a union between a man and a woman, so as to include a union between two people of the same sex. Once you redefine marriage to mean whatever people want it to mean, there is no particular reason to confine it to mixed couples.

Remember, the goal of newspeak is to make crimethink undoable.
11.18.2008 9:17am
Sarcastro (www):

No, I think he meant redefined "marriage"



People, people! Ilya clearly meant "destroy America by turning us way from God."
11.18.2008 9:21am
californian (mail):

I think it's important to point out that the gay rights movement has not worked exclusively through the courts. The reason it sometimes appears that the gay marriage movement has focused on the courts is because those are the only places it has actually had success.
[emphasis added]


There had been enormous success in California through the political process. We had civil unions that were quite close to marriages. We had many anti-discrimination laws that protected sexual orientation. We had leading employers publicly touting their same sex benefits plans. With a history of Democratic legislatures, California was poised to keep closing the gap.

Unfortunately, Gavin Newsom and the California Supreme Court ran ahead of the legislative process -- and now we're stuck with a very unfortunate result. Although the final chapter remains to be written, there is no doubt that the march toward same sex marriage suffered an enormous setback through a court challenge, at a time when legislative and corporate initiatives were making continual progress.
11.18.2008 9:24am
AntonK (mail):

"Does the Anti-Gay Marriage Backlash Prove that Judicial Review is Ineffective?"
In a word, yes.
11.18.2008 9:24am
Curt Fischer:
What is the deal with Yankev and Happyshooter's arguments? I'm unsure why their definition of marriage has anything to do with freedom of association for gay people.

I just don't see why the government should decide, define, or restrict the classes of intimate association that are available to its citizens.
11.18.2008 9:30am
Melancton Smith:
J. Aldridge wrote:

Judicial review is fine but there can never be any justification for judicial interference with the will of the people to govern themselves.


True, but basic 'unalienable' rights are not open for restriction by the tyranny of the majority. We clearly need more gays owning 'assault rifles'.

Human Rights > State's Rights > Federal Powers.

This is the lesson that Slavery, the Civil War, and several Constitutional Amendments should have taught us.

Social conservatives commit the same offenses as social engineers.

Stay out of my private life!
11.18.2008 9:59am
Fredrick (mail):
The Connecticut example wasn't a clear test of the issue - The initiative to hold a State Constitutional Convention was on the ballot because of a constitutional requirement that the option for a convention has to be presented to the voters periodicaly. It just so happened that this was the election cycle in which it appeared. Unlike Prop 8 in California, the Connecticut initiative was not event driven, and was not connected with any specific issue. Groups that opposed gay marriage tried to take advantage of the coincidental constitutional convention initiative, but didn't even start their campaign until after the CT Supreme Court ruled, which was a relatively short time before the election. The truely interesting part of the "No on the Constitutional Convention" campaign is that they completely avoided the gay marriage issue, and relied on the fact that anything could happen at a Constitutional Convention; that there was no required agenda, or any specific issue that would have to be addressed. Campaign adds harped on the idea that any convention would be dominated by "lobbyists and special interests", and the same sex marriage court decision was completely ignored. I'm figuring that the "NO" campaign's own polls showed that if they emphasized the same sex issue it would hurt their cause, rather than help. I think that if a Prop 8 style initiative had been on the ballot instead of the Constitutional Convention one, it would have likely passed.
11.18.2008 9:59am
Bart (mail):
The theory that courts can compel social change which is not supported by the People only works where the People prevented from voting on the issue ala Massachusetts and, if the Anti-Prop 8 folks get their way in the courts, in California. Absent the initiative system, the courts often can indeed operate as effective dictatorships.
11.18.2008 10:03am
Adam J:
Curt Fischer- Don't you get it, discrimination is okay when it's part of the definition of the word. See, if restaurant had simply meant place a place white people go to eat then there'd be nothing wrong with not allowing black people to eat there.
11.18.2008 10:06am
Adam J:
Yeah, it's quite dictatoral of those Courts to give people the right to marry whomever they please.
11.18.2008 10:25am
Yankev (mail):

What is the deal with Yankev and Happyshooter's arguments? I'm unsure why their definition of marriage has anything to do with freedom of association for gay people.
So my freedom of association is restricted if I can't marry my daughter or my sister? Or a ten year old? Or a horse?


I just don't see why the government should decide, define, or restrict the classes of intimate association that are available to its citizens.
Or why government should force redefinition of a word that has millennia of accepted meaning in order to meet the demands for social acceptance of a group who want to appropriate the name to mean something else, and then claim that denying them such a right means they are being denied the right to engage in what the word actually means.

adamJ, your comparison of sexual desire or behavior to racial discrimination is silly, and I have noticed more than one article by those who experienced legal and illegal racial discrimination and consider the comparison offensive.
11.18.2008 10:49am
Conrad Bibby (mail):
I have no problem with judges who go against public opinion if that's what the law requires. The problem arises when judges create law that lacks both textual and popular support in order to achieve outcomes the judges deem socially desirable.

Brown v. BOE, as JPS pointed out, had textual underpinnings that went back nearly a hundred years. Repealing "separate but equal" was clearly the correct decision as a matter of constitutional law. On the other hand, Roe v. Wade rests on an extremely weak constitutional foundation. Coupled with the fact that there was no popular consensus in favor of abortion rights, Roe was a complete train wreck of a decision.

Courts that have sought to impose SSM by judicial fiat are on flimsier ground than even the Roe court. Not only is there no textual basis for declaring SSM a constitutional right, at the time of Goodridge, there was at best only negligible popular support for it. At least with abortion, a lot of people identified with the idea that it was "none of government's business." There's no comparable moral force behind SSM. Most Americans don't instinctively regard the creation of SSM as something that must happen in order for our society to reach a state of perfection. People were always troubled by racial segregation and they were increasingly troubled by the idea of government intruding into the bedroom. People were not, however, troubled by the notion of gay couples not being able to marry.

To gay advocates who celebrate their success in getting a few judges to impose SSM from the bench, I would ask, what have you really won? If the goal is to become more integrated into the fabric of American society, how does becoming identified as a litigious interest group help achieve that objective? If you're fighting for something as intangible as "acceptance," you need to be careful how you go about it.
11.18.2008 10:50am
MarkField (mail):

In the case of Brown v. BOE, the 14th Amendment offered textual support for the idea of racial equality ... By contrast, there is nothing to offer similar textual support for gay marriage.


The textual support for both cases is identical (though in the state SSM cases, the courts have relied on state constitutions which have the same effect as the EP clause in the 14th A).

In more general response to Rosen's claim, it seems to me much too early to make this judgment. Goodridge was decided in 2003 and it's now 5 years later. Brown was decided in 1954; what would Rosen have said about political backlash in 1959 (shortly after Little Rock)?
11.18.2008 10:59am
jrose:
It seems to me we would be further away from same-sex marriage without the court cases, and I'm not only speaking about the obvious existence of same-sex marriage in Massachusetts and Connecticut thanks to court cases.

Yes, the federal and state DOMAs were all passed in response to court cases. But, none of these have delayed same-sex marriage, relative to no court cases.

On the other hand, the court cases raised the issue into the public debate in the first place, and the public debate has moved opinion towards same-sex marriage as evidenced by poll numbers over the years. Without the court cases, public debate would have been delayed, and so too would the changing attitudes towards same-sex marriage.
11.18.2008 11:02am
Adam J:
Yankev - my comparison isn't between sexual behavior &racial discrimination, it's a comparison between racial discrimination &sexual orientation discrimination. My point should be obvious, simply because your definition of marriage is discriminatory doesn't justify discrimination. And what's your point about some people finding the comparison offensive? I can't draw a comparison between two kinds of discrimination simply because someone might find it offensive? I've said nothing offensive about anyone of any nationality, if someone has such tender sensibilities its their problem, not mine. I can't believe you're trying to play the race card to win this argument.
11.18.2008 11:16am
Thorley Winston (mail) (www):
I agree with pretty much everything JPS3L wrote, except for the last sentence as while it might be his personal policy preference (enacted legislatively), there is nothing “libertarian” about supporting SSM.
11.18.2008 11:37am
Elliot123 (mail):
"The crucial point here is that in 29 of the 30 states that passed anti-gay marriage amendments, there wasn't any legal gay marriage anyway. Thus, gay marriage advocates didn't actually lose much in these states. To be sure, the enactment of these amendments may make it more difficult to adopt gay marriage in the future."

I guess I would question whether the judicial/amendment system we are in with regard to SSM is preferable to the legislative approach. I'd ask if SSM will spread faster under the J/A system or under the legislative system.

In either case, it will demand popular support that people ignored in taking the question to the courts. (Did they not know how amendments work?) SSM may prevail, and we can only speculate on what would have happened if the legislative approach had been taken, but if I were planning strategy, I'd dump the judicial approach and aim at the legislature. And that's probably a lot more work than going to vourt.

Amendments can trump the legislature, too. But it's less likely since there has to be a lot of popular support to get through the legislature.
11.18.2008 11:57am
Conrad Bibby (mail):
Equal Protection doesn't require the creation of SSM. Equal Protection requires the government to be colorblind. In the present context, it requires government to be blind to a person's sexual preference. Thus, it would be unconstitutional to pass a law prohibiting a gay man from marrying a woman (call it the "Cole Porter Act"). However, if you're asking the state to create SSM, you're not simply asking the government to be sexual-preference-blind. Instead, you're saying that the government is constitutionally obligated to change the definition of marriage so that it's simply an agreement of any two people, regardless of sex or sexual preference, to form a binding social union. And if such an institution is constitutionally required for any two people, what would be the constitutional argument for not allowing more than two people to enter into such unions? "That's not what a 'marriage' has traditionally been"?

Perhaps society will choose to re-order itself so that groups of all sizes, sexes, and sexual preferences can form "marriages." To argue that such re-ordering is required in order to comport with Equal Protection is insane.
11.18.2008 12:04pm
Sarcastro (www):
However, if you're asking the state to create same race marriage, you're not simply asking the government to be color-blind. Instead, you're saying that the government is constitutionally obligated to change the definition of marriage so that it's simply an agreement of any two people, regardless of race, to form a binding social union.

What's next, marrying dogs?
11.18.2008 12:21pm
Conrad Bibby (mail):
Sarcastro: Not sure what planet you're referring to. On Earth, nobody's asking the government to create same race marriage.
11.18.2008 12:35pm
Sarcastro (www):
[Conrad Bibby I didn't see any requirement that the prohibition you're arguing against need be against homo-(sexual/racial). Your argument also works against prohibiting hetero-racial marriage.

There are some good arguments against same-sex marriage, but "traditional definition" isn't one of them. It proves too much, including the evil that was the abolishment of anti-miscegenation laws.

You could even take it all the way to denying women the franchise!

Go with the "marriage encourages genetic families to stay together" argument instead.]
11.18.2008 12:51pm
John Howard (eggandsperm.org) (mail) (www):
The federal DOMA doesn't prohibit states from recognizing same-sex marriage from another state, it just says they don't have to. So those 30 Amendments could certainly be a way to force their courts and legislature to not recognize Massachusetts marriages, in case they might have. Also, DOMA was not necessary to allow states to refuse to recognize Massachusetts marriages, they would have been free to do that without DOMA. I suppose the federal government needed DOMA to avoid recognizing same-sex marriages federally. But mainly it was a tool to allow a few states to prove that "the sky won't fall" and slowly roll out SSM across the country.
11.18.2008 12:57pm
R Nebblesworth:
To gay advocates who celebrate their success in getting a few judges to impose SSM from the bench, I would ask, what have you really won? If the goal is to become more integrated into the fabric of American society, how does becoming identified as a litigious interest group help achieve that objective? If you're fighting for something as intangible as "acceptance," you need to be careful how you go about it.

Business entities are a very litigious group, and they seem to be pretty well integrated into society. Why should anyone be "careful" in advancing their legal interests? Presumably you would not just lay down and take it, to use an unfortunate metaphor, if you though you were getting the short end of the stick from the legal system.
11.18.2008 1:10pm
Yankev (mail):

simply because your definition of marriage is discriminatory doesn't justify discrimination.
Simply because the definition refers to something you do not care to do does not justify forcing everyone else to redefine to include something you prefer to do.


I can't believe you're trying to play the race card to win this argument.
As I recall, you introduced race, not I,by falsely positing that restaurant once meant a place where only white people go to eat.

Suppose I have a restuarant that serves only foods that appeal primarily to a given ethnic group or market segment; e.g. what was once known as soul food. Am I discriminating against other groups who may not care for that food? And if you open a restuarant that serves solely lutefisk, lefsa and Swedish sausage, and want to call it soul food; if I point out that soul food has an accepted meaning that does not encompass lutefisk, lefsa and Swedish sausage, have I discriminated against you?

If you then seek a law redefining soul food to include lutefisk, lefsa and Swedish sausage, is it discriminatory for me to point out the absurdity of your demand, and that however much you like those foods, it is false and misleading to give that name to your cuisine, and that the law would force everyone to redefine a perfectly useful term to mean something else?

The cuisine analogy is trivial, but illustrates the point. That the institution of marriage - a man to a woman - may hold no appeal for homosexuals does not make it discriminatory to refuse to redefine it in a way that does.
11.18.2008 1:25pm
John Howard (eggandsperm.org) (mail) (www):
Go with the "marriage encourages genetic families to stay together" argument instead.

That's weak. Go with "marriage means the couple can't be prohibited fro attempting to conceive with their own genes, and same-sex couples shouldn't be allowed to attempt to conceive with their own genes." That one's airtight, and also moves us back to the core issue of conception rights.
11.18.2008 1:27pm
Yankev (mail):

And if such an institution is constitutionally required for any two people, what would be the constitutional argument for not allowing more than two people to enter into such unions? "That's not what a 'marriage' has traditionally been"?

Indeed, given that there are now and always have been parts of the world where polygamy was the norm, and none where "marriage" was defined as unions of the same sex. Ditto with endogamy.
11.18.2008 1:32pm
Yankev (mail):

Not sure what planet you're referring to. On Earth, nobody's asking the government to create same race marriage.
Conrad, it's usually a waste of time refuting people who think that they are making a devastating and irrefutable argument when all they have done is make a silly and transparent distortion of someone else's position.
11.18.2008 1:35pm
jrose:
In the present context, it requires government to be blind to a person's sexual preference. Thus, it would be unconstitutional to pass a law prohibiting a gay man from marrying a woman

If it was a Constitutional requirement that government be blind to a person's sexual preference, then same-sex marriage would be constitutionally required because without same-sex marriage gays would be unable to marry anyone for whom marriage makes sense.
11.18.2008 1:39pm
Sarcastro (www):
[Yankev I'm not saying the parallel with race is some sort of awesome silver bullet argument. But it does point out that the "traditional definition" argument proves too much. You need an additional distinguishing argument is all.

I suggest something about reproduction.]
11.18.2008 1:40pm
Tritium (mail):
Constitute - Fix, Establish
      A Constitution fixes principles that must be adhered to at all times by those parts established by it, and any actions that proceed from it must adhere to the same principles that it in itself is subject to.  Any business conducted in the name of  “congress” must follow the rules provided in its establishment before it can be respected as such.
      From the introduction of the Constitution, to the ratification, there is no greater truth to be found than these: 
      Each branch of the Constitution establishes an Article of Government.  Without Congress (Article I.) there can be no executive (Article II.) of the United States. 
      Without the Executive Branch (Article II.), congress lacks the ability to give effect to any acts that emanate from that body whose powers are granted to it by the Constitution.  And objections to any act of Congress require by the executive, must be returned to Congress and a new vote will be had in consideration of the objection prior it becoming law. 
      And without these two branches being established, the Judiciary (Article III.) has no objects of law or force in which its judgment would have an effect upon.

      Does anyone want a majority of the people to have an authority to seize their rights, and tell them how it can be used?

      Religion is an established organization who by social compact establishes their laws of conscious that are binding upon those who wish to be bound.  No establishment of Religion can in any way manifest itself in congressional acts in the federal government, therefore, any act congress in its official capacity shall enact, being contrary to this natural right of all mankind, is null and void. Any acts giving force to such unconstitutional Authority is treasonous, and must never exist in the United States of America as long as Liberty is to thrive.
      To be constitutional, in respects to Liberty and Justice, an act to take from an individual, a group of individuals, or a class of individuals, any right held by others, converts a right into a privilege. Once you authorize prevarication of rights, they no longer maintain the status of a right, but becomes a privilege that must for the sake of equality be out of the reach of all. Otherwise, they risk a new privileged class becoming exclusively entitled at the expense of others and likewise, will become the sole source for elections for purposes of self preservation and control upon others.
      The freedom of conscious is the right of every person.  It cannot be seized or manipulated without inflicting death.  Actions against others can be stopped, stolen property can be seized, and consequences for violating the rights of another are the true nature of Justice.
      If you read through the statements contained above, you will see there is no respect given to any interests other than the those of observing the Constitution.  There is no party bias in any way shape or form, as it pertains to the true nature of our Constitution, and the true nature of man.

      "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."


      There is no test of religion to be required as a qualification because there is no power held by the Federal or State governments that are contrary to natural laws.  No person can impose their beliefs upon any other person, state, or foreign politic.  But because the right combination of swaying the public opinion can affect an election, so it is used and will continue to be used against the people for reasons of selfishness, popularity, and greed.  Corruption doesn't appear by a view someone holds on a subject. A person who proposes any law that disposes of a rights, he is violating his right the divine due process, and subjecting him to double jeopardy when his day of judgment arrives. If you are correct as to the condemnation by God of such behavior, and no man can possibly enter the kingdom of God for sinning against him, then there is no danger to you or your family.  If you are wrong in your judgment upon others, are your actions considered equally a sin in the eyes of your God, and in doing so, condemned by these actions of assuming the role held only by God?  Do you not represent yourself in a vain attempt to impose the name of God upon others? And if you truly represent God, and have the right as Judge, do you not subject the person you so vehemently are opposed, to a double jeopardy on the same subject?
Justice can never be realized as long as a manipulation of the perception of truth as if it were fact, when the truth is, the simple of all answers is likely the correct one. In the terms of the Constitution, a document that FIXES a set of Principles that cannot unfix that which has already been fixed, an amendment, an action that can only fix principles that by expereince are necessary and proper to secure liberty, and other existing rights already declared as natural or 'self evident', must not be contrary to any part of the original Constitution. Congress, being established by the Constitution, cannot propose amendments that go against these principles, and all had the ability to protect the Constitution and were obligated to protect by oath, are all guilty and I believe automatically disqualified from holding an office of trust ever again.
.
11.18.2008 1:41pm
Sarcastro (www):
John Howard's fear about heteros no longer being allowed to have kids together if the gays get to call themselves "married" is awesome.

It's like "brave new world" only real!
11.18.2008 1:44pm
FWB (mail):
Marriage is religious sacrament that has been stolen/usurped by the government. The govenrment should never have been and should not now be in the marriage business. Marriage should be wholly left to the churches. The government can weigh in with an additional civil union/government approved contract concerning real and personal property.

But this is not what the gay and lesbian community wants. In many states, two partners enjoy the same privileges as married persons. And people are free to contract in their own fashion. The G&L community wants the total destruction of the religious side of marriage.

It will be interesting to see what comes next for these persons and others outside what is "normal" (as per the Webster definition of "normal").

Dominus providebit!
11.18.2008 2:13pm
Yankev (mail):
A to race analogies, see Dennis Prager athttp://frontpagemagazine.com/Articles/Read.aspx?GUID=42143415-069F-400F-BA6B-AD386066FC7D:

And so, the movement appropriates the symbols and rhetoric of the back civil rights struggle when that struggle and the movement to redefine marriage have next to nothing in common. How can a seriously moral individual compare forcing a black bus rider to sit in the back of a bus or to give up his seat to a white who demands it, or prohibiting a black human being from drinking from the same water fountain or eating at the same lunch counter as a white human being, or being denied the right to vote, or being prohibited from attending a school with whites, let alone being periodically lynched, to either the general gay condition today or specifically to being given the “right” to redefine marriage for society?



The vast majority of Americans, including those who oppose same-sex marriage, know that the homosexual is created in God’s image every bit as much as is the heterosexual; and acknowledge that the gay man or woman has a right to love whom he or she wants and that commitment has the right to be given legal protections.



But radically redefining the most important institution in the life of a civilization; and routinely labeling as the moral equivalent of racists every individual who does not want children regularly asked whether they will marry a boy or a girl when grown up, and who rightly fears that every traditional religious community will be labeled as a hate group -- these are not commensurate with civil rights.




Gay and straight activists who liken their demand to redefine marriage to black suffering under Jim Crow merely cheapen historic black suffering. Most blacks know this but for the sake of their political coalition won’t say it. They should. Rosa Parks is in a different moral category than the protestors against Proposition 8.
11.18.2008 2:15pm
Yankev (mail):

John Howard's fear about heteros no longer being allowed to have kids together if the gays get to call themselves "married" is awesome.
Way to distort again, Sarc. It's clear to anyone reading John Howar's post that he was showing the difference between anti-miscegenation laws, which did keep people from marrying if they were of different races, and laws that do not include same sex unions within the definition of marriage.

But ridicule can be so much more effective than actual discussion, can't it?
11.18.2008 2:19pm
Yankev (mail):

Justice can never be realized as long as a manipulation of the perception of truth as if it were fact, when the truth is, the simple of all answers is likely the correct one. In the terms of the Constitution, a document that FIXES a set of Principles that cannot unfix that which has already been fixed, an amendment, an action that can only fix principles that by expereince are necessary and proper to secure liberty, and other existing rights already declared as natural or 'self evident', must not be contrary to any part of the original Constitution. Congress, being established by the Constitution, cannot propose amendments that go against these principles, and all had the ability to protect the Constitution and were obligated to protect by oath, are all guilty and I believe automatically disqualified from holding an office of trust ever again.
Is anyone else as confused as I by what point Tritium is trying to make? Is this an argument that the consitution does not require ssm? Does require ssm? Prohibits requiring ssm?
11.18.2008 2:21pm
Sarcastro (www):
[Yankev I actually honestly misunderstood John Howard's post. thenut makes a cloning-based argument, I thought this was related.

Your interpretation makes a bit more sense, though I think modern marriage is more about love than it is about making babies.

If I was wrong about what you meant, I’m sorry John Howard!]
11.18.2008 2:26pm
Sarcastro (www):
Yankev is right to note that Blacks riding the bus doesn't compare to gay marriage.

Good thing there were never any racial marriage laws!
11.18.2008 2:28pm
Adam J:
Yankev- "Simply because the definition refers to something you do not care to do does not justify forcing everyone else to redefine to include something you prefer to do." The argument that somehow people are "forced" to do anything by same-sex marriage is ludicrous. That's like arguing that the definition of religion should only include your religion because otherwise you would forced to accept other religions.

I also still don't understand your point about how comparing two types of discrimination is silly... the States history of discrimination against blacks is nowhere near as severe as Germany's history of discrimination of Jews... does that mean we should find it offensive if the two were compared? Arguing the comparison is offensive because Blacks had it worse then homosexuals is just silly. Prager is just baiting people there, hoping that many people find the comparison offensive because of many people's latent distaste for homosexuality.
11.18.2008 2:45pm
Conrad Bibby (mail):

If it was a Constitutional requirement that government be blind to a person's sexual preference, then same-sex marriage would be constitutionally required because without same-sex marriage gays would be unable to marry anyone for whom marriage makes sense.



Tell that to Cole Porter. Marriage has always been a union of opposite sexes, not necessarily a union of two heterosexuals of opposite sexes. Gays have the same right to get married as heterosexuals. What you're arguing for is to have government reinvent marriage in order to make it a more attractive option for homosexuals. In fact, you're arguing that Equal Protection requires the government to redefine marriage in this fashion. However, if Equal Protection means the government has to broaden the concept of marriage to embrace the idiosyncratic sexual preferences of all Americans, then why not group marriage for people who like group sex? Brother-sister marriage for those who enjoy incest? How does Equal Protection guarantee marriage rights for a same-sex homosexual couple but not these other proposed unions?
11.18.2008 3:15pm
Sarcastro (www):
Hooray for loveless marriage! Back to the old economic institution it once was!
11.18.2008 3:20pm
jrose:
Tell that to Cole Porter

Porter's marriage was a sham. It isn't equal when straights can enter into a real marriage and gays are limited to sham ones.

How does Equal Protection guarantee marriage rights for a same-sex homosexual couple but not these other proposed unions?

Only prohibitions against same-sex marriage discriminate against people because of who they are. The others discriminate against people because of what they do.
11.18.2008 3:25pm
Conrad Bibby (mail):

. . . without same-sex marriage gays would be unable to marry anyone for whom marriage makes sense.



This argument makes no sense for another reason as well. I'll explain: The Constitution guarantees everyone the right of free association. Let's say the only people in the world I really want to associate with is a tribe of pygmies in Borneo. Does that mean Equal Protection requires the government to annex Borneo so I can enjoy it as much as my more conventional neighbor who happens to like Americans?

What you're doing, I think, is conflating the constitutional right of Equal Protection with a doctrine not found in the Constitution which we can call "Equal Subjective Enjoyment of Rights." Equal Protection means that every person, male or female, black or white, homo- or heterosexual has an equal right to marry an unrelated adult person of the opposite sex. It doesn't follow that everyone has a constitutional right to find the same degree of fulfillment in the exercise of that right as everyone else.
11.18.2008 3:33pm
Elliot123 (mail):
"Why should anyone be "careful" in advancing their legal interests?"

Because recent history has shown that approach resulted in amendments in 30 states. More care could have advanced the cause while avoiding the unnecessary impediments set up by those amendments. It's a question of what is the most effective way to achieve a desired goal.

It can't be done without winning over the population. They can trump the courts. Massachusetts was probably a mistake, but after the string of amendments it generated, was California a mistake or just stupid strategy?
11.18.2008 3:36pm
Adam J:
Conrad Bibby - Aren't you really just pointing out how ludicrous the definition argument is? Incestuous marriage is a legitimate marriage under the "definition" of marriage &in most countries. From what I understand, we've outlawed incestuous marriage because of the possibility of birth defects &because they was often very questionable consent in these marriages. We shouldn't prohibit certain types of marriage simply because we can.
11.18.2008 3:37pm
Yankev (mail):
The constitutionm says I have the right to vote. I don't want to vote; I'd rather play golf. We need to redefine voting to include playing golf, so that my rights are protected.
11.18.2008 3:43pm
Adam J:
Yankev - That's clever, because the right to marry is almost the same thing as playing golf.
11.18.2008 3:47pm
Sarcastro (www):
the dictinoary says shrimp are food. Shrimp disgust me. The Bible says you can't eat shrimp. We need to redefine food to exclude shrimp, so that my diet is protected.
11.18.2008 3:48pm
nutbump (mail):

(link)Adam J:
Conrad Bibby - Aren't you really just pointing out how ludicrous the definition argument is? Incestuous marriage is a legitimate marriage under the "definition" of marriage &in most countries. From what I understand, we've outlawed incestuous marriage because of the possibility of birth defects &because they was often very questionable consent in these marriages. We shouldn't prohibit certain types of marriage simply because we can.

Saying "Most countries" is clear attempt of homosexuals to mislead general public. Could you please list here at least 20 countries where incest is legal.

Now, you have to remember that by equalizing marriage with homosexual union, the procreation is out of scope of marriage, otherwise there will be no equality between homosexual and heterosexual couples.
Once procreation is eliminated, there is no reason not to allow incestous couples to get married, so your argument is flawed.
11.18.2008 3:53pm
Elliot123 (mail):
"Now, you have to remember that by equalizing marriage with homosexual union, the procreation is out of scope of marriage, otherwise there will be no equality between homosexual and heterosexual couples."

Is procreation a requirement for civil marriage? Sex? Intention to procreate? Love? Commitment? What state requires any of these in the scope of marriage?

In most states, civil marriage now requires $25, unmarried partners of opposite sex, two witnesses, and proof of age. Are there any other requirements? If so, in what state?
11.18.2008 4:06pm
jrose:
Let's say the only people in the world I really want to associate with is a tribe of pygmies in Borneo. Does that mean Equal Protection requires the government to annex Borneo

You are not being discriminated against because of "who you are", but rather "what you do". In contrast, same-sex prohibitions discriminate against gays because of "who they are".
11.18.2008 4:09pm
ohwilleke:
Notably, a fair number of the 30 states that constitutionally ban gay marriage (Colorado among them) have domestic partnership laws that grant state law legal rights equivalent to marriage, in theory at least, and have many couples who were married in a state that permits gay marriage and refer to each other as spouses.

Relative few of those thirty states have both a ban on gay marriage and a ban on domestic partnership, and attempts to define the scope of bans on domestic partnerships have resulted in litigation that turns out different ways in different places.
11.18.2008 4:09pm
Conrad Bibby (mail):
As for the analogy between SSM and interracial marriage, it's important to note that, in the absence of these statutes, there was no historical or cultural reason blacks and whites could not marry. Throughout history, all sorts of mixed-ethicity marriages have been known to take place. (I'm not saying it was all that common, as ethnic diversity itself is a fairly modern phenomenon.) That's why there needed to be statutes enacted in order to prevent interracial marriage. As far as I know, there was never any occasion to enact laws against SSM until recently because no society ever recognized the practice in the first place.

Furthermore, America didn't repeal its bans on interracial marriage as part of an effort to reform our laws concerning marriage. We repealed those laws as part of a reform of our policies toward black people. Unlike blacks, gays have never held the official status of either non-citizens or second-class citizens in this country.

In short, blacks clearly have a much stronger historical and constitutional claim to the right to marry whites than gay people have to the right to marry people of the same sex.
11.18.2008 4:20pm
Sarcastro (www):
jrose but I love the gays, I just don't want them to act gay!

Feel free to be attracted to other men, but you cant marry them or sex them up.

See? It's what they do, not who they are!
11.18.2008 4:20pm
John Howard (eggandsperm.org) (mail) (www):
Sarcastro, I am making a Brave New World/cloning-based argument. I am saying that we should prohibit all forms of creating people except joining a man's sperm and a woman's egg, containing their unmodified genes. We should not allow any other method, including whatever it might take to create offspring from two people of the same sex. And we should not equate the right of a same-sex couple to procreate with their own genes with a man and woman's right to procreate with their own genes. Indeed, that would put natural conception rights in jeopardy. Marriages should not be subjected to tests and risk assessment if they want to attempt to procreate together with their own genes.

Eliot123, no procreation is not required for marriage, procreation should remain a right of marriage, and not be subject to prohibition. Same-sex procreation should be prohibited.

If people stopped insisting on equal rights to procreate with someone of the same-sex, we could make real progress getting federal recognition for civil unions that are defined as "marriage minus conception rights". Don't strip conception rights from marriage by equating a man and a woman's right to procreate with two people of the same sex.

Remember that siblings can procreate, but we don't let them. That's why they can't marry. Only people who would ethically procreate if they procreated can be married, because marriage is society's approval of them procreating together.
11.18.2008 4:31pm
John Howard (eggandsperm.org) (mail) (www):
Say, OT, but are gay men attracted to Thomas Beaty, or is he lacking something that gay men find attractive?
11.18.2008 4:32pm
Skorri:
So say there's a judge that is completely convinced that, as a matter of Constitutional law, not allowing a woman to marry the person of her choice, regardless of gender, is a violation of the Equal Protection Clause. Goes for an individualistic approach to the EP, makes a very strong intermediate scrutiny type review, concludes that woman's rights are being burdened based on semi-suspect class, yada yada yada.

If that judge then concludes that judicial rulings in favor of gay marriage are politically unwise, and issues a ruling based on that political belief ... does that make him or her an Activist Judge (tm)?

Because I suspect that might very well happen in California. And it's pretty much the textbook definition of activism.
11.18.2008 4:35pm
Pragmatist:

From what I understand, we've outlawed incestuous marriage because of the possibility of birth defects &because they was often very questionable consent in these marriages. We shouldn't prohibit certain types of marriage simply because we can.

Actually, the origins of incest laws are mostly derived from British common law, along with adultery, rape and other actions considered morally objectionable (birth defects may have been a reason as well, but not the primary one from anything I've read). Marriages with coerced or under age spouses can be charged as other crimes, regardless of relation.

I don't think anyone is advocating we prohibit any marriages (or anything else) just because we can. Most people want to prohibit it simply because it's wrong.
11.18.2008 4:36pm
Elliot123 (mail):
"If people stopped insisting on equal rights to procreate with someone of the same-sex, we could make real progress getting federal recognition for civil unions that are defined as "marriage minus conception rights".

How's that procreation with the same sex working out for them?
11.18.2008 4:46pm
Pragmatist:

Remember that siblings can procreate, but we don't let them. That's why they can't marry. Only people who would ethically procreate if they procreated can be married, because marriage is society's approval of them procreating together.

So it's right for incest to be illegal solely because of the increased incidence of birth defects? First cousin marriages have birth defect rates of about 5%, and rates of Down Syndrome in children born to mothers over 45 is about 5%. Therefor it would be right to ban women over 45 from marrying, since if they chose to procreate it would exhibit similar risks.

If you want to allow first cousins marriages as some states do, I can find similar numbers for closer relationships and other disease risk factors, but the question remains the same: Why is the increased chance of birth defects from incestuous relationships legally unacceptable while we allow people with other risk factors to marry and have children?
11.18.2008 5:01pm
John Howard (eggandsperm.org) (mail) (www):
Well, it looks like it'll be difficult, and quite possibly be impossible, but on the other hand, research continues. Here is a recent statement from a group of progressive ethicists on the use of artificial gametes.
11.18.2008 5:03pm
Elliot123 (mail):
"Well, it looks like it'll be difficult, and quite possibly be impossible, but on the other hand, research continues. Here is a recent statement from a group of progressive ethicists on the use of artificial gametes."

I'm sure those progressive ethicists will have a scientific breakthrough in genetics any day now. Keep on thinking, guys. One more progressive ethicist symposium with day-old donuts and they'll be home free.

Does anyone know how someone gets to be an ethicist? Is there a degree program or state license? Kaplan test prep?
11.18.2008 5:12pm
John Howard (eggandsperm.org) (mail) (www):
Nope, pragmatist, it's not about risk of birth defects. For example we don't let adoptive siblings marry either, even if they are unrelated by blood. The extreme risk to the child of same-sex conception is the most obvious reason not to allow same-sex conception, but you are right that all procreation has risks, so obviously we can't start making risk assessments for all people about whether or not to let them procreate. Even if same-sex conception were considered "safe", we shouldn't allow it, precisely because it might even become safer than natural sexual procreation, since it takes place in a lab and involves controlled implantation of tested embryos. If natural conception has to compete with lab-designed genetically engineered conception, it would lose, and that's the big worry.
11.18.2008 5:21pm
John Howard (eggandsperm.org) (mail) (www):
Does anyone know how someone gets to be an ethicist?

Right, it's a sham profession, where being completely oblivious to ethics is all that matters. That group I linked to has some real bogus people in it, like Julian Savulescu and John Harris. They wrote a book together called “The Creation Lottery: Final Lessons from Natural Reproduction: Why those who accept natural reproduction should accept cloning and other Frankenstein reproductive technologies.”
11.18.2008 5:38pm
Dilan Esper (mail) (www):
In the case of Brown v. BOE, the 14th Amendment offered textual support for the idea of racial equality ... By contrast, there is nothing to offer similar textual support for gay marriage.

Conservatives obviously don't want to be on the wrong side of history, so they have been rewriting Brown for 54 years. (At the time, it is worth noting, conservatives including future Chief Justice Rehnquist opposed it on free association and originalist grounds.)

The 14th Amendment says NOTHING about segregation. It only mandates equality. "Separate but equal", if it were indeed, equal, is not barred by the text of the amendment. Its spirit, its penumbras and emanations, sure. But not its text.

And certainly not by its original meaning. There is NO evidence that anyone at the time understood the 14th Amendment to bar racial segregation. None.

The reality is that the 14th Amendment sets out a vague standard of equality. Future generations have to give it content. And a modern conservative movement that wants to (at least formally) not segregate blacks (or whites) while discriminating against gays has to make up a legal justification for its position.
11.18.2008 5:45pm
Bob Van Burkleo (mail):
Marriage is religious sacrament that has been stolen/usurped by the government.

No marriage is a natural condition of the human animal that was stolen/usurped by religion. Government merely licenses a contract in support of marriage - a made up thing like government can no more make you married than it can make you tall or smart.

Marriage is a natural individual right, part and parcel to 'pursuit of happiness' of most human beings religious or not. Some people marry men, some women why should some citizen's marriages be ignored by a state committed to protecting these inalienable rights?
11.18.2008 5:46pm
Adam J:
nutbump - Take a look here.

Pragmatist- Common law eh? Someone should had told King George, since he married his first cousin.
"I don't think anyone is advocating we prohibit any marriages (or anything else) just because we can. Most people want to prohibit it simply because it's wrong."
No, instead you just call it wrong, just because you can. If its wrong, why isn't anyone posting that is against it spent their time explaining why it is wrong?
11.18.2008 6:08pm
John Howard (eggandsperm.org) (mail) (www):
Government merely licenses a contract in support of marriage - a made up thing like government can no more make you married than it can make you tall or smart.

No, government is what approves of people conceiving together and punishes people for risking conception without being approved to have children together. This is probably the first form government took, saying that Og is allowed to have sex with Grog, but anyone else that tries to will get stoned to death.
11.18.2008 6:09pm
whit:

Yeah, it's quite dictatoral of those Courts to give people the right to marry whomever they please.



except they don't. when they allow incestuous marriage, polygamy, etc. then we can talk.

i'm for gay marriage, but the reality is that the reason the courts invented a legal right to gay marriage (thus, completely redefining marriage) is because it is seen as progressive and forward thinking. incest and polygamy isn't.

they didn't invent a right for two brothers to marry , or a brother and sister (let's assume in the latter case, we are talking a sterile sister).

why didn't the court dictators "give people the right to marry whomever they please" in those cases?

oh, but of course politics and morals has NOTHING to do with it. lol
11.18.2008 6:13pm
Matteo (mail) (www):
The analogy between SSM and interracial marriage is entirely spurious for the following reason: Anti-miscegenation laws are wrong because racism is wrong. SSM is wrong because sodomy is wrong. It was wrong to make racism a government -protected institution via anti-miscegenation laws, just as it would be wrong to make sodomy a government-protected institution via SSM laws. Individual people are free, however, to consider race when they marry, just as individual people are free to commit acts of sodomy. But neither thing should be instituted as a matter of government policy. Sodomy and racism are both vices, and neither of them should become societal institutions.

Racism is wrong because all have been endowed by their Creator with equal dignity. Sodomy is wrong because it goes against the intentions of this same Creator. The ground of both moral judgments is the same: the intentions of the Creator. This same Creator was mentioned in the founding document of The United States as the source of all of our rights. It cannot possibly, then, be the case that SSM is justified on the same grounds as bans on anti-miscegenation laws.

Undoubtedly, many will heatedly object that it is invalid to consider God when voting or creating law. I ask: where in the Constitution does it require that all moral questions must be decided from a functionally atheistic perspective? Is atheism a privileged viewpoint, in effect acting as the established religion of the United States? I think not.

Bottom line: there is no right to SSM. And there is no violation of equal protection because no class of people is denied the right to participate in the institution of marriage (which, by divine definition, is to the opposite sex).
11.18.2008 6:14pm
whit:

No marriage is a natural condition of the human animal that was stolen/usurped by religion


no. exactly 100% wrong. marriage is an evolved social institution. it is FAR from natural. men, especially have a biological drive NOT to be monogamous. it is evolutionarily optimal to spread one's seed as wide as possible.

marriage evolved as a way to counteract biological drives (for men especially) to schtup everything in sight.

women can only get pregnant (at best) once every nine months, otoh, and thus are very limited at how much genetic spreading they can do.

arguing that marriage is "natural" is absurd. it is no more "natural" than any of a # of other evolved structures in society - like laws for instance. we evolved a system of laws to PREVENT the strong and aggressive from simply taking what they wanted from the weak and passive, etc.

similarly, marriage evolved to go AGAINST our base nature.

that's what taboos, religion, social structure, law etc. DOES. it places limits on what is acceptable, punishes those that transgress and rewards those who do things that we deem beneficial for the group.

even such basic things as the length of refractory period in men is significantly shortened when men are presented with a different sexual partner. why? because the biological urge is to have sex with lots of women, not one.
11.18.2008 6:20pm
Conrad Bibby (mail):

Feel free to be attracted to other men, but you cant marry them or sex them up.

See? It's what they do, not who they are!



Feel free to be attracted to your own sister, but you can't marry her or sex her up.

I'm not saying homosexuality is of the same quality as desiring incest. Nor am I saying (earlier) that homosexuality is of the same quality as desiring to associate only with pygmies from Borneo. What I'm suggesting is that there is no basis for bringing desire A under the umbrella of EP without doing the same for desire B or desire C.

In particular, I don't accept the distinction that, for the homosexuals, this is an issue of "who you are" whereas for the guy who wants to marry his sister, this is merely an issue of "what you do." They're both desires (again - perhaps of a different nature), whether or not society chooses to institutionalize them in something called a marriage. There's no bright line distinction between "who you are" and "what you do." If I don't like spinach is that "who I am," or is it "what I do"?

To suggest that application of the EP depends on whether the characteristic in question defines who I am rather than what I do is to leave the entire murky area in the hands of judges to decide on a case by case basis. It's to advocate no standard at all. A judge could say my hatred of green vegetables is who I am and therefore the state prison has to make special provision for alternative side dishes to feed me if I'm ever incarcerated.

We can't create new institutions to cover every possible variation from one human being to another. Homosexuals are free to be "who they are" and indeed to do whatever they want. It doesn't follow that they have a constitutional right to an institution of marriage that embraces their desires.
11.18.2008 6:27pm
Adam J:
whit- I don't understand your point, other then to analogize two different acts. Are you saying its okay to discriminate in one case because we do it in others? I must have missed that argument in Loving v. Virginia- Talk to us about anti-miscegenation laws when same sex marriage is legal.

Matteo- "Racism is wrong because all have been endowed by their Creator with equal dignity. Sodomy is wrong because it goes against the intentions of this same Creator. The ground of both moral judgments is the same: the intentions of the Creator."

The obvious flaw in your logic is you have no idea what the intentions of the Creator are. Just because its in the Bible doesn't mean its right. If that were the case we would still have slavery, after all its supported by the Bible. Osama has a Fatwa against the United States... simply because it's religously ordained does that make it just? Were the Crusades just because a few Popes called for them? Maybe you should actually use your noggin to determine just what the intentions of the Creator were, rather then let some muckity mucks decide them for you. What makes same sex marriage wrong? Why is two women or two men committing themselves to each other in the bond of marriage immoral?
11.18.2008 6:33pm
whit:

whit- I don't understand your point, other then to analogize two different acts. Are you saying its okay to discriminate in one case because we do it in others? I must have missed that argument in Loving v. Virginia- Talk to us about anti-miscegenation laws when same sex marriage is legal.



i have already addressed this before, but there is NO analogy of any value between anti-miscegenation laws and laws prohibiting SSM.

i support SSM btw.

it is ok, from a LEGAL perspective to "discriminate" against SSM or polygamy, or incestuous marriage, because there is no constitutional right to any of those things.

as a matter of policy, i support SSM. i recognize that laws prohibitng incest etc. (and spare me the genetic argument when we can have same sex incest or incest with sterile people) are just as constitutional as laws prohibiting SSM.

i am all for changing the definition of marriage ot include SSM. i am against inventing a right to it that does not exist
11.18.2008 6:45pm
Yankev (mail):
Okay, let me see if I now have this straight (no pun intended).

Some forms of marriage between a man and woman have been prohibited at one time or another in one society or another.

Some of these prohibitions make sense to us today (e.g. polygamy, consanguinity) and others (e.g. bans on interracial marriage)seem to us today reprehensible .

Not every marriage produces children, or lasts forever, or is mutually emotionally fulfilling. Some are downright abusive and disfunctional.

Therefore there is no moral or legal basis (other than prejudice, narrow mindedness and imposition of one's religion on others) to oppose the legal redefinition of marriage to include same sex unions, despite any historic societal understanding that the term "marriage" included such a relationship, and anyone who cannot see the force of the analogy must be some kind of hate filled ignorant bigot who justifies discrimination against the powerless.

Sorry, I just don't see that argument as being very compelling.
11.18.2008 7:07pm
Adam J:
Yankev - Well... maybe its because you're missing a few steps. If the first three statements are correct (which they obviously are), you should rationally recognize the necessity of an independent basis for opposing same sex marriage other then taboo. Why is it wrong? I don't think anyone who opposes same sex marriage is therefore hate filled (most obviously aren't). I do think it is narrow minded to accept the outlawing of cultural taboos implicitly, since so many cultural taboos have historically been proven wrong/silly/stupid/etc. I'm straight &have absolutely no interest in same-sex relationships, and I find the idea of male-male sex rather repulsive. But just because I don't like something doesn't justify me desiring it to be outlawed... otherwise I would think tattoos, mustard &the various other things I find unpleasant should be outlawed. If the State is going to go about the business of restricting freedom or giving rights to some people but not others, it should have a reason better then "some people don't like it". And I've yet to hear a decent reason...
11.18.2008 7:37pm
Bob Van Burkleo (mail):
no. exactly 100% wrong. marriage is an evolved social institution. it is FAR from natural. men, especially have a biological drive NOT to be monogamous. it is evolutionarily optimal to spread one's seed as wide as possible.

No, 100% wrong. Many mammals mate with specific partners. We can see from cultural stories like Romeo and Juliet and country western tunes that men pair-bond just like women do - the oxytocin-vasopressin mediated mammalian pair bonding response is alive and well in homo sapiens. Median number of sexual partners for straight men - 5, for gay men 7. You are confusing the philandering of the few with the qualities of the majority.

Need more indication? The many same gender marriages that some would like the government pretend don't exist. Remember when I sister was helping me move with a gay couple I knew. She had just learned I was gay and hesitatingly asked "are they... together?' I smilled and said 'Yes for the last 22 years'. Miss-Divorced-After-Six replied with a meek 'Oh'.

Marriage is a natural state that religions artificially encourage, but the basics are as innate as your need to breath.
11.18.2008 8:00pm
whit:

No, 100% wrong. Many mammals mate with specific partners. We can see from cultural stories like Romeo and Juliet and country western tunes that men pair-bond just like women do - the oxytocin-vasopressin mediated mammalian pair bonding response is alive and well in homo sapiens. Median number of sexual partners for straight men - 5, for gay men 7. You are confusing the philandering of the few with the qualities of the majority


we aren't "many mammals". we are homo sapiens, so that is far from compelling.

of course romeo and juliet etc. doesn't dispute what i said either. here's a hint. marriage evolved LONG before romeo and juliet

and you are using your own points against yourself. it doesn't matter what median # of sexual partners for straight men is, because... wait for it... those straight men LIVE WITHIN A SOCIETY WHERE MARRIAGE IS AN EVOLVED INSTITUTION.

i am speaking of natural biological urges, and you are discussing statistics regarding socialized man.

iow, proving your own point wrong, or at least using irrelevant points.

one of the fundamental elements of marriage is that the partners (should ) remain monogamous. that is NOT natural. especially for men, and to some extent for women.

the biological urge, especially among alpha males (who in a state of nature have the advantage of aggression, strength and dominance) is to impregnate AS MANY FEMALES AS POSSIBLE. as we get older, that desire wanes, as do T levels, but let's not forget that living into the 30's and especially the 40's is relatively unnatural too. we didn't evolve to live well into our 70's and 80's. that's a modern phenomenon.

using examples of socialized males who restrain their behavior, largely because we have laws, customs, mores, taboos, religion etc. does not come close to proving your point. if anything, it supports mine.

here's an analogy. most men wear shoes. therefore, wearing shoes is natural. lol

as for your point about SSM's. like i said, i'm FOR SSM's. but i still don't get that point about what two people who were together for 22 years has to do with this.
11.18.2008 8:32pm
Matteo (mail) (www):
Adam J.

Actually, being a Catholic, I do have a very good understanding of what the intention of the Creator is. Curiously, you seem to be asserting that *you* have an understanding of the Creator such that you *know* that the Creator could not have possibly revealed his intentions in any way knowable to us, or did not have the intention to do so (or has no intentions due to non-existence).

Now, why does your understanding of the intention of the Creator trump mine?

The same god-given Catholic Magisterium that teaches against sodomy also teaches against slavery, so that base is covered.

The Catholic Church is also empowered to forgive sins and impart the grace of conversion and change of heart via the Sacrament of Confession. It's a pity that more do not turn to it. Many who assert that they cannot possibly change, and that the way they are is inescapably the way they are would find the power to change there. Assuming, that is, a desire to change.

As far as the Crusades, well that's a multi-faceted topic, and in any case, the argument "The Crusades happened, so let's institutionalize sodomy" just isn't going to be very effective.

As far as using my noggin to discern the intentions of the Creator, please tell me this. What are the specific functions of the human sexual organs? What is the function of the human excretory organs? Are medical problems caused when one is confused with the other? Could any of this--humor me here--just *possibly* have anything to do with the intentions of the Creator? Or am I failing to use my noggin?

In any case, you are effectively asserting that I am duty-bound (intellectually if not morally) to vote and to argue without reference to the Creator. Again I ask, is de facto atheism the privileged position in our Republic?
11.18.2008 9:03pm
Elliot123 (mail):
"Now, why does your understanding of the intention of the Creator trump mine?

The same god-given Catholic Magisterium that teaches against sodomy also teaches against slavery, so that base is covered."


Interesting. So how do we know your magisterium is god given? Does your understanding trump?
11.18.2008 9:14pm
Yankev (mail):
AdamJ, we are not talking about outlawing same sex relationships, though Prop 8 opponents tried to pretend that we are, precisely because it was an easier argument to win. We are not even talking about non-recognition of same sex unions, which California offered before and after Prop 8. We are talking about forcing the state to put same sex unions on the same footing as marriage, and to force everyone, under penalty of law, to say that a same sex union is the same as a marriage.

If the State is going to go about the business of restricting freedom or giving rights to some people but not others, it should have a reason better then "some people don't like it".
As has been pointed out many times, the state is not saying gay people can't marry. They are saying people can marry only those of the opposite sex. And yes, many gay people don't care to do that.

Nor is the state giving male/female couples the "right" to marry. The state is recognizing the marriage of those couples, which is not the same thing.

Refusing to call a same sex union "marriage" is not the legal enforcement of a cultural taboo, it is simply a matter of refusal to redefine a long established term denoting a long established and important social institution, when the only reason to redefine it is to soother the hurt feelings of those who feel excluded by the institution.
11.18.2008 9:18pm
Matteo (mail) (www):
Elliot123,

My understanding does not trump, although to the best of my ability to discern, it is accurate. I do believe in the God-given Magisterium of the Catholic Church for philosophical, historical, and experiential reasons. My understanding is more than sufficient to act as a voter on this issue. And under the Constitution, there is nothing invalid about voting according to this understanding. Just as there is nothing invalid about you voting according to your understanding.

Which is fine, because this is properly a legislative issue concerning the creation of a new institution, not a judicial issue concerning "rights" that do not exist, or concerning a spurious lack of "equal protection".

The only violation of civil rights in this affair will be if judges nullify the rights of voters to amend their own Constitution in order to correct obvious judicial error. Finding the right to SSM in the CA Constitution was no more than an ideological hallucination. It was simple duty on the part of the voters to correct this.
11.18.2008 10:08pm
Bob Van Burkleo (mail):
ne of the fundamental elements of marriage is that the partners (should ) remain monogamous. that is NOT natural. especially for men, and to some extent for women.

So your thesis is that because we live in a 'socialized' environment your opinon is right or at least can't be disproven? Sorry whit, human pairbonding is biologically based, not sociological, we can find the markers, we have ample sociological evidence that natural pair bonding occurs, and it of course is up to you to prove that people are only coupling up out of 'habit' - a daunting task considering all the evidence to the contrary.

Humans pair-bond, marriage derives from that fact not the other way around.
As such if a government is going to license pair-bonds it needs to do so for all reasonable ones entered. Same biological basis, same desires, same benefits, same results.
11.19.2008 12:04am
Randy R. (mail):
LA Denizen: "Backlash going too far:"

Backlash? That incident clearly happened BEFORE the actual vote. Therefore, it was not a backlash.

However, there WAS an incident of real violence here in Washington. Two gay men were celebrating Obama's victory, and were carrying rainbow flags. A small group of Republicans didn't like this, and they physically attacked the two men, landing punches and fairly serious injuries.

But I guess that's okay with you, right Denizen? They deserved it for destroying your marriage.
11.19.2008 1:05am
jrose:
whit: i have already addressed this before, but there is NO analogy of any value between anti-miscegenation laws and laws prohibiting SSM. i support SSM btw.

If the analogy is completely without value, why do you support SSM?

How do you distinguish the unconstitutionality of anti-miscegenation laws from the constitutionality of anti-SSM laws?
11.19.2008 7:55am
Anatid:
Yankev, marriage has not historically always been a partnership of one man and one woman. The Bedouin had marriages of one man to many women, the Inuit had marriages of one woman to two men, the Fore hunters would take first a young male bride and then a female bride later in life, the Athenians allowed a man to marry a woman and take a young male as eromenos as well. All of these arrangements have been considered normal by some culture at a point in time.

whit, humans have very high oxytocin levels. In mammals, the number of oxytocin receptors and overall oxytocin levels directly correlate to levels of promiscuity or fidelity, and humans appear to be no exception. From an evolutionary standpoint, since human offspring are completely helpless, it makes much more sense for a man to pair with a woman and provide protection and resources (at least for the first two or three years) to ensure that his offspring will actually survive. Leaving behind you a long string of starved women and dead babies isn't evolutionarily advantageous. The evolution of pair-bonding in humans happened alongside expanding infant head size, which required earlier births, which meant increasingly helpless children in need of two parents.

John Howard, the majority of gay parents had their child the same way the rest of us do - a man and a woman coupled, or exchanged genetic material, and babies happened. Plenty of single people and plenty of unmarried gay couples have kids all the time (usually lesbians, with a friend or donor supplying semen). How will prohibiting SSM make it any harder for gay couples to have a child, or make it any harder for straight couples to conceive in a lab? Also,

Even if same-sex conception were considered "safe", we shouldn't allow it, precisely because it might even become safer than natural sexual procreation, since it takes place in a lab and involves controlled implantation of tested embryos. If natural conception has to compete with lab-designed genetically engineered conception, it would lose, and that's the big worry.

Why is safe a BAD thing? How is safety, for straights or gays or singles or anyone, a bad thing? I suspect that no matter how safe it gets, people will still be making plenty of babies the normal way. Maybe a higher percentage of planned pregnancies will occur in this safer lab, but the number of unplanned (which doesn't necessarily mean unwanted) won't change. And why does in vitro fertilization somehow require genetic engineering? That's one hell of a slippery slope you've built yourself there.

Matteo, SSM != sodomy. Many straight couples practice sodomy in both directions (why did God make stimulation of the prostate pleasurable?), many gay male couples don't practice anal sex at all, and many if not most gay female couples don't practice anything of the sort. Pretty weak argument there. Although, to be honest, I'm not quite sure where in God's words he says sodomy is wrong. There is the bit in the Pentateuch where he applauds Lot for offering his daughters up for rape so that the crowd doesn't take the angels instead, but I'm not sure that's a good standard of moral behavior. (It is however, you apparently believe, the literal word of God.) Then there are the writings of Paul, not a god but a man, who history suggests may have had conflicts over his own sexual identity in a homophobic culture. Am I missing anything else?
11.19.2008 8:08am
Yankev (mail):

marriage has not historically always been a partnership of one man and one woman. The Bedouin had marriages of one man to many women, the Inuit had marriages of one woman to two men, the Fore hunters would take first a young male bride and then a female bride later in life, the Athenians allowed a man to marry a woman and take a young male as eromenos as well. All of these arrangements have been considered normal by some culture at a point in time.
Antadid, you have illustrated my point, not refuted it. Except as to the Athenians, each of the marriages you mention is between members of different sexes. In the case of the Bedouins, the marriage is between the man and each of his wives; the wives have no marital relation to one another. Early Jewish law, by the way, permits polygamy as well, and creates no legal relationship (e.g. support, inheritance, etc.) among co-wives other than what derives through their husband.

So, all you have done is illustrate my point that different societies have permitted or prohbitied different marital arrangements, but none have recognized a same sex relationship as a "marriage."

Athens, of course, further illustrates my point. The eromenos had no legal status; it was merely a friendship with erotic components. The young mail did not inherit, no ceremony solemnized the relationship and none was necessary to dissolve it.

So, as I have said, even societies that had no stigma against homosexual relationships never considered marriage to be other than a union between a man and a woman. Societies may differ as to how many such unions a man could have at one time (e.g. Islam, pre-10th Century Judaism), what degrees of consanguinity might prohibit or invalidate the union, or even racial restrictions, but in no case that I know of were same sex unions included within the meaning of the term marriage.
11.19.2008 9:10am
Yankev (mail):

Although, to be honest, I'm not quite sure where in God's words he says sodomy is wrong. There is the bit in the Pentateuch where he applauds Lot for offering his daughters up for rape so that the crowd doesn't take the angels instead, but I'm not sure that's a good standard of moral behavior.
It is apparent that you have never given the matter even cursory study. First, the narratives in Genesis, including that of Lot, have no legal status. Second, the Sages condemned Lot's failure to defend his daughers and his offering them to the mob, and note that he was punished for it. See Rashi's comments there.

Finally, in Lev., among the prohibitions against incest and adultery, there is an express prohibition of men having sex with one another, which is condemned by the Hebrew term "toevah" -- a unique term that means abominable, or morally repugnant, and which the Pentateuch usually used in regard to idol worship.
11.19.2008 9:16am
Adam J:
Yankev- We are talking about forcing the state to put same sex unions on the same footing as marriage, and to force everyone, under penalty of law, to say that a same sex union is the same as a marriage.

Obviously the first part of the statement is correct, but please explain how the second part is correct. What penalty is there for you saying you don't agree with same-sex marriage &think its not the same? Last time I checked there was still freedom of speech &of association.
11.19.2008 9:41am
Matteo (mail) (www):
Anatid--

Sodomy is no more legitimate in a marriage than outside of it. But fine, let's remove the term "sodomy". God has forbidden adultery. Which, for a man, means no sex with anyone other than his own (female) wife. Wacking off? Adultery. Premarital sex? Adultery. Sex with a mistress? Adultery. Sex with a dude? Adultery.

Although adultery should not be criminalized (we are not, after all, Taliban barbarians), it certainly shouldn't be enshrined as a societal institution.

Since the Magisterium of the Catholic Church, by the power of God, speaks for God regarding faith and morals, it seems that He has had plenty to say about sodomy.

Moreover, the New Testament is pretty clear on the question. See Romans 1 or 1 Corinthians 6.

Interesting diagnosis on Paul from a 2,000 year distance. He was the apostle to the gentiles, and traveled extensively in Greek speaking areas. It must have been a drag having to move amidst such a "homophobic" culture. Paul was a man, an Apostle, and the writer of God-inspired scripture. That is my carefully-considered understanding, which (quite outrageously!) affects how I consider political/moral questions. And search as I may in the Constitution and the law, I just can't find anything that prohibits me from doing so.
11.19.2008 11:26am
Elliot123 (mail):
"First, the narratives in Genesis, including that of Lot, have no legal status. Second, the Sages condemned Lot's failure to defend his daughers and his offering them to the mob, and note that he was punished for it."

Wasn't Lot considered the just man who was saved from the destruction of the city? The guy who throws his daughters to the salivating pack for their carnal recreation? If God thought he was such an OK guy, who cares what the Sages thought?

"Since the Magisterium of the Catholic Church, by the power of God, speaks for God regarding faith and morals, it seems that He has had plenty to say about sodomy."

The Flying Spaghetti Monster, by the power of god, says the bishops don't speak for god. Only the FSM speaks for god.
11.19.2008 11:39am
Matteo (mail) (www):
Elliot123,

If the FSM seems to you to be the most rational explanation for things, then by all means, make your appeal to the voting public for it and vote accordingly. I'm sure you'll have no problem convincing a good chunk of the 52% to change their mind.
11.19.2008 12:44pm
John Howard (eggandsperm.org) (mail) (www):
Anatid: the majority of gay parents had their child the same way the rest of us do - a man and a woman coupled, or exchanged genetic material, and babies happened. Plenty of single people and plenty of unmarried gay couples have kids all the time (usually lesbians, with a friend or donor supplying semen). How will prohibiting SSM make it any harder for gay couples to have a child, or make it any harder for straight couples to conceive in a lab?

Anatid, I'm talking about actual same-sex conception, as in, they somehow combine their genes by modifying one partner's genome so that it is imprinted as the other sex. Those other ways people have children have nothing to do with marriage, and also wouldn't be effected by a ban on genetic engineering. A ban on genetic engineering is what would prohibit gay couples from having children together with their own genes, not a ban on SSM. It would also ban straight couples from modifying their genes to have designer babies, but would not affect a straight couple's right to have children with their own genes.

Even if same-sex conception were considered "safe", we shouldn't allow it, precisely because it might even become safer than natural sexual procreation, since it takes place in a lab and involves controlled implantation of tested embryos. If natural conception has to compete with lab-designed genetically engineered conception, it would lose, and that's the big worry.


Why is safe a BAD thing? How is safety, for straights or gays or singles or anyone, a bad thing?

It isn't bad in and of itself, we should of course strive for safe healthy pregnancies. But it is not the main thing. The main thing is having a right to have natural children with your own genes.

I suspect that no matter how safe it gets, people will still be making plenty of babies the normal way.

Yes, but many people will feel obligated to eschew their own genes (or reject their partner's genes) and use a lab to have a better, healthier baby, even though it won't really be the couple's baby anymore, but the lab's baby. Of course the shift to GE'd designer babies will happen slowly, and there will always be natural pregnancies, but that doesn't make it OK to allow genetic engineering. We need a law to stop genetic engineering and preserve natural conception rights.

Maybe a higher percentage of planned pregnancies will occur in this safer lab, but the number of unplanned (which doesn't necessarily mean unwanted) won't change.

Why do we want a higher percentage of pregnancies to take place in a lab? It's very expensive, it diverts resources from real medicine, and it changes the way we think of children, from our children that we created and which be welcome as miracles however they are, into products we ordered from a lab with Consumer Reports ratings and guarantees. That's bad.

And why does in vitro fertilization somehow require genetic engineering? That's one hell of a slippery slope you've built yourself there.

Did I say that? GE certainly requires IVF, but not the other way around.
11.19.2008 12:48pm
John D (mail):
There's some loose usage here of the terms adultery and sodomy.

Adultery is not, as Matteo put it, "sex with anyone other than his own (female) wife."

If neither person is married, no one is committing adultery. "Sex with a dude" is not, necessarily, adultery. It's only adultery if of of the two is married.

With the exception of masturbation, the appropriate word is "fornication." (My, this sounds terribly old fashioned.) A couple of unmarried people who have sex when they are married to no one are fornicating, not committing adultery. It's only adultery if one (or more) of them are married.

Sodomy is any paired sexual act other than inserting a penis into a vagina. (Why do gay men have to explain this to people?)

I was amused during the Monica Lewinsky scandal at a letter in a newspaper which complained about all the attention being paid to a sodomite. The letter writer was right: Miss Lewinsky is a sodomite. (Welcome to the club, Monica.)

Oral sex, anal sex, and many other activities I could name are reportedly very popular among heterosexuals, or as I like to think of them in this light, sodomites.

Those supposedly disgusting acts that gay men do are quite popular with heterosexuals (the naughty things). The indignation seems a little fake.
11.19.2008 12:51pm
Yankev (mail):
Elliott123

Wasn't Lot considered the just man who was saved from the destruction of the city?
(A) Not according to Jewish tradition, which believes that he was a bum who was saved in the merit of Abraham, and in repayment for certain kindnesses that he had done for Abraham.


The guy who throws his daughters to the salivating pack for their carnal recreation?
(B) This is one of several reasons that Jewish tradition considers him a bum.


If God thought he was such an OK guy, who cares what the Sages thought?
If you can even ask that question, it is clear that you know nothing of the Jewish religion. The short answer is that (C) the Sages studied this issue, and all of scripture, in depth, in order to determine what G-d thought. Their conclusions about what G-d thought are considerably more relaible than yours, given that they relied on careful and prolonged study of the original sources rather than a snarky cursory skimming of a thuird hand translation into English, and their sources (of which you lack the least knowledge) include the oral tradition that they received from their teachers who receivecd it from theirs, all the way back to Moses, who received it from G-d, and which Orthodox Judaism believes to authorative.

You don't have to believe any of this, but in order to avoid grossly ignorant questions about Jewish belief, you need to know that the Jewish religion believes (C).
11.19.2008 1:06pm
Elliot123 (mail):
"If you can even ask that question, it is clear that you know nothing of the Jewish religion."

Of course I don't. That's why I provide an opportnity for snarky Jews to explain it.

"Their conclusions about what G-d thought are considerably more relaible than yours, given that they relied on careful and prolonged study of the original sources rather than a snarky cursory skimming of a thuird hand translation into English, and their sources (of which you lack the least knowledge) include the oral tradition that they received from their teachers who receivecd it from theirs, all the way back to Moses, who received it from G-d, and which Orthodox Judaism believes to authorative."

That's an interesting hypothesis. How has it been tested?

So, did god save Lot from the destructin of the city because he was a just man? Or was it just an award for Father Of The Year?
11.19.2008 1:40pm
Matteo (mail) (www):
John D--

I was speaking of "Adultery" as defined by God in the Ten Commandments, not the modern more restricted use of the term. If God intends sex to take place in heterosexual marriage, then anything else is an adulterated form, whether you call it fornication, hooking up, SSM, or last Friday night.

To reemerge from this long tangent, the argument equating SSM to interracial marriage is spurious, according to fairly widespread (and, for the time being, still constitutionally protected) religious viewpoints. I'm not saying the case shouldn't be offered, but I am saying that it only seems cut-and-dried under particular theological (or antitheological) assumptions. Since I (and millions of others) don't hold those assumptions, then merely repeating the argument louder (either on the internet or with proverbial torches at the doors of churches) is not going to have much effect on us.

Here's an empirical data point: the actual past victims of anti-miscegenation laws certainly aren't buying the interracial marriage/SSM equivalency argument, as witnessed by the Yes on 8 demographics.
11.19.2008 1:43pm
John Howard (eggandsperm.org) (mail) (www):
Actualy John D, the NH Supreme Court ruled that a wife having a lesbian affair was not committing adultery, because adultery requires sexual intercourse. Here are some stories on that story.
11.19.2008 2:26pm
Yankev (mail):
Elliott123

So, did god save Lot from the destructin of the city because he was a just man? Or was it just an award for Father Of The Year?
Neither of the above (at least in the Jewish view), as you would know if you had read my post. Can you point to anything in the text (other than the fact that Lot was saved) to support either reason? If not, can you point to any midrashic or aggadaic source? I know of none that would support either theses, but then I am not well versed in the sources.

Matteo, apparently the Church has a different understanding of the 10 commandments than does Judaism, but then that's one of the things that makes America great. In Jewish law, the Hebrew term usually translated as "adultery" comprises sexual intercourse (natural or otherwise) between a married woman and a man other than her husband, or between two people who are ineligble to marry due to consanguinity. I hasten to add that this is an oversimplified explanation.

We do agree as to the Divine intent that sex be limited to marriage, and that marriage be heterosexual.
11.19.2008 2:45pm
Elliot123 (mail):
"Can you point to anything in the text (other than the fact that Lot was saved) to support either reason?"

I'd say being saved from the fire and brimstone roasting all the neighbors can stand by itself as a pretty nice reward. God casts about for a just man, and voila, there's good old Lot giving the heave-ho to the girls. Probably cut down on the damn dowry expense, too. "My daughters... they are virgins, you know...please, please I insist, take them... no, no, you must take the fat one,too...ha ha... two for the price of one!"
11.19.2008 3:09pm
Adam J:
Matteo- You seem to think that organized religions have a lock on determining what God thinks is sinful. As I pointed out before is organized religions are quite unreliable in this regard (see e.g. slavery, miscegenation, crusades, inquisition, jihads &various fatwa, etc. etc.) If you can't find a reason that same sex marriage is sinful other then religion told me so you just don't have a good argument.
11.19.2008 3:19pm
Harry L. (mail):
Matteo: your comments here are some of the most reasonable I've read on the topic. Do you write about it elsewhere?
Thanks,
Harry
11.19.2008 3:24pm
Tritium (mail):
I can't help but wonder how many people in this country would form an idiosyncratic Government. Well, that wasn't the intention, but here we are. Religious beliefs, bias, and punishments should have no place in a document that establishes the Government. Keep in mind the reasons why the Pilgrims relocated to America. It was because they wanted to have a strict religious community without being persecuted against for their beliefs in a stronger belief system.

Equal protection under the laws requires that all laws passed under a Government established by the People, must pass laws that have an equal affect on all people under the jurisdiction of that government. If any law should be passed contrary to this requirement, it would be considered a Title of nobility/entitlement.

Marriage is an act that historically was just another word for trade. Merchants were the ones engaged in the service of Marriage. So basically, the tradition for all those wishing to preserve it, amounts to slavery for purposes of procreation. Women became a vessel in this arrangement, and the contract to marriage obligated her for life to remain with her mate.

If you want to preserve marriage, and the sanctity of it, perhaps we should restore the true contract of marriage and to the death if you part. Talk about hypocrisy. Perhaps if we did make breaking vows punishable by death (as the contract of marriage includes, so should be binding on both) then people could start being taken at their word once again.

Marriage: 1297, from O.Fr. mariage (12c.), from V.L. *maritaticum, from L. maritatus, pp. of maritatre "to wed, marry, give in marriage"

merism: "synecdoche in which totality is expressed by contrasting parts" (e.g. high and low, young and old), 1894, from Mod.L. merismus, from Gk. merismos "dividing, partition," from merizein "to divide," from meros "part."

merit (n.): c.1300, from O.Fr. merite, from L. meritum "desert, reward, merit," neut. of meritus, pp. of merere, meriri "to earn, deserve, acquire, gain," from PIE base *(s)mer- "to allot, assign" (cf. Gk. meros "part, lot," moira "share, fate," moros "fate, destiny, doom," Hittite mark "to divide" a sacrifice). The verb meaning "to be entitled to" is from 1526. L. meritare, freq. of mereri, meant "to earn (money), to serve as a soldier." Merit-monger was in common use 16c.-17c. in a sense roughly of "do-gooder." Meritocracy coined 1958 by Michael Young and used in title of his book, "The Rise of the Meritocracy."

meritorious: 1432, from L. meritorius "that for which money is paid, that by which money is earned," from meritus, pp. of merere (see merit (n.)).

Merlin: sorcerer and soothsayer in Arthurian legends, from O.Fr. form of Welsh Myrddhin, probably from O.Celt. *Mori-dunon, lit. "of the sea-hill," from *mori "sea" + dunom "hill."
11.19.2008 3:53pm
Tritium (mail):
One more thing.. Ancient text including that found in either old or new testaments, were written in a time when the word "man" referred to both genders indiscriminately. The gender attributes didn't come about until after the 12 or 13th century I believe.

So any reference in your bible to "man" was either added much later than the original writings, or, intended to be inclusive to mankind.
11.19.2008 4:00pm
John Howard (eggandsperm.org) (mail) (www):
mankind shouldn't lie with mankind, it is an abomination? Well, wait a sec, wouldn't that be kind of like masterbating, since mankind includes everyone? And the bed would have to be huge, I'd hate to be the guy in the middle when I need to go to the bathroom.
11.19.2008 4:13pm
Yankev (mail):

I'd say being saved from the fire and brimstone roasting all the neighbors can stand by itself as a pretty nice reward.
In other words, as I suspected, you are relying on your own gut feeling based on superficial reading of a third hand translation from the original semitic language text into Greek (a language that follows a vastly different structure and logic) and from there into English (closer in logic to the Greek), without bothering to consult the thoughts of those who spent their life's work studying in depth, and without consulting any of the sources they consulted.

Don't expect anyone who takes these texts seriously to take your conclusion seriously.
11.19.2008 4:19pm
Yankev (mail):

Ancient text including that found in either old or new testaments, were written in a time when the word "man" referred to both genders indiscriminately. The gender attributes didn't come about until after the 12 or 13th century I believe.
Sorry to contradict your assumption, but Biblical Hebrew, like modern Hebrew, has masculine and feminine genders and no neuter. Like English (at least, like English until fairly recently), use of the masculine gender can denote either an exclusively masculine group or a mixed group of masculine and feminine, but feminine gender always denotes feminine only.

The verse in question [Vayikra, or Lev., 18:22]reads "Es zachor lo tishcav mishikvei isha toaevah he", which means, in English syntax (as translated by The Living Torah, R. A. Kaplan), "Do not lie with a male as you would with a woman, since this is a disgusting perversion." "Zachor" means male and is never used for a mixed group of males and females. "Ish", which can mean either man or human, is not used in this particular verse. "Ishah" means a human female. Nekevah (not used in this verse) means female or feminine.
11.19.2008 4:33pm
Matteo (mail) (www):
Adam J--

I didn't say anything about "organized religion". I was talking about the Catholic Church.

Of course, I don't need to have what you would recognize as a good reason. I just need a vote.
11.19.2008 5:04pm
Matteo (mail) (www):
Harry L--

I haven't done any intensive writing on the topic, but do highlight on my blog whatever good writing about it that I run across (including from comment sections). The blog is reachable via the www link at the top of my posts here.
11.19.2008 5:09pm
Elliot123 (mail):
"Don't expect anyone who takes these texts seriously to take your conclusion seriously."

I bet Lot's daughters took it seriously when the old man leered at the crowd, hiked up their skirts, and hawked their innocence. God's just man, saved from the fire and brimstone because he was such a great guy. What kind of people need a bunch of sages to help them make up their minds about that?

Or maybe the girls just giggled, "Oh never mind, Daddy's just being Daddy. You know how he gets."
11.19.2008 5:17pm
Yankev (mail):

God's just man,
Says you, based on your inferences from a sarcastic, superficial and results oriented reading of the text. You haven't shown me anyplace that the text says he was righteous.


What kind of people need a bunch of sages to help them make up their minds about that?
People who take it seriously, believe that it came from G-d, and that G-d used it to reveal how He expects them to conduct their lives, and who realize that they have limited time and expertise.

Just like people who want to be physically healthy will rely on doctors who tell them "If you drink unboiled untreated water from a puddle, you can get sick because the water contains micro-organisms." Or would you say that dogs drink it without getting sick so it must be safe, and besides you looked at the water and didn't notice anything floating in it. Who needs a microscope? Who needs to know what micro organisms look like under a microscope? Who needs to know which micro organisms are bad for you?

Believe it or not, to some people this stuff that you treat as a joke is every bit as serious as bacteria.
11.19.2008 5:54pm
Elliot123 (mail):
"Believe it or not, to some people this stuff that you treat as a joke is every bit as serious as bacteria."

I don't doubt they are infected. The healthy folks don't need to consult anyone. God's just man dangles his daughters for the ogling lechers, then gets immunity while evertone else gets the hot foot. What a guy. The only thing sages are needed for is to muddy the waters for the infected.
11.19.2008 6:47pm
Yankev (mail):

God's just man dangles his daughters for the ogling lechers, then gets immunity while evertone else gets the hot foot. What a guy. The only thing sages are needed for is to muddy the waters for the infected.
I've already told you that in my religion, at least, he is viewed as a bum, not as "G-d's just man." Perhaps that's how you see him, but you need to blame yourself -- not G-d and not religion -- for that one.

You're free to ridicule what I believe, and you're even free to deliberately distort what I believe and then ridicule your own silly distorsion. You're equally free to pretend that you are ridiculing my beliefs rather than your own distortions. This is America, and I wouldn't have it any other way. You can do the same to just about anything when you take bits and pieces out of context.

But if you expect me to join in the distortion, forget it. No more than I will join in the distortion that the term marriage includes or has included same sex unions.
11.19.2008 7:18pm
Elliot123 (mail):
"I've already told you that in my religion, at least, he is viewed as a bum, not as "G-d's just man."

Apparently God disagrees with your religion. He rewarded Lot by not dry roasting him like everybody else.

"This is America, and I wouldn't have it any other way. You can do the same to just about anything when you take bits and pieces out of context."

Lot threw the girls to the wolves and got a get out of jail free card. What a guy. Man of the year. PTA president. Little league coach. Devoted father. The sages might not like him much, but he sure had a friend in high places when the acid rain start to fall. Nobody else did. Perhaps God failed to consult the sages?

"This is America, and I wouldn't have it any other way."

Ain't this a great country?
11.19.2008 10:06pm
Tritium (mail):

The verse in question [Vayikra, or Lev., 18:22]reads "Es zachor lo tishcav mishikvei isha toaevah he", which means, in English syntax (as translated by The Living Torah, R. A. Kaplan), "Do not lie with a male as you would with a woman, since this is a disgusting perversion."

"Zachor" means male and is never used for a mixed group of males and females. "Ish", which can mean either man or human, is not used in this particular verse. "Ishah" means a human female. Nekevah (not used in this verse) means female or feminine.


Actually, if you want to get technical... Zachor would actually translate more properly to the masculine of a word equivalent to 'rough'.

Ish actually refers to something similar, but not exactly. So Ishah would refer to family member from my text, therefore, without investigating further, this part of the text appears to forbit incest. For that is a disgusting perversion.

Thank you for playing.
11.19.2008 10:30pm
Tritium (mail):
And again, if the only argument for being against gay marriage is what is mentioned in the Bible, then I ask you:

What place does your bible or torah belong in any Government Institution determining law?

While I believe the text of every major religion in existance contains information that is useful, but more so for what is to come, rather than petty self interests, I do not believe religion has any place in determining what a person can or can't do. Nor does any law. In a perfect and Justice bound government, the true nature of law respects an individual's personal freedom. Where a person risks losing that freedom should only be when his actions result in affecting the rights of another.

If religion means "belief in a god" then that is all you can define as religious. Marriage is not religious. If you are to say that Marriage is religious, then it has no place in a document that establishes a state government. (Anything contrary to a constitution would in essence re-establish a new government. If the purpose of an amendment is to clarify, nothing changes, thus would not lead to disbanding the state, and reestablishment of that state.
11.19.2008 10:40pm
Tritium (mail):
I am saddened more and more by the comments in this post. If I were the God I believe exists, then I would truly be disappointed that my children cannot get along.

That being said, let's look at it from that context. Let's do this in order to better understand how each of our relationships are to each other.

If God is only one, we cannot assign gender, for there doesn't seem to be gender involved. So can anyone imagine growing up not knowing there is a difference between male and female? I assume male is the proverbial rib, since it exists in both textual representations of each. Perhaps this refers to the X chromosome. And taking the X chromosome and doubling it, you have woman. This is confusing to say the least, cause when man passes off the "Y" chromosome, he isn't doing an act of God, but if he passes off the "X" Chromosome... he is doing what God Did.

That's how woman was born... crazy enough... it was said that Jesus' mom was the virgin birth, which makes more sense in what I previously mentioned. Does that mean by having female children, you are doing an act of God?

Translations are a funny thing, perceptions can easily be skewed by unintelligent people. To say that this is absurd from a jewish perspective would imply that the intelligence of the Jewish people was very low throughout history. That being the case, then how could you assert true force with what is contained in your sacred book? If you were to agree that there was an intelligence that is uncommonly known, then to dispute what I just stated would only put force into the same book that asserts that Israel is the destroyer of nations, and received blessings from God himself to destroy thy neighbor.

But getting back to my original thought... parents wish their children the best. And if you raise your kids properly, you don't need to tell them that you are almighty. It should be self evident. If however you use guilt trips to get attention in order to feel better about yourself, then perhaps it puts a realization on how a viewpoint so discriminatory could enter into a bible.

Personally, there being no record of any gay surviving people after the holocaust would lead me to believe that perhaps controlling how people live their lives, or name something that is sacred only to the individuals involved should be the everlasting covenant. To protect rather than to destroy. I would rather die fighting for equality, than fighting for a right to skew your beliefs.
11.19.2008 11:05pm
Tritium (mail):
I just had an epiphany, what if the intention of the word religion was not our current definition, but they were opposed to respecting an establishment of old law?

If Congress was denied the power of passing legislation that respected the establishment of laws of antiquity, this would definitely make the greatest sense to me. Especially so when we talk about the Jewish Law, which is their bible. And the parts of the word, re- (back, again) and -lig-/-leg- (law) -ion (age), support my interpretation, as well as previous interpretations.

Does nothing against, mean everything for? that can be too complex of an answer, however, does put forth a debate that someone might find worth posting as a separate question.
11.20.2008 12:42am
Yankev (mail):

I am saddened more and more by the comments in this post.

I share your sadness and am withdrawing from the discussion.

To say that this is absurd from a jewish perspective would imply that the intelligence of the Jewish people was very low throughout history.
11.20.2008 9:16am
Yankev (mail):
Sorry, clicked "post" by mistake. Meant to post the following:

I am saddened more and more by the comments in this post.
I share your sadness and am withdrawing from the discussion.


To say that this is absurd from a jewish perspective would imply that the intelligence of the Jewish people was very low throughout history.
I don't think I used the word "absurd" to refer to anything except the inaptness of the comparison between banning interracial marriage and adhering to the understood meaning of marriage as being between sexes rather than two people of the same sex. I know I did not say the comparison was absurd from a Jewish perspective.

I did say that Ellito123's views of Lot as a good man in the eyes of G-d are not shared by the people to whom the Bible was given in whose language it is given, whose family abd national history is recounted there, and who have devoted lifetimes of in depth study to the topic. Elliot123 chose to respond with ridicule, which is his privilege, and by saying dismissively that the views of the people to whom the Bible was given are irrelevant and mistaken, as "proven" by his gut feeling after his cursory reading of a bad translation. It is not the first time I have heard this argument, although I have heard it more often from people proffering missionary tracts.

In any event, Lot is largely irrelevant to the discussion. Like most people who consider religion to be for simple minded idiots, Elliot123 will deny that there his anything beyond his own simplistic and superficial reading, and I see no reason to waste any more time in trying to have a serious discussion with someone who is simply amusing himself by repeating silly banter.
11.20.2008 9:30am
Elliot123 (mail):
"Elliot123 chose to respond with ridicule, which is his privilege, and by saying dismissively that the views of the people to whom the Bible was given are irrelevant and mistaken, as "proven" by his gut feeling after his cursory reading of a bad translation."

Well, I confess. I really don't give a hoot what Jews think about Lot and God. But I do notice God rewarded the guy who pimped his two daughters to the drooling louts in the driveway. Then God gives him a free pass, lets him walk away while his fellows become cinders. God's chosen! What a guy!
11.20.2008 2:14pm