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DOMA challenged today in Massachusetts federal court:

Gay & Lesbian Advocates & Defenders (GLAD) has filed a challenge to the federal definition of marriage codified in Section 3 of the Defense of Marriage Act, which prevents the federal government from treating gay couples married under state law as married under federal law. (GLAD is the group that brought the successful challenge to Massachusetts' marriage law.)

The 92-page Complaint is available here. It claims that the plaintiffs, married under state law, were denied federal benefits that would have been available to them if they were opposite-sex married couples. The underlying constitutional claim is that Section 3 violates the equal protection principles applicable to the federal government through the Fifth Amendment. The group has more about the suit here.

(Thanks to Chris Geidner for the pointer.)

Splunge:
Go, GLAD! Just when people are well distracted by their plummeting 401k's from their annoyance at having gay marriage shoved up their penumbras by the same type of brilliant thinkers that brought us Dred Scott and Kelo -- why, it must be time to provoke another Prop 8 debacle! Maybe this time it'll turn out different!

Is it a requirement to belong to these organizations that you be utterly incapable of learning even when hit on the head by an anvil?
3.3.2009 10:19pm
Sarcastro (www):
Gays hould employ Splunge's philosophy. No one ever gained Civil Rights through persistence!
3.3.2009 10:51pm
J. Aldridge:
The underlying constitutional claim is that Section 3 violates the equal protection principles applicable to the federal government through the Fifth Amendment.

Yep, that is where the "equal protection of the laws" derives from, but these laws of due process, or law of the land, only speak of checks against arbitrary executions, imprisonment or arbitrary confiscations of estate (echeats).
3.3.2009 11:03pm
Soronel Haetir (mail):
This seems like the same sort of case that the NRA saw Heller as at the early stages. Are these folks betting that by the time this case goes anywhere that SCOTUS will have a substantially different makeup?
3.3.2009 11:12pm
Tom G (mail):
This challenge deals only with Section 3, the most ridiculous part of DOMA, which prohibits the federal government from recognizing valid, state-sanctioned SSMs for taxation and inheritance purposes. This law is clearly a violation of the right of the several states to define marriage as they wish.

And fyi, Splurge, GLAD actually has a stunning succes record: they won the fight to create Civil Unions in Vermont and SSM in Mass. They have played a huge role in succesfully pushing the entire Northeast region towards equality.

They're goal is to have marriage legal throughout New England by '12. I think 3 years is a little pollyannaish, but definately in 5-7 years.
3.3.2009 11:13pm
cognitis:
Marriage between homosexuals abuses the law and perverts the marriage institution; the institution's origin lied in raising children, and it's privileges support families and children. Homosexuals' petitioning for pecuniary benefits further degrades the unique and sacred marriage institution by animadverting on the family as a social welfare unit and diverts from the family and persons as a sacred matter beyond daily living. Homosexuals' concupiscence for the destruction of the marriage institution is exacted by their envy of those who have children and a legacy.
3.3.2009 11:27pm
Yuiop:
cognitis,

Really, gays have a sexual lust for the destruction of marriage? Maybe they just want to be married.
3.3.2009 11:36pm
Strict:
I think Splunge is onto something. Maybe The Gay is like amnesia, and a good hit on the head is the cure.

Plus, when will the gays stop animadverting on our precious families? Because of their perverted concupiscence, my family is falling apart. In fact, my wife won't have sex with me anymore. Do you think she caught The Gay?
3.3.2009 11:39pm
ReaderY:
Two problems. First, the federal government give same-sex-preference employers unequal benefits. It forbids them from participating government contracts, subjects them to "civil rights" lawsuits, etc. The Supreme Court upheld the constitutionality of this unequal treatment under a rational basis standard. Under a rational basis standard, the only reason to treat sexual preference in domestic matters differently from sexual preference in vocational matters is that one is typically state and the other typically federal.

Second, the Supreme Court recently held that states (and congress) have a compelling interest in insuring that youth are educated in a gender-diverse environment. There is no reason to believe that this interest is any less compelling in younger children than in college-age children. We've all heard Ward Connerly declare the idea of a state interest in gender diversity to be bigotry and whatnot. And doubtless Ward Connerly sincerely believes that the only reason a state could have for wanting a gender-diverse educational environment for youth is bigotry. But saying it's so doesn't make it so.

One has to remember that Southerners firmly and sincerely believed that there was no rational reason whatsoever to object to segregation other than animosity toward Southerners and their lifestyle. People who firmly want something and have a set way of thinking have a way of thinking those who disagree with them unreasonable. I think our experience with segregation and its defenders should cause hesitation about similar claims that the only reason people object to what one wants to do is animosity. Saying so doesn't make it so.

Finally, I think those who prefer to work with others of the same sex -- who may be unable to be productive or fully contributing members of society otherwise -- have the same rights, certainly under a rational basis standard -- as those who want to sleep with others. Judges should be careful about applying their own moral ends, seeing those who want to work with others of the same sex as hate perps while seeing those who want to sleep with others as victims. There's no reason to believe that either kind of people behave as they do because they hate the opposite gender or want to see them economically or socially disadvantaged.

I think the analogy goes deeper. I honestly don't think there is any reason to believe that permitting a small number of same-gender employers would destroy the institution of mixed-gender employment. We have memories of days when society as a whole had a rigid industrial caste system and enacted strict and perhaps harsh anti-preference laws to break that system. The difficulty is there were eras in history when society as a whole had a domestic caste system

Hand in hand with Plato's Symposium and his idea that love for that which one doesn't use is preferable to love for that which one uses was the unshakeable fact that women of his milieu were used, and badly used, either as housebound wives or as prostitutes. The requirement that recreational and procreational sex go together helped ameliorate, if not break, an era of what was essentially domestic enslavement -- women were worse-used in classical Athens than in other ancient societies, and the institution of monogamous heterosexual marriage helped break some of the worst features of that ill-use.

Are we far enough away from that period that we can simply ignore its history?

500 years from now our descendents may be telling stories about a bigot named Martin Luther King Jr. who helped initiate an infamous set of harsh and cruel laws which prevented a small, peace-loving subset of the population from participating in economic life on the same footing as everyone else. Perhaps our descendents will be so removed from the circumstances that resulted in these laws, will forget or distort the history, will be so unable even to imagine the circumstances which gave rise to such a peculiar and unhealthy set of phobias, that they will readily believe there couldn't be any possible reason for such laws except hate.

And they may, in their own way, be right. Perhaps there may be an era when society moves far enough beyond the segregation regime that the right thing to do would be to relax the strict no-same-sex-employment laws and permit a relatively small number of people who need such things to come in out of the closet and live like everybody else. Perhaps it will become evident such permission wouldn't spread to society as a whole, or result in a re-casting of society or create fundamental hurt for everyone.

But we don't know this for sure. We don't know what the future will be. It may not prove to be the case. There are some things that tend to take over the whole system unless checked by a complete ban. When prophylactics work they prevent whole forms of social organization from coming into being such that laws' very success may make them seem irrelevant. This could be one of them. History, and time, move in only one direction. We can't perform an experiment repeating our society to see how it might have evolved with different choices. This limits our ability to be certain.

Democracy permits the people to make their own mistakes in the face of uncertainty. Everyone feels certain about matters they feel emotionally attached to. Everyone tends to feel certainty that they are right about certain things, and to believe that only an irrational person could disagree. Judges are no exception. There is such temptation to simply impose ones will.
3.3.2009 11:44pm
http://volokh.com/?exclude=davidb:

Marriage between homosexuals abuses the law and perverts the marriage institution

No worse than my heterosexual marriage (and subsequent divorce) did, I assure you.
3.3.2009 11:48pm
BABH:
cognitis: Lots of gay families raise children, whether their own or adopted. Children in same-sex headed households have been systematically studied for over 30 years now, and it's pretty clear that gay and lesbian parents are every bit as good as straight parents (see <a rel="nofollow" href="http://www.apa.org/pi/parent.html">here</a>).

Or perhaps your incoherent rant was tongue-in-cheek?
3.4.2009 12:12am
Some Dude:
Just so everyone knows; this would challenge the equal protection of couples, which is new. The argument is that one couple has to be as equally protected as another couple.

Because gays are already equally protected as individuals. According to the Federal government, no man can marry another man. Equal protection. Not singling anyone out.
3.4.2009 12:19am
Scape:
No, Some Dude. It's not. As has been explained uncountable times before.

You have the right to marry a woman. But /I/ don't have the right to marry her? That's individual gender discrimination anyway you cut it. Not "couple discrimination."
3.4.2009 12:41am
John Moore (www):
You have the privilege of having the government recognize your marriage to a member of the opposite sex, just like everyone else does.

Get it?
3.4.2009 12:46am
Strict:
Keith gets legally married under the laws of MA to another man. He took his husband's name. MA issues him a new license with his new name. Keith then applies for a new passport, and the passport service refuses to put his new legal name on it, because it's all gayed up and not the name he was born with. Women change their names when they get married, not men!

So now, if Keith wants to travel, he has a lot of problems. The name on his boarding pass - his real, legal name - won't match the name on his passport. At hotels, the name on his credit cards won't match the name on his passport. At border checks, he risks refusal of entry, unnecessary detention, arrest, and deportation. All because the passport service thinks his new legal name is tainted by gayness, and they won't acknowledge that it's his actual name.

And if they did - well, that would be the end of family as we know it. I'd have to say sayonara to my brothers and sisters because the gays killed family. :(
3.4.2009 12:52am
Scape:
Two ways of saying the same thing, JM, but my way is at least more concerned with individual liberty. Look, the argument against Loving was that everyone had the right to marry their own race -- and although the constitutional issues between race and gender are different, as a matter of argument formation it's as equally lacking as is the "you can marry the opposite gender just like everyone else" bromide.
3.4.2009 12:53am
Strict:
Where is the anger about federal thugs not respecting states' rights? In fact, one of the defendant thugs in this case is Hillary Clinton!

If respect for state sovereignty and hate for Hillary can't unite the conservatives to support GLAD here, what can?
3.4.2009 1:04am
Adam J:
Scape- sure, and separate but equal is really equal, and preventing interracial marriage applies equally to all races, so that's equal too.
3.4.2009 1:17am
Strict:
Slavery is equality too, because everyone was allowed to own slaves! [Even others blacks could own slaves.]

Guys, if the passport service starts respecting a gay-related name change that is perfectly legal under a state's regime, then families are done for. RIP Thanksgiving.
3.4.2009 1:26am
David M. Nieporent (www):
Keith gets legally married under the laws of MA to another man. He took his husband's name. MA issues him a new license with his new name. Keith then applies for a new passport, and the passport service refuses to put his new legal name on it, because it's all gayed up and not the name he was born with. Women change their names when they get married, not men!
Very amusing, but of course the premise is false. The "passport service" will put Count Chocula on your passport if you want.
3.4.2009 1:30am
Cornellian (mail):
I think cognitis thinks people here will be really impressed by his use of a thesaurus.
3.4.2009 1:33am
cmr:
This challenge deals only with Section 3, the most ridiculous part of DOMA, which prohibits the federal government from recognizing valid, state-sanctioned SSMs for taxation and inheritance purposes. This law is clearly a violation of the right of the several states to define marriage as they wish.


How is it a violation of "several states" (all two of them) if the federal government doesn't have to recognize SSMs for their tax purposes? They haven't stopped any state from recognizing same-sex marriages.

Two ways of saying the same thing, JM, but my way is at least more concerned with individual liberty. Look, the argument against Loving was that everyone had the right to marry their own race -- and although the constitutional issues between race and gender are different, as a matter of argument formation it's as equally lacking as is the "you can marry the opposite gender just like everyone else" bromide.


Who made this argument against Loving? It was a unanimous decision by the SCOTUS.

The justification for anti-miscegenation laws were that because they punished both participants of interracial coupling (because they didn't always just preclude marriage) equally, it wasn't a breach of the Equal Protection Clause.

The differences here are (1) DOMA doesn't criminalize unions that aren't monogamous and heterosexual, (2) the function right to marry isn't the same, and isn't threatened, by parsing the benefits of marriage to a group that fulfill little, if any, of the purpose of those benefits in the first place (meaning, we have marital benefits to allow people to care for their children, keep them together to care for their children and, to a lesser extent, normalize heterosexuality for the sake of future generations), (3) like someone said above, the 5A isn't referring to regulating federal subsidies.

I'd also like to point out that Splunge's point is correct: with the country's attention being on our ailing economy, is this really the time, politically, to bring this issue up again? Too much ambition be a bad thing. Well, if you could call this...that. It seems more like narcissism and political rapaciousness of the same variety socons have been warning about since MA first legalized SSM. Of course, SSM supporters will coincidentally NOT see the pattern.
3.4.2009 1:33am
BooBerry (mail):
This lawsuit is a slam dunk. As Andrew Koppelman noted on Balkinization:

The complaint in the suit claims that the statute “is motivated by disapproval of gay men and lesbians and their relationships, an illegitimate state interest.” It’s clear from the language that the attorneys are relying principally on two Supreme Court precedents, Department of Agriculture v. Moreno (1973) and Romer v. Evans (1996). Those cases, together, show that DOMA can’t withstand constitutional scrutiny. (Two Federal Court of Appeals judges have recently arrived at a similar analysis.)

On a larger point, however, I find it beyond incredible that the anti-same-sex marriage crowd persists in its efforts to deny same-sex couples the right to marry. Gay marriage has been legal in Massachusetts for over five years now. If anyone can enlighten me how this legalization has resulted in any adverse effects on heterosexual marriage, on society or on families generally, I'd love to hear it.

One may think that the reactionary conservative bigots who oppose same-sex marriage would rethink their position once five years of evidence has demonstrated that same-sex marriage is a threat to no one, and to nothing. Oh well. Like with civil rights and women's rights, history will redeem those of us who believe in equal rights for gays. And conservatives will again be tarnished as the reactionary bigots they are and will likely always be.
3.4.2009 1:35am
Randy R. (mail):
"You have the privilege of having the government recognize your marriage to a member of the opposite sex, just like everyone else does.

Get it?"

Sure do! But here's the problem -- you are denied the right to marry a man just like I am. Therefore, you should be just as outraged as I am that you cannot exersice this right.

Get it?
3.4.2009 1:37am
Michael Ejercito (mail) (www):


You have the right to marry a woman. But /I/ don't have the right to marry her? That's individual gender discrimination anyway you cut it. Not "couple discrimination."

Gender discrimination does not violate the fourteenth amendment.

If it did , explain why the nineteenth was necessary to guarantee women the privilege of voting.
3.4.2009 1:38am
Strict:

Keith gets legally married under the laws of MA to another man. He took his husband's name. MA issues him a new license with his new name. Keith then applies for a new passport, and the passport service refuses to put his new legal name on it, because it's all gayed up and not the name he was born with. Women change their names when they get married, not men!

Very amusing, but of course the premise is false. The "passport service" will put Count Chocula on your passport if you want.


David M,

Huh?

From the complaint:

Invoking DOMA, 1 U.S.C. § 7, the State Department denied plaintiff Keith Toney’s request for a passport in his married name despite submission of his marriage certificate and other government-issued identification, although it accepts name changes effectuated through marriage for a person married to an individual of a different sex who submits the same documentation.


By "the premise is false," do you mean to say that Keith is lying about what happened? I really don't know what you're getting at.
3.4.2009 1:40am
Randy R. (mail):
cmr: "I'd also like to point out that Splunge's point is correct: with the country's attention being on our ailing economy, is this really the time, politically, to bring this issue up again? "

You are so right. Our politicians and the body politic simply cannot do two things at the same time.
3.4.2009 1:41am
Strict:

Splunge's point is correct: with the country's attention being on our ailing economy, is this really the time, politically, to bring this issue up again?


You can't be serious.

The economy's bad guys, so please don't challenge the constitutionality of a particular provision of a statute.

What? I really don't get this argument.

It seems like you are just inventing up "principles" to rest your objection on.
3.4.2009 1:45am
Randy R. (mail):
ReaderY: " The requirement that recreational and procreational sex go together helped ameliorate, if not break, an era of what was essentially domestic enslavement -- women were worse-used in classical Athens than in other ancient societies, and the institution of monogamous heterosexual marriage helped break some of the worst features of that ill-use."

So women in Massachusetts are enslaved because some gay people get married? that's pretty astounding.


"And they may, in their own way, be right. Perhaps there may be an era when society moves far enough beyond the segregation regime that the right thing to do would be to relax the strict no-same-sex-employment laws and permit a relatively small number of people who need such things to come in out of the closet and live like everybody else. Perhaps it will become evident such permission wouldn't spread to society as a whole, or result in a re-casting of society or create fundamental hurt for everyone."

And perhaps it will not. There is no evidence at all that when gay people are true to themselves and come out of the closet that society is hurt in any way. In fact, the opposite occurs -- we don't have sham marriages whereby people get married because it's expected of them. Like Governor Greevey or Ted Haggard.
3.4.2009 1:46am
cmr:
On a larger point, however, I find it beyond incredible that the anti-same-sex marriage crowd persists in its efforts to deny same-sex couples the right to marry. Gay marriage has been legal in Massachusetts for over five years now. If anyone can enlighten me how this legalization has resulted in any adverse effects on heterosexual marriage, on society or on families generally, I'd love to hear it.


Well, personally, I don't buy into the whole "gay marriage will destroy heterosexual marriage" argument because it doesn't make a ton of sense, but I will say (a) I hear more pro-same-sex marriage supporters characterize that to be the claim of opponents of gay marriage more than I hear gay marriage opponents actually say, "this will destroy heterosexual marriage", and (b) corrosion of any social trend is going to take longer than five years. It's been over forty years since the passing of the Civil Rights Act and the Voting Rights Act, but we still see racial discrimination and violence (though, of course, less of it) and attempts to slight the rights of voters (usually blacks and Latinos). Five years is hardly long enough.

I would ask you that question in reverse: what has the legalization of gay marriage done to help society beyond giving gay couples some semblance of that elusive "equality" they seem to want so badly?

One may think that the reactionary conservative bigots who oppose same-sex marriage would rethink their position once five years of evidence has demonstrated that same-sex marriage is a threat to no one, and to nothing. Oh well. Like with civil rights and women's rights, history will redeem those of us who believe in equal rights for gays. And conservatives will again be tarnished as the reactionary bigots they are and will likely always be.


There's evidence that gay marriage was a good idea? Where?

Saying, "see, nothing happened" doesn't make it a good idea, alluding to the idea that nothing will happen isn't reason to enact it everywhere, and it's actually kind of a fallacy to say nothing has happened. In fact, the two big claims (or, "lies", if you ask SSM supporters) of Prop 8 are evident in MA: same-sex marriage is taught in schools, and religious freedoms have been curbed (a longstanding Catholic adoption agency had to close their doors because they refused to allow a gay couple to adopt a child because it was against their religious views).
3.4.2009 1:49am
Randy R. (mail):
Some dude: " According to the Federal government, no man can marry another man. Equal protection. Not singling anyone out."

Strange. In Massachusetts and Connecticut, one man can marry another man. In all other states they cannot. and yet you can't see the difference.

Very strange.
3.4.2009 1:50am
Strict:

Gender discrimination does not violate the fourteenth amendment


Lol.

The Supreme Court thinks otherwise. e.g. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273 (1979). See also Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)....
3.4.2009 1:50am
Randy R. (mail):
cmr: "I would ask you that question in reverse: what has the legalization of gay marriage done to help society beyond giving gay couples some semblance of that elusive "equality" they seem to want so badly?"

Well, good question! Can you show me where interracial marriage has been good for society? Or any marriage, for that matter? Please explain why Britney Spear's 14 hour marriage was good for anyone, or society, even though it was perfectly legal. Why is the burden upon anyone to prove that their marriage is good for anyone other than themselves?

But of course, gay marriage IS good. I know quite a few gay couples that have children. Shouldn't those children have the right to have married parents? Isn't it in their best interests, and the interests of society, to have married parents when children are involved?

"(b) corrosion of any social trend is going to take longer than five years."

Please give me an example of how society can be 'corroded' because a few gay people get married.
3.4.2009 1:55am
cognitis:
In homosexuality God detects a defect and orders the defective to not reproduce. Marriage institution, as argued by cmr too, provides for families and children. The matter of partner benefits differs from the matter of familial benefits, since marriage institution does not include homosexuals; the matter of homosexual benefits instead pertains to the matter of friend or pet benefits. For example, many women have relationships with their cats in every way as close as that between homosexuals; since health insurers now sell pet health insurance, why should not these women receive the same employer subsidies for pet health benefits as homosexual partners do? Would this not be discrimination against women and pets?
3.4.2009 1:56am
cmr:
cmr: "I'd also like to point out that Splunge's point is correct: with the country's attention being on our ailing economy, is this really the time, politically, to bring this issue up again? "

You are so right. Our politicians and the body politic simply cannot do two things at the same time.


Your erroneous comment is compounded by your unwarranted glibness, Randy R. I'm referring to public opinion and where our collective focus lies. It would take someone massively out of the loop not to understand basic ideas like timing and not to have the prescience to see that a lot of people, those who still haven't made up their minds entirely about this matter, will see this as being kind of ill-timed and, dare I say, tacky.

You can't be serious.

The economy's bad guys, so please don't challenge the constitutionality of a particular provision of a statute.

What? I really don't get this argument.

It seems like you are just inventing up "principles" to rest your objection on.


You don't get it because you made something up your head and responded to it, and not what neither I nor Splunge said.

I don't think it's a good idea to keep making this an issue because of what's ultimately at stake. There's a fine line between ambition and compulsion, and many of you, it seems, don't understand the difference. Why give ammunition those looking to frame this issue as a bunch of gay, liberal fascists who don't respect the majority opinion in any case whatsoever if it doesn't appease them. I'm sure that will produce a very fair and balanced narrative in the upcoming mid-term election.
3.4.2009 2:01am
CrimLawStudent:

Saying, "see, nothing happened" doesn't make it a good idea, alluding to the idea that nothing will happen isn't reason to enact it everywhere, and it's actually kind of a fallacy to say nothing has happened.

I believe he wasn't making the argument that "it is a good idea" follows from "see, nothing happened," but rather he was disputing the anti-SSM argument, which was "if you allow SSM, then bad things will happen."
3.4.2009 2:02am
Randy R. (mail):
cmr: "(a longstanding Catholic adoption agency had to close their doors because they refused to allow a gay couple to adopt a child because it was against their religious views)."

Now cmr. This has already been explained to you several times. You don't want people to actually think you are that dense, do you? Because otherwise, we might demand that dense people have to justify their desires to marry.

But here goes, once more. please read carefully, and if you doubt any of it, you are free to look it up online. the facts are these:

Catholic Charities had no problem placing children with gay parents for many years. However, once gay marriage was allowed in Mass., the bishop suddenly decided that gay couples were not good enough and stopped placing children. The directors of the adoption program protested, but you have to do what the bishop says, so they stopped.

Catholic Charities is a public charity and received funds from the Commonwealth of Mass for its adoption practices. So the state said that if you don't want to place children in gay households, that violates the state's anti-discrimination laws. The state then gave them a choice: Either comply with the law and continue to receive state funds, OR continue the current discriminatory policy, but you will receive no state funds. At no time did the state force them to shut down their adoptions, but rather, gave them two options under which they could continue.

So Catholic Charities decided to stop adoptions altogether. No one forced them to do that, and gays certainly had nothing to do with it. Rather, it was their own decision.

Are we clear about this?
3.4.2009 2:03am
Randy R. (mail):
Cognitis:"Marriage institution, as argued by cmr too, provides for families and children"

True. So what would you do with the kids of gay parents, of which there are quite a few?

"In homosexuality God detects a defect and orders the defective to not reproduce."

So anyone who is infertile is defective? I'm gay, but my sperm is pretty darn good, and I certainly can reproduce. so I guess I'm not defective in the eyes of God.

cmr; "I don't think it's a good idea to keep making this an issue because of what's ultimately at stake."

And what is at stake? We keep asking, and you keep ignoring!
3.4.2009 2:07am
Roger Schlafly (www):
Some dude: " According to the Federal government, no man can marry another man. Equal protection. Not singling anyone out."

Strange. In Massachusetts and Connecticut, one man can marry another man. ...
No, not under federal law, they cannot. A man cannot marry another man and be recognized as married by the federal govt.
3.4.2009 2:09am
Randy R. (mail):
cmr: "Why give ammunition those looking to frame this issue as a bunch of gay, liberal fascists who don't respect the majority opinion in any case whatsoever if it doesn't appease them"

Well, more than just us fascist gays! Afterall, a good 48% of the population in CA voted in favor of gay marriage -- there can't be that many gays there! And in Massachusetts, a clear majority favors gay marriage.

Not to mention the fact that about 70% of the entire population supports gays serving openly in the military.

Sorry, but most people aren't nearly as anti-gay as you are, and the few that are are shrinking every day. I guess that's why you have to resort to calling us names, like 'fascists'. When you lose the arguments, all you have left is name calling and fear mongering, right?
3.4.2009 2:10am
cmr:
cmr: "I would ask you that question in reverse: what has the legalization of gay marriage done to help society beyond giving gay couples some semblance of that elusive "equality" they seem to want so badly?"

Well, good question! Can you show me where interracial marriage has been good for society? Or any marriage, for that matter? Please explain why Britney Spear's 14 hour marriage was good for anyone, or society, even though it was perfectly legal. Why is the burden upon anyone to prove that their marriage is good for anyone other than themselves?

But of course, gay marriage IS good. I know quite a few gay couples that have children. Shouldn't those children have the right to have married parents? Isn't it in their best interests, and the interests of society, to have married parents when children are involved?


It was such a good question that you had to...answer it with a question? Mmmkay. Interracial marriage has served the same purpose same-race marriage serve...whatever you think those are.

Britney Spears was married for 55 hours (I know...big deal), and I don't think it served any good to anyone. That said, I've yet to see anyone claim it has, or would, and I'm pretty sure the same people who disagree with same-sex marriage wouldn't agree with quickie Vegas marriages, either. Socons aren't popular with heterosexual heathens, either, y'know?

The burden is there when you take it upon yourself to ask those against SSM how it has hurt heterosexual marriage. It hasn't helped heterosexual, or any other type of marriage for that matter, has it? It's a ridiculous question to ask because it doesn't answer why there is a compelling reason for legalizing it. Will it help me? Will it hurt me? If the answer to both of those is "no", that doesn't explain why I should support it any more than it explains why I shouldn't.

In short, basing the quality of something on it's null outcome is rather self-defeating.

"(b) corrosion of any social trend is going to take longer than five years."

Please give me an example of how society can be 'corroded' because a few gay people get married.



Notice how I said I actually don't subscribe to that argument in the first place. That statement was contingent upon whether or not it was true that gay marriage would hurt heterosexual unions. I was simply saying, if something were to happen, it would take longer than five years for it to show. That's more a general truth than something specific to gay marriage.
3.4.2009 2:13am
Randy R. (mail):
"No, not under federal law, they cannot. A man cannot marry another man and be recognized as married by the federal govt."

Correct, Roger! But my point was that he was saying that denying the right to SSM doesn't hurt anyone because it applies to everyone. In other words, as Victor Hugo once sardonically noted, "The law, in all its majesty, prohibits both rich and poor alike from sleeping under the bridges."
3.4.2009 2:14am
CrimLawStudent:
I can't tell if cognitis (a disease pertaining to cognitive functioning?) is serious or trolling...

On a different note, I am having a hard time understanding how civil libertarianism and the anti-SSM position (or at least support for these provisions of DOMA) are consistent with one another.

Anyone care to enlighten me?
3.4.2009 2:15am
Randy R. (mail):
cmr:" Interracial marriage has served the same purpose same-race marriage serve...whatever you think those are."

Exactly! And SSM marriage serves the same purpose and same-race marriage and interracial marriage and all other marriages,which is that two people who love each other, wish to care for each other til death do them part, ought to be able to be married.

" Socons aren't popular with heterosexual heathens, either, y'know?"

Popular or not, their marriages are nonetheless legal. If you care that much about marriage, then perhaps you should prohibit marriage, or have all betrothed come before a committee to see if their marriage will somehow benefit society. But of course you don't -- you limit your demand only to gay people.

"In short, basing the quality of something on it's null outcome is rather self-defeating."

Agreed. So why keep asking whether SSM will benefit or harm marriage?

" I was simply saying, if something were to happen, it would take longer than five years for it to show. That's more a general truth than something specific to gay marriage."

And why would you assume that? If SSM is so terrible, then the 'something' should happen fairly quickly. On what basis do you assume that it will take longer than five years? So how much longer -- ten, 20 or 50 years? And the longer it takes, the more other influences will affect marriage.

But you still haven't answered the question: What possible 'something' could happen,even after five years?
3.4.2009 2:21am
Randy R. (mail):
cmr:"Your erroneous comment is compounded by your unwarranted glibness, Randy R. I'm referring to public opinion and where our collective focus lies. It would take someone massively out of the loop not to understand basic ideas like timing and not to have the prescience to see that a lot of people, those who still haven't made up their minds entirely about this matter, will see this as being kind of ill-timed and, dare I say, tacky."

So then we should have been pressing for SSM before this crisis, like last year? You were okay with it then?
3.4.2009 2:23am
David Schwartz (mail):
You have the privilege of having the government recognize your marriage to a member of the opposite sex, just like everyone else does.

Get it?
Nobody believes that, so why do people say it? Is it just to see who can make the must obviously invalid argument?

Could the government pass a law prohibiting praying to Jehovah? Jews can still pray to the same set of gods Christians can, right?
3.4.2009 2:29am
David Schwartz (mail):
Scape- sure, and separate but equal is really equal, and preventing interracial marriage applies equally to all races, so that's equal too.
Again, this is so obviously false that it's almost comical. How about A law prohibiting praying on Saturday?
3.4.2009 2:31am
Randy R. (mail):
cmr: "It was such a good question that you had to...answer it with a question? "

Ummm, no. I answered your question by saying that SSM is unquestionably good for their children.

Again, I keep asking opponents of SSM: What would you prefer for the children of gay parents, keeping them single, or allowing themto be married?

No one will ever answer the question. I suspect because it paints them in a corner. Of course, they know that children are better off with married parents. It's what they always argue! But they can't admit that it would be good even when the parents are gay, and they can't figure out how to explain that. So they just ignore the question.

I invite you,cmr, to take a stab at it, however.
3.4.2009 2:31am
trad and anon (mail):
Why exactly is GLAAD bringing this lawsuit now? The President has said he wants to repeal the law. If he doesn't succeed, they will either (a) lose at the appellate level or (b) win at the appellate level and have SCOTUS reverse. Either way they are unnecessarily creating adverse precedent.
You have the privilege of having the government recognize your marriage to a member of the opposite sex, just like everyone else does.
And in Saudi Arabia, Christians and Muslims are equally free to worship God at the mosque of their choosing.
3.4.2009 2:34am
cmr:
I believe he wasn't making the argument that "it is a good idea" follows from "see, nothing happened," but rather he was disputing the anti-SSM argument, which was "if you allow SSM, then bad things will happen."


He was, quite fallaciously, defending same-sex marriage with "see, nothing happened".

cmr: "(a longstanding Catholic adoption agency had to close their doors because they refused to allow a gay couple to adopt a child because it was against their religious views)."

Now cmr. This has already been explained to you several times. You don't want people to actually think you are that dense, do you? Because otherwise, we might demand that dense people have to justify their desires to marry.

But here goes, once more. please read carefully, and if you doubt any of it, you are free to look it up online. the facts are these:

Catholic Charities had no problem placing children with gay parents for many years. However, once gay marriage was allowed in Mass., the bishop suddenly decided that gay couples were not good enough and stopped placing children. The directors of the adoption program protested, but you have to do what the bishop says, so they stopped.


Randy, how many times do I have to explain to you: other people have Google, and they're not afraid to use it. So when you try to engage in evidenciary debate with obviously doctored rebuttals, it's not that hard to prove you wrong.

CC had processed all of thirteen gay adoptions, and when asked, the agency said they did so to comply with anti-discrimination statutes. It wasn't clear that they had no problem with gay adoption. It seemed like it was for them, like it is for most people, a complex issue that they felt they were obligated to accommodate because they didn't have an exemption.


Catholic Charities is a public charity and received funds from the Commonwealth of Mass for its adoption practices. So the state said that if you don't want to place children in gay households, that violates the state's anti-discrimination laws. The state then gave them a choice: Either comply with the law and continue to receive state funds, OR continue the current discriminatory policy, but you will receive no state funds. At no time did the state force them to shut down their adoptions, but rather, gave them two options under which they could continue.

So Catholic Charities decided to stop adoptions altogether. No one forced them to do that, and gays certainly had nothing to do with it. Rather, it was their own decision.

Are we clear about this?


CC is a non-profit. They closed their adoption agency once the state ruled that gay couples be allowed to adopt children, because they felt it was immoral to continue to do so. From what I've read, it had little, if any, to do with state funding and more of the lack of moral compunction to adopt children out to gay couples.

I don't know where you're getting your story from, but I'd love to see the source. Methinks you're taking some poetic license, but we'll see what you come up with.

cmr; "I don't think it's a good idea to keep making this an issue because of what's ultimately at stake."

And what is at stake? We keep asking, and you keep ignoring!


Are you using invisible font? Who is we? And when?

And for the record, I wasn't talking about what's at stake for opponents of gay marriage. I was talking about the gay community.

cmr: "Why give ammunition those looking to frame this issue as a bunch of gay, liberal fascists who don't respect the majority opinion in any case whatsoever if it doesn't appease them"

Well, more than just us fascist gays! Afterall, a good 48% of the population in CA voted in favor of gay marriage -- there can't be that many gays there! And in Massachusetts, a clear majority favors gay marriage.


...and a good 52% of the population in CA voted against gay marriage, and in Mass, they enacted gay marriage by judicial fiat and not popular vote, so you claiming there's a clear majority is really based on specious polling done and not by anything substantial, like oh, say, democratic vote.

Not to mention the fact that about 70% of the entire population supports gays serving openly in the military.


Which has 0% to do with what this thread is about.

Sorry, but most people aren't nearly as anti-gay as you are, and the few that are are shrinking every day. I guess that's why you have to resort to calling us names, like 'fascists'. When you lose the arguments, all you have left is name calling and fear mongering, right?


Randy, it really is amusing how you so eagerly default to your kicked-dog analysis of the world. First of all, I said that's how the right-wing can, and tends to, spin the efforts by gays to enact gay marriage through the courts. That you all don't want to do the nuts-and-bolts work of shifting public opinion, no, you just want us to all be told what to support and accept. Kind of, like, fascists.

Silly me for expecting you to understand nuance of my opinions when you barely have any of it for your own.

Second, "most people aren't nearly as anti-gay as [you] are"...really, Randy? What if they are? What if they, if given the opportunity to speak with relative anonymity to the issue of gay marriage, or given the opportunity to vote on it, would vote against it? Like me?

Considering "most people" have voted against gay marriage when given the opportunity, that would make "most people" closer to my perception of this issue than yours. Perhaps you don't know what "most" really means. Perhaps you think numbers don't matter unless they psychologically satisfy the way you've idealized the world. Because 48% in the largest, most diverse, most liberal state in the union, after being the most expensive ballot initiative in history (in which they had most of the money), after the state Supreme Court had allowed gay marriage, after already having domestic partnerships that give all the rights marriage would...isn't saying much. It's saying even with stakes of historic proportions, people will still vote for traditional marriage.

Guess I'm not as romantic as you are, Randy. You'll have to excuse me if I think your perception of the world is just a step below Power Rangers in terms of realism.
3.4.2009 2:50am
cmr:
cmr:"Your erroneous comment is compounded by your unwarranted glibness, Randy R. I'm referring to public opinion and where our collective focus lies. It would take someone massively out of the loop not to understand basic ideas like timing and not to have the prescience to see that a lot of people, those who still haven't made up their minds entirely about this matter, will see this as being kind of ill-timed and, dare I say, tacky."

So then we should have been pressing for SSM before this crisis, like last year? You were okay with it then?


[sighs]

The problems of this three-month-old year kind of were the problems last year, Randy.
3.4.2009 2:55am
D K Warren (mail):
Balkininzation has a good discussion of the legal issues in this case here.
3.4.2009 3:18am
cmr:
Clicked 'post' too quickly.


cmr:" Interracial marriage has served the same purpose same-race marriage serve...whatever you think those are."

Exactly! And SSM marriage serves the same purpose and same-race marriage and interracial marriage and all other marriages,which is that two people who love each other, wish to care for each other til death do them part, ought to be able to be married.


No, it doesn't. You're ignoring distinctions to rachet up your claims, and quite transparently at that. They don't serve the same function as all other types of heterosexual (man/woman) marriages do, and you know it.


" Socons aren't popular with heterosexual heathens, either, y'know?"

Popular or not, their marriages are nonetheless legal. If you care that much about marriage, then perhaps you should prohibit marriage, or have all betrothed come before a committee to see if their marriage will somehow benefit society. But of course you don't -- you limit your demand only to gay people.


You're very dramatic for someone who seems to think they're being rational.

At any rate, don't solicit my reaction to the likes of Britney Spears' marriage, and then when I answer your question and note the relative dishonesty of it, act like all you've cared about is the bottom line.

Yes, Britney Spears' quickie marriage was legal. Not because she's straight or well-suited to marry or because she claimed to be in love with the guy, but because she got married to a member of the opposite sex. Every man and woman, regardless of their orientation, has the inalienable opportunity to do the same thing. It just so happens not all of them want to.

"In short, basing the quality of something on it's null outcome is rather self-defeating."

Agreed. So why keep asking whether SSM will benefit or harm marriage?


Because the initial question was in response to a poster, who obviously wasn't you, who asked what harm has come to heterosexual marriage. I'm merely pointing out that it's a trivial point to make not just because I think it's something of a question based on a straw man, but because it hasn't resulted in a net benefit for them, either. So there's no point in asking that question.

" I was simply saying, if something were to happen, it would take longer than five years for it to show. That's more a general truth than something specific to gay marriage."

And why would you assume that? If SSM is so terrible, then the 'something' should happen fairly quickly. On what basis do you assume that it will take longer than five years? So how much longer -- ten, 20 or 50 years? And the longer it takes, the more other influences will affect marriage.


And how would you assume that? That it would be "fairly quickly"? And, for one, take Prop 8. CA obviously is still against gay marriage, though I'm sure you will once again romanticize the significance of 48% of people voting in favor of it. Was eight years enough time to change CA into a state willing to vote for gay marriage? Apparently not. So why would five years be enough time cause noticeable change? This is also ignoring the fact that some things did change in MA, and you're just compartmentalizing my comments.

But you still haven't answered the question: What possible 'something' could happen,even after five years?


Because you've yet to acknowledge the entirety of my initial statement. How many times do I have to say that I don't buy into the whole "gay marriage will do x to my marriage"?

Even though, I will say, I did cite two examples of how things did change in MA regarding school and Catholic Charities.

cmr: "It was such a good question that you had to...answer it with a question? "

Ummm, no. I answered your question by saying that SSM is unquestionably good for their children.


Actually, you answered my question with a litany of other questions.

Again, I keep asking opponents of SSM: What would you prefer for the children of gay parents, keeping them single, or allowing themto be married?


Personally speaking, I'd rather kids have a good single parent than two that pervert what marriage is, and in which one isn't (and couldn't ever be) their parent. Two parents aren't always better than one, and that goes for heterosexual parents, too.

For the gay couples who have children, I wouldn't support banning them from the tax exemption everyone with Dependents would receive. But that doesn't mean I'd support them having full, legalized marriage benefits.

No one will ever answer the question. I suspect because it paints them in a corner. Of course, they know that children are better off with married parents. It's what they always argue! But they can't admit that it would be good even when the parents are gay, and they can't figure out how to explain that. So they just ignore the question.

I invite you,cmr, to take a stab at it, however.


Done and done. I wouldn't agree that kids are better off with any two people who are married versus one, unmarried parent, but thanks for asserting that for me, and us, anyway.
3.4.2009 3:19am
John D (mail):
Oh, I could so deal with a thread about same-sex marriage without the word "pervert" ever coming up.

I figured the best place to look for news about Catholic Charities of Boston was the Boston Globe. In the article, Catholic Charities pulls out of adoption business, it is made clear that:
The state's four Catholic bishops said earlier this month that the law threatens the church's religious freedom by forcing it to do something it considers immoral. Eight members of Catholic Charities board later stepped down in protest of the bishops' stance. The 42-member board had voted unanimously in December to continue considering gay households for adoptions.

It also has hundreds of staff workers dedicated to adoption services, who may now have to work elsewhere. It is also unclear how much of its $35 milion in revenue could be affected by dropping its adoption services. Currently, 54 percent of its revenue comes from government contracts, and 19 percent from United Way organizations and other private fundraising.


cmr had said:
They closed their adoption agency once the state ruled that gay couples be allowed to adopt children, because they felt it was immoral to continue to do so. From what I've read, it had little, if any, to do with state funding and more of the lack of moral compunction to adopt children out to gay couples.


Except the Globe article says it's the other way around.
3.4.2009 3:50am
IB Bill (mail) (www):
I'm not a lawyer, so I don't know what you call this ... but it's one thing to redefine a term and another thing to apply those redefined terms. The battle, to me, has always been to win at the first level because that's where the arguments are strongest. At this DOMA level, it seems to me (I could be wrong -- not a lawyer) we're talking about applying the redefinitions, not re-litigating the original decision.

Unfortunately (to some of us), now the legal case gets tough in favor of DOMA. I've been against SSM -- because it doesn't exist (forget that argument for a moment) in the real, philosophical sense. But now "SSM" does exist now in the legal sense. So now what's the argument? If SS couples (which do exist in the real, philosophical sense) have been granted SSM under a single state law and are now treated differently under federal law, how do you argue that disparate treatment (probably the wrong term) is equal treatment under the law?

Either the Supreme Court strikes down the Massachusetts and other state laws fabricating this philosophical absurdity (SSM) or it has to come up with an argument I haven't seen yet about how that unequal treatment is justified. I don't see how you can uphold DOMA unless you strike down SSM at the federal level, and simply say, "We don't care what Massachusetts says, you're not really married under federal law." How, and whether, the Court can say that I don't know. I don't know enough about the legalities of federal recognition of state laws.

Anyway, that's how I see it now.
3.4.2009 4:31am
IB Bill (mail) (www):
Exactly! And SSM marriage serves the same purpose and same-race marriage and interracial marriage and all other marriages,which is that two people who love each other, wish to care for each other til death do them part, ought to be able to be married. (Emphasis mine.)

What's so special about the number two?
3.4.2009 4:38am
IB Bill (mail) (www):
Again, I keep asking opponents of SSM: What would you prefer for the children of gay parents, keeping them single, or allowing themto be married?

There are no children of gay parents. That's the sleight-of-hand in your argument. There are adopted children, but that's different. But no, gay couples have never had children; they just in some cases care for the children of heterosexual couples.

This whole issue could have been handled a lot better. Something along the lines of, "We in the homosexual community would like some civil space to order our affairs in a way analogous to the current institution of marriage. Think we can come up with a way to do that?"

It would have shown more respect to those who want to preserve the definition of marriage as it existed, and acknowledge the concerns of homosexual couples who want access to various legal conveniences of marriage, such as joint filing of tax returns and estate planning.

But instead it's been, "Bigot! Bigot! Bigot! You're like those segregationists and racists of old!" It's tiresome.
3.4.2009 4:51am
IB Bill (mail) (www):
BTW, it's unclear in the above posted, but I changed subjects between my first and second paragraphs. It would be better if I'd added a row of astericks or something for clarity's sake.
3.4.2009 4:52am
NaG (mail):
On a practitioner note, I think I could have written the same Complaint in about a third of the pages. This Complaint aims to be an appellate brief, which is largely a waste of time at this stage. I know that it's meant to be something of a press release as well since the media will use the Complaint to write their stories, but this takes it a bit far.
3.4.2009 7:26am
pluribus:
IB Bill:

There are no children of gay parents. That's the sleight-of-hand in your argument. There are adopted children, but that's different. But no, gay couples have never had children; they just in some cases care for the children of heterosexual couples.

Who gave you the authority to define the terms of the discussion? Are you saying that Ronald Reagan and Jane Wyman "never had children"? That Bob and Delores Hope, George Burns and Gracie Allen, Walt and Lily Disney, Helen Hayes and Charles MacArthur, Jesse Helms and Doroty Coble, Brad Pitt and Angelina Jolie, Roy Rogers and Dale Evans, Judy Woodruff and Al Hunt, "never had children"? In the eyes of the law (which is what we are talking about here), they all had children--and they were adopted children. And all of these people were, by the way, heterosexuals. Your effort to define how people "have children," so as to deprive a substantial number of people of the relationship of parent and children is contrary to the law. Of course, we know that two people of the same sex cannot conceive children with each other, but we also know that two people of the opposite sex often cannot conceive children with each other, and that two people of the same sex can often conceive children with other people of the opposite sex. To deny the legal fact that adoption creates the relationship of parent and child is fallacious and mean-spirited. If you say that adoptive parents don't "have" children, do you also argue that adopted children don't "have" parents? It is nonsense. Adoption is an ancient institution, recognized around the world, and when children are adopted, they "have" parents and their parents "have" children.
3.4.2009 8:32am
Smallholder (mail) (www):
I'm glad to see some opponents of gay marriage admitting that gay marriage has not proved to be a catastrophe over the last few years. Some people on this thread have admitted that there has been no harm.

I'm sad to see that some people, despite this, still oppose gay marriage: "What does it do for me?" In a society, we shouldn't focus entirely on ourselves. If gay marriage doesn't hurt me, but does help some other people, shouldn't we MORALLY support it? I mean, research on curing ovarian cancer doesn't help me, but I'm for it because it might help other people. I hope the females out there don't object to doing research on testicular cancer.

If there is a harm involved, one can legitimately discuss trade-offs. But if there isn't harm involved, why the heck wouldn't we give equal rights to other people.
3.4.2009 9:08am
ruralcounsel (mail):
Without having read each post in gory detail, (so apologies if this was covered already), but isn't this a perfect example of why the State shouldn't have gotten involved in the "marriage" business to begin with?

Marriage should be a purely symbolic religious institution, and the various religions should be able to define it in whatever way suits their illusions.

The only reason, it would seem, that it now matters is because the State got involved, tried to craft a structure of various statutes and regulations around the status of being "married" (such as tax, adoption, and inheritance)which were inherently unfair to someone, since they inherently favored someone else.

This is what comes of the "slippery slope" of the State having an "interest" in some kind of social norm, or worse, in some kind of ownership rights in children, family structures, or what have you. They can justify almost anything with that kind of standard, intruding in to almost anyone's sphere of privacy. Too much social engineering.

I'm all for bisecting the two concepts, and ideally, keeping government out of the business of favoring one citizen over another based upon who they 'sleep' with.
3.4.2009 9:11am
pluribus:
IB Bill:

There are no children of gay parents.

According to your definition, Michael Reagan should stop claiming that Ronald Reagan was his father. Ronald Reagan didn't conceive him, but he and Jane Wyman did adopt him. Ronald Reagan gave him his name, supported him, provided a home for him, and called him son. But you say he wasn't the child of Ronald Reagan and Jane Wyman. If your point is merely about the biological process by which children are conceived, how does that apply to the current argument? Does it mean that adoptive parents (whether gay or straight) don't "have" adopted children? That there aren't gay couples all across the world who are raising children, some conceived by them, some adopted, some both conceived and adopted (stepparent adoptions are very common), providing them with love and support? Your biological point proves absolutely nothing that denies these facts. And the law universally treats adopted children the same as natural children. They have the same rights, and their parents have the same duties. You offer no logical argument why the adopted children of gay parents should be denied the same protections as the adopted children of straight parents--why gay parents of adopted children can't be married, but straight parents of adopted children can.
3.4.2009 9:22am
Strict:

Why exactly is GLAAD bringing this lawsuit now?


Lol. Because these individuals want RELIEF now?

On a bigger scale, haven't you ever heard the "I Have a Dream" speech? You remember the line about the "fierce urgency of now" and the "now is the time" theme?



There are no children of gay parents.


Lol. Yes, and there are also no parents of gay children, if you think about it!

I pose a similar question that I asked the conservatives here who advocated deporting Muslims from the US, regardless of their US citizenship:

Do you have any friends who are gay? [Sometimes a little basic interaction with other human beings is good.]
3.4.2009 9:55am
Strict:

philosophical absurdity (SSM)


Bill,

It's only a "philosphical absurdity," something abstract and theoretical, because you have no experience with it in real life.

Tell us, have you ever met a married gay couple? I have.

There's nothing philosophical or absurd about it.

I wasn't always in favor of SSM, until I started weighing the arguments for and against it.

I have yet to see a persuasive argument against it. For some, the argument that "SSM is a philosophical absurdity" rings in as a real strong argument. For me, it's just meaningless pretext for your bare animosity, your FEELINGS.
3.4.2009 9:59am
Strict:

[sighs]

The problems of this three-month-old year kind of were the problems last year, Randy.


What does this even MEAN?

Seriously, what is going on here? Is this derangement?

It's actually bizarre.

Well you see Randy, gay marriage is bad because of the three-month old year kind of philosophical absurdity of last year and the perverted concupiscence, animadverting on our families, but not gay families because gay people can't have children because children don't come out of butts!

Um...
3.4.2009 10:03am
cmr:
John D:

Except the Globe article says it's the other way around.


I re-read what I said, and I see how it gets confusing. To reiterate: CC stopped adopting out children to same-sex couples because they felt it was immoral, not based on some ultimatum by the state. Like I said, they're a 501c3 organization just like any other charity, so I didn't doubt they received some government funding (though I think "government contracts" is a bit different than "government handout", but whatever). I was doubting Randy's version of the story, and what you quoted didn't negate that.

Catholic Charities of Boston announced today that it will be pulling out of the adoption business by the end of this fiscal year because it cannot comply with state laws that require it to accept gays and lesbians as adoptive parents.

"We have encountered a dilemma we cannot resolve," said Rev. J. Bryan Hehir, president of Catholic Charities of Boston and Jeffrey Kaneb, chair of the board, in a joint statement. "In spite of much effort and analysis, Catholic Charities finds that it cannot reconcile the teaching of the church, which guides our work and the statutes and regulations of the commonwealth."


The article I read also said little about funding...

Some board members said another concern was the potential impact on financing. The United Way of Massachusetts Bay, which provided $1.2 million to Catholic Charities last year and is the largest private funder of the agency, planned to review its funding if the agency discriminated against gays and lesbians in its adoption work.


...but, it didn't say anything about government funding. It only mentioned their biggest private donor.

It's obvious, to me, that they closed because of the gay tolerance > religious freedom math people keep mentioning and gay activists keep denying exists.
3.4.2009 10:10am
cmr:
What does this even MEAN?

Seriously, what is going on here? Is this derangement?

It's actually bizarre.

Well you see Randy, gay marriage is bad because of the three-month old year kind of philosophical absurdity of last year and the perverted concupiscence, animadverting on our families, but not gay families because gay people can't have children because children don't come out of butts!

Um...


Um...indeed. Were the first three lines of your post meant to sum my reaction to what followed? If so, it was stunningly prescient.
3.4.2009 10:14am
SeaDrive:

For example, many women have relationships with their cats in every way as close as that between homosexuals...


I can hardly believe that no one commented on this slur. Perhaps everyone else has better taste that I and has averted their eyes.

Even granted the usual latitude for internet hyperbole, this comment is pretty ugly. It reveals that some on the anti side don't actual see homosexuals as real people, anymore than slave owners thought of their slaves as real people. This liberates them from guilt over the pain caused by their homophobic policies.
3.4.2009 10:15am
Mhoram:

There are no children of gay parents.

Whisky Tango Foxtrot, over?

Take, for example, a college friend of mine. She got married and spawned a set of twins. Her husband was later killed in a workplace accident. She later moved to Massachusetts and married another woman.

So, is she not the parent of her children anymore?

***************
And really, the old saw about marriage being about bearing and raising children? Baloney!

Unless, of course, the folks who hold to that position also advocate making marriage between old people, infertile people, or people who simply choose not to have kids illegal.

***************

Finally - this is the biggest non-issue up for public discourse. The battles are still being fought, but the war might as well be over. There will be equal rights and equal protection for gays and lesbians, and it will happen in the foreseeable future. People under 30 overwhelmingly support it, and as the old guard dies off, and the younger generation takes control of the body politic, the end result is inevitable.
3.4.2009 10:32am
cmr:
Even granted the usual latitude for internet hyperbole, this comment is pretty ugly. It reveals that some on the anti side don't actual see homosexuals as real people, anymore than slave owners thought of their slaves as real people. This liberates them from guilt over the pain caused by their homophobic policies.


It makes me want to weep how devoid of context, nuance, and understanding people who define a fair amount of their political views by those three ideals. Seriously.

You all make general and theorized claims about same-sex couples, and claim that because they meet some general standard of existence that they deserve the same exact treatment that heterosexual couples receive, and claim a copious amount of dejectedness and noble ignorance as to why. When people explain using straight-ahead analysis, you default to false analogies like interracial marriage and the civil rights movement (which is probably as offensive to blacks as the "cat" analogy is to gays), false analysis like saying this is an equal rights issue (though you can't come up with one literal right straight people have and gay people don't, instead opting for symbolic rights such as "the right to marry the person you love"), false premises (that because gay marriage in two states hasn't yielded any cataclysmic results that it must have been a good idea to enact it), and victimized, put-upon rhetoric ("you disagree with gay marriage because you hate people, that's the only possible reason why you could disagree with something that has never existed!") all while, at times, defending it by cutting down the institution as it has always existed ("straight people have ruined the sanctity of marriage, not gay people").

You ignore rationale, and when people make parallels of their own, since you all seem to deal in those so heavily despite their ignorance, offensiveness, and fallaciousness, why get upset when people do the same thing to make their point?
3.4.2009 10:34am
Joseph Slater (mail):
SeaDrive:

Not only is that line horrifically bigoted against gays and lesbians, there's also more than a whiff of misogony in the stereotype about certain types of lonely, spinster women with cats. My guess is the (equally offensive to gays) example of straight men's relationships with dogs didn't leap to mind.
3.4.2009 10:36am
Sk (mail):
Regardless of our views on this contentious issue, I'm sure we can all feel grateful that in the future, it will be decided by our intellectual and moral superiors within the judiciary.

Sk
3.4.2009 10:39am
BooBerry (mail):
It is worth repeating: One may think that the reactionary conservative bigots who oppose same-sex marriage (on Volokh and in the U.S. at large) would rethink their position once five years of evidence has demonstrated that same-sex marriage is a threat to no one, and to nothing, and is, in fact, incredibly valued by the same-sex couples who have been able to share in it. Oh well. Like with civil rights and women's rights, history will redeem those of us who believe in equal rights for gays. And conservatives on this will again be tarnished as the reactionary bigots they are and will likely always be.

I am a straight male and I can't believe some of the idiocy and repulsive things about gays and gay couples I read on here. Some commenters on here are disgusting homophobes. What is wrong with this country?
3.4.2009 10:42am
pluribus:
Yes, SeaDrive, that remark about cats was abominable. But you see so many hateful remarks on these SSM threads you eventually come to expect them. I guess it's because so many hateful people oppose giving equal rights to others, and they want the world to know it. But you are right to condemn the remark. Hate is a strong emotion. I think, or at least hope, that love is stronger.
3.4.2009 10:45am
Azatoth:
BooBerry wonders what is wrong with this country?

Excuse me while I channel Sarcastro...

Clearly it is judges ("our intellectual and moral superiors").

They have destroyed this country by refusing to slavishly follow whatever the legislature, who in turn slavishly obeys the lobbyists, says. Except in that horrible Kelo decision where they should have disregarded the legislature and made them some law.
3.4.2009 10:50am
pluribus:
cmr:

You all make general and theorized claims about same-sex couples, and claim that because they meet some general standard of existence that they deserve the same exact treatment that heterosexual couples receive. . . .

This is pretty bad. I know same sex couples, and any observations about them I make are real, not general and theorized. They want equal treatment under the law. They are human beings, the same as you and I, and under our law equal treatment is granted to human beings. Is that too "general and theorized" a concept for you?
3.4.2009 10:51am
elscorcho (mail):
I'm truly not trying to throw a red herring in this discussion, but if this nonrecognition of same sex marriage is ruled unconstitutional, couldn't a state allow polygamy and those marriages would have to be recognized too. I mean its tangential to your central argument that the government shouldn't decide who you can marry. Why can't I marry someone who is already married? BTW - I don't buy into the bestiality marriage argument, an animal does not and cannot give consent.

People often argue that polygamy has a history of being oppressive for woman, but marriage itself has a history of being oppressive for woman. Again as long as it is consenting adults, I don't see the difference between redefining marriage either for homosexual partners, or for multiple partners.

Is this a problem for anyone, or just the next logical step?
3.4.2009 11:05am
cmr:
This is pretty bad. I know same sex couples, and any observations about them I make are real, not general and theorized. They want equal treatment under the law. They are human beings, the same as you and I, and under our law equal treatment is granted to human beings. Is that too "general and theorized" a concept for you?


This would be what I meant by "using a general standard of existence to justify something predicated on more than just that". It's also what I meant by false analysis and conflating literal rights with symbolic ones.

They want "equal treatment under the law" (1) based on a premise they believe ought to pertain only to them, but doesn't really pertain to anyone, ever, because if it did, there would be absolutely no reason for almost any of the other forms of coupling that deviate from standard marriage policy (i.e. polygamy), (2) while contradicting the driving message in overturning sodomy laws, which is that the government ought to stay out of their bedrooms and out of their lives, because they're private, consenting adults, but apparently now they want the government to recognize them because they figure if the government is giving out free ice cream to all the neighborhood children, they want one too, and (3) all while ignoring the fact that gay and lesbian individuals are treated the same way under the law, are allowed to do the same things as straight people, under the law, and are restricted in the same way as straight people...under the law.
3.4.2009 11:09am
cmr:
(1) based on a premise they believe ought to pertain only to them, but doesn't really pertain to anyone, ever, because if it did, there would be absolutely no reason for almost any of the other forms of coupling that deviate from standard marriage policy (i.e. polygamy),


That should say: "(1) based on a premise they believe ought to pertain only to them, but doesn't really pertain to anyone, ever, because if it did, there would be absolutely no reason for bans on almost any of the other forms of coupling that deviate from standard marriage policy (i.e. polygamy),"
3.4.2009 11:12am
Gay Conservative in DC:
As a gay man who opposes gay marriage, I am glad that GLAAD has jumped the gun now while the makeup of the Supreme Court is such that it will make it more difficult to make equal protection arguments in favor of SSM in the future.
3.4.2009 11:14am
Scape:
Well, elscorcho, you're at least a step above the rest in that you don't believe it's meaningful to compare a committed human couple to people rogering animals.

And the difference between polygamy/SSM is on the constitutional level -- there's no gender discrimination or animus against people with a specific orientation in forbidding polygamous unions. As in, there's no inherent "polygamy orientation."

So it's a policy choice for the government, not discrimination. Personally, I would be fine with it -- but no, I don't think it rises to the level of being unconstitutional discrimination (or necessarily prejudicial) to forbid it.

Plus, SSM would be really really easy to implement. You don't actually have to change any laws (beyond the gender requirement). The old model would fall to pieces as applied to polygamy.
3.4.2009 11:14am
trad and anon (mail):
Why exactly is GLAAD bringing this lawsuit now?


Lol. Because these individuals want RELIEF now?

On a bigger scale, haven't you ever heard the "I Have a Dream" speech? You remember the line about the "fierce urgency of now" and the "now is the time" theme?


If we were just talking about the perspective of the named plaintiffs involved, I'd see your point. But they aren't really the ones filing this lawsuit: GLAAD is. GLAAD just found them so GLAAD could name them in the complaint. These individuals have a right to sue, and if they're going to do it whether or not GLAAD assists them then I'd understand GLAAD's decision to help them. But nothing requires GLAAD to file a new lawsuit on their behalf.

I agree with you about the fierce urgency of now, but that doesn't mean anyone has to pursue this particular strategy. And I think it's a tactical error to file more of these lawsuits.
3.4.2009 11:22am
elscorcho (mail):
Scape,

You said

And the difference between polygamy/SSM is on the constitutional level -- there's no gender discrimination or animus against people with a specific orientation in forbidding polygamous unions. As in, there's no inherent "polygamy orientation."

That may be true, but there is a historical religious discrimination involved with polygamy. Religion is till protected right not just sexual orientation? Is sexual orientation protected by the constitution, hmm?
3.4.2009 11:22am
cmr:
I agree with you about the fierce urgency of now, but that doesn't mean anyone has to pursue this particular strategy. And I think it's a tactical error to file more of these lawsuits.


Thank you for this. I said the same thing last night, but apparently that makes me unrealistic and an inventor of principles. Whatever that means.
3.4.2009 11:26am
pluribus:
cmr:

gay and lesbian individuals are treated the same way under the law, are allowed to do the same things as straight people, under the law, and are restricted in the same way as straight people...under the law.


Anatole France:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.


(Don't try to get it, cmr. This is posted for the benefit of the fair-minded participants in this discussion.)
3.4.2009 11:36am
bacchys (mail):
I'm not opposed to gay marriage, but I don't think this lawsuit has any merit. Despite dicta in several cases, considering marriage to be a fundamental right seems an odd thing: marriage is a state-created institution. Additionally, equal protection is not violated when the circumstances are not similar. In Loving, the Court was confronted with a situation where a marriage that in all other respects comported with the common understanding of marriage (one man, one woman) was denied because of race. There was no difference in marriage between blacks versus marriage between whites, and no recognized difference in the institution where it was interracial.

Same sex marriage is a change in the common understanding of marriage, just as the efforts of polygamists over a century ago was an effort to change that understanding. It was rejected then democratically and judicially.
3.4.2009 11:38am
ChrisTS (mail):
Sea Drive (and Mhoram and J Slater): Thanks for picking up on the inane and repulsive comment about same-sex couples and women and their pet cats. Humor being a good antidote to many poisons, I think we should have some fun with it.

I am female and have cats. Some of them are male cats and some are female cats. With which of these am I permitted - by Infected Cognition and others - to have relations analogous to those between partners in same-sex relationships? Does the fact that all the male cats are neutered, and cannot reproduce, bar my having relations with them? As I cannot reproduce with the female cats, either, does this leave me with .... the guinea pig?

Of course, strictly speaking, my chances of reproducing with any of these other creatures are nil. Does that mean I cannot have relations with any of them? What if we adopt?
3.4.2009 11:39am
Ken Arromdee:
As in, there's no inherent "polygamy orientation."

But gay marriages are being compared to interracial marriages, and there's no inherent "different race orientation" either.
3.4.2009 11:40am
John D (mail):
cmr,

You might have read the Globe article I linked to, or at least what I quoted. You noted
To reiterate: CC stopped adopting out children to same-sex couples because they felt it was immoral, not based on some ultimatum by the state.


This holds a grammatical error. You see the "they" in the sentence ought to refer to CCB, when in fact it does not.
The state's four Catholic bishops said earlier this month that the law threatens the church's religious freedom by forcing it to do something it considers immoral. Eight members of Catholic Charities board later stepped down in protest of the bishops' stance. The 42-member board had voted unanimously in December to continue considering gay households for adoptions.


Bringing your statement in line with the truth gives us:

CCB stopped adopting out children to same-sex couples because the state's four Catholic bishops felt the law threatens the church's religious freedom by forcing it to do something it considers immoral.

This much should be clear: CCB had no problems with adoptions to same-sex couples.
The 42-member board had voted unanimously in December to continue considering gay households for adoptions.


This is not indicative of some sort of moral qualms. The state's bishops forced them out of the adoption business, because the bishops wanted a big loophole in the anti-discrimination laws that they weren't going to get. If CCB had its way, they'd be in the adoption business today. However, they must do what the bishops tell them.

Also, it's worth noting that the bishops' claim that the law threatens the church's religious freedom is also specious.

You also said:

The article I read also said little about funding...

Some board members said another concern was the potential impact on financing. The United Way of Massachusetts Bay, which provided $1.2 million to Catholic Charities last year and is the largest private funder of the agency, planned to review its funding if the agency discriminated against gays and lesbians in its adoption work.

...but, it didn't say anything about government funding. It only mentioned their biggest private donor.


Okay, so United Way was thinking of pulling its cash. That's going to hurt if with a reduction of state funds, since:

Currently, 54 percent of its revenue comes from government contracts


I had already found that quote on its funding. The article did note that not all of that was related to adoption.

Once again, your premise about CCB has been shown false, but you keep working from this argument nevertheless. Care to explain why your argument is so in need of falsehood to prop it up?
3.4.2009 11:45am
http://volokh.com/?exclude=davidb:

In homosexuality God detects a defect and orders the defective to not reproduce. Marriage institution, as argued by cmr too, provides for families and children.

I'm not saying they're the same guy, but you have to admit, cognitis's writing style is very similar to the prose of this visionary.
3.4.2009 11:49am
Scape:
Elscorcho, for all I know maybe there's a viable First Amendment/religious-based case against forbidding polygamy. I don't think I've heard of one, but I've never really done much with that area of the law. So I guess I can't comment on that. But no, it wouldn't be a discrimination argument -- no one's going to argue that it's intentional discrimination against members of Religion X to deny polygamy.

And KA -- I'm not sure I get what point you're making. Gay marriages are compared with the struggle to get people to recognize that interracial marriages aren't 'abhorrent to god' and 'against nature,' but the comparison doesn't have to hold true in all respects. It's discrimination against an orientation on one hand or discrimination against races meddling with the natural order of life on the other.

It's wrong to forbid interracial marriage because you don't think white people should be yoked to black people. Race is immutable and irrelevant to the question. Same for sex.
3.4.2009 11:51am
Scape:
exclude=davidb: I thought I had seen everything the internet had to offer. I see now I was grievously wrong.

I kinda wanna adopt the phrase "educated stupid," now.
3.4.2009 11:58am
Some Dude:

Scape:
You have the right to marry a woman. But /I/ don't have the right to marry her?

There are several instances where that instance may be true:
You are a man and the woman is your sister or other close relative.
You are a man and are currently married to another woman.
You are a man and the woman consents to marry me but does not consent to marry you.
You are a woman.
Historically: if you are a man but you are a "lunatic" or an "idiot" or have some kinds of VD.

Are all those instances of discrimination?

See, this is creating a new class of equal protection of couples, but not all couples deserve equal protection.

That's individual gender discrimination anyway you cut it. Not "couple discrimination."

The equal rights amendment failed.
3.4.2009 11:59am
pluribus:
Gay Conservative in DC:

As a gay man who opposes gay marriage, I am glad that GLAAD has jumped the gun now while the makeup of the Supreme Court is such that it will make it more difficult to make equal protection arguments in favor of SSM in the future.

There were probably blacks who opposed making interracial marriage legal, blacks who opposed desegregation, maybe even blacks who opposed the abolition of black slavery. (Or at least there were people with those views who claimed they were blacks.)
3.4.2009 12:03pm
trad and anon (mail):
It's wrong to forbid interracial marriage because you don't think white people should be yoked to black people. Race is immutable and irrelevant to the question. Same for sex.
Well, sexual orientation seems to be pretty darn immutable too, at least for most people (a different question from whether it's "genetic").

I don't really like these immutability arguments though. What with the progress of science, race and sex are actually getting more and more mutable. Advances in plastic surgery and gender reassignment surgery bring us closer and closer to the day when we can chance people's biological sexes without any difference in functionality. It will be quite a while until we can make functional testes and even longer until we can make functional female reproductive organs, but it will happen. Many of those same biotechnologies could be used to change people's race. With genetic nanotech we may even be able to replace people's chromosomes to make all that stuff native.

Much of this stuff is pretty science-fictional today but there's no reason we couldn't see the bulk of that within fifty years. Would that make race and sex discrimination legal? I don't think so.
3.4.2009 12:09pm
BooBerry (mail):
Given this is a law professor blog, I am frankly quite surprised at the astonishingly weak level of legal analysis in the comments. Few seem to have read the complaint and few seem to understand its arguments. As Andrew Koppelman noted, because of controlling precedent from Moreno and Romer, this is a slam dunk, and I agree. Government cannot have as its legitimate purpose the bare desire to harm a politically unpopular group. Guess what DOMA was? I have yet to hear a substantive argument to the contrary.
3.4.2009 12:16pm
cmr:
(Don't try to get it, cmr. This is posted for the benefit of the fair-minded participants in this discussion.)


Oh, OK. As a rule I tend to ignore comments that use examples to address their point without making it.

John D.

cmr,

You might have read the Globe article I linked to, or at least what I quoted. You noted

To reiterate: CC stopped adopting out children to same-sex couples because they felt it was immoral, not based on some ultimatum by the state.



This holds a grammatical error. You see the "they" in the sentence ought to refer to CCB, when in fact it does not.

The state's four Catholic bishops said earlier this month that the law threatens the church's religious freedom by forcing it to do something it considers immoral. Eight members of Catholic Charities board later stepped down in protest of the bishops' stance. The 42-member board had voted unanimously in December to continue considering gay households for adoptions.

Bringing your statement in line with the truth gives us:

CCB stopped adopting out children to same-sex couples because the state's four Catholic bishops felt the law threatens the church's religious freedom by forcing it to do something it considers immoral.


That would be more apropos if all it would take were four Catholic bishops to close up shop (which I don't know, and am not claiming to), but there's also this part in the other Globe article I found, and quoted:

By late last week, Hehir said, it became clear that the simplest approach would be to withdraw from adoption services altogether. He convened a meeting with the board yesterday morning, in which members voted unanimously to pull out. After that, Hehir said he visited two of the agency's offices in Boston and Lawrence to tell adoption staff that its services would be over by the end of the fiscal year. Currently, the agency has 15 full-time adoption workers who will need to find new jobs.



This much should be clear: CCB had no problems with adoptions to same-sex couples.

The 42-member board had voted unanimously in December to continue considering gay households for adoptions.


And then they voted unanimously to end adoptions for everyone. Hmm.

This is not indicative of some sort of moral qualms. The state's bishops forced them out of the adoption business, because the bishops wanted a big loophole in the anti-discrimination laws that they weren't going to get. If CCB had its way, they'd be in the adoption business today. However, they must do what the bishops tell them.

Also, it's worth noting that the bishops' claim that the law threatens the church's religious freedom is also specious.


Well of course it's specious to you, because you agree with the bottom line about what the anti-discrimination law means: pats on the back for gays, and "suck it" for the church. I'm assuming ;)

And we don't know whether they would get their loophole or not. They didn't take up trying to get a religious exemption because of the cost and all the peripheral effects that come with the issue of gay adoption.

You also said:

The article I read also said little about funding...

Some board members said another concern was the potential impact on financing. The United Way of Massachusetts Bay, which provided $1.2 million to Catholic Charities last year and is the largest private funder of the agency, planned to review its funding if the agency discriminated against gays and lesbians in its adoption work.

...but, it didn't say anything about government funding. It only mentioned their biggest private donor.



Okay, so United Way was thinking of pulling its cash. That's going to hurt if with a reduction of state funds, since:

Currently, 54 percent of its revenue comes from government contracts

I had already found that quote on its funding. The article did note that not all of that was related to adoption.

Once again, your premise about CCB has been shown false, but you keep working from this argument nevertheless. Care to explain why your argument is so in need of falsehood to prop it up?


Common tactic when someone is grasping at straws: assert they have irrefutably made their case early in the argument. Do be more confident in yourself, John.

At any rate, this made little sense to me. You take up the mantle and respond to something I said to Randy, and then you have the gall to not be cognizant of what he said that triggered my response? How dare you? [/faux-outrage]

Randy disproportionately blamed the threat of state funding being pulled instead of what seems to be largely based on dissonance within the charity about the morality of adopting out children to gay couples. Neither article mentioned the threat of state funding being pulled, and only one of them (interestingly, the one I cited) mentioned the funding issue as one of the reasons for their closing.

The United Way said it would "review" it's funding if they didn't allow gay and lesbian adoption, but that wasn't a certainty and neither article posited it as one.

So, to review: I said they stopped their adoption services because they were at odds with their religious beliefs, and both our sources prove that. I said state funding little, to nothing, to do with it, and both articles relegate what little they had to say on that issue as secondary reasons behind what I claimed was the primary reason. Which would make Randy R.'s initial reading of the issue, and your subsequent challenges to my reading of it, wrong.
3.4.2009 12:20pm
SeaDrive:

...instead opting for symbolic rights such as "the right to marry the person you love"...


This is a mystery. What is merely symbolic about being allowed to marry as you choose?
3.4.2009 12:22pm
Guest12345:

And the difference between polygamy/SSM is on the constitutional level -- there's no gender discrimination or animus against people with a specific orientation in forbidding polygamous unions. As in, there's no inherent "polygamy orientation."


There most certainly is a "polygamy orientation." In fact it's much more common than "homosexual orientation." Nature rewards excess when it comes to reproduction.

Besides, what if it's three men? Are you going to tell us it's ok to discriminate against those three men because we won't let mixed groupings marry either? That is the same argument that is so readily discounted re. no orientation is allowed to marry the same gender.
3.4.2009 12:22pm
cmr:
Government cannot have as its legitimate purpose the bare desire to harm a politically unpopular group. Guess what DOMA was? I have yet to hear a substantive argument to the contrary.


I'd be reticent to call any case that bases any substantial part of its argument on Romer a slam dunk (yes, including Lawrence, considering I've seen even supporters of gay marriage cite the speciousness of logic used in that Decision.

Beyond that, I'm intrigued. "Politically unpopular group". Tell that to Randy R., who believes that gay marriage has overwhelming support in MA. And nationally speaking, really? The gay community managed to have "protests" (I'd call them, "loud and unnecessary get-togethers outside", but that's just me) and create an international furor about the passage Prop 8...and you'd still call them "unpopular"? Polarizing? Sure, but they seem to enjoy that when it tilts in their favor, when it entices the system to take pity on them. Unpopular is relative to the issue at hand.
3.4.2009 12:30pm
cmr:
...instead opting for symbolic rights such as "the right to marry the person you love"...



This is a mystery. What is merely symbolic about being allowed to marry as you choose?


That type of ideology has never existed in terms of U.S. marriage policy, and it's not only being brought up in a truncated version to allow homosexual marriage.
3.4.2009 12:34pm
MCM (mail):
I'm not saying they're the same guy, but you have to admit, cognitis's writing style is very similar to the prose of this visionary.


Oh!!! Time cube!! I have not seen that stuff in close to 10 years. Amazing.

Historically: if you are a man but you are a "lunatic" or an "idiot" or have some kinds of VD.

Are all those instances of discrimination?


Also historically: if she was not the same race as you. That would be an instance of discrimination you left off.

As in, there's no inherent "polygamy orientation."

But gay marriages are being compared to interracial marriages, and there's no inherent "different race orientation" either.


Most people seem to accept that there is a "different sexual orientation" which separates gays and lesbians from straights. And most people seem to think that the orientation it self is something you're born with, not something you choose.
3.4.2009 12:38pm
Strict:

When people explain using straight-ahead analysis


Cmr,

This is is the "analysis" I've seen in this thread:

1. This lawsuit is filed at the wrong time.
a. Because it might hurt the Democrats' midterms.
b. Because the economy is bad.

2. This lawsuit is "tacky."

3. God has detected a defect in gays, and thus punished them by disallowing them from reproducing. We should follow God and continue to punish them.

4. A law that purports to apply to everybody cannot be in violation of the EP Clause.

5. Gender discrimination does not violate EP..

6. There are no children of gay people.

7. Marriage is the foundation of our entire society, but to suggest that marriage is a "fundamental right" within the meaning of our Constitution is absurd.

8. The State Department will issue you a passport with the name "Count Chocula" if you'd like, so the plaintiff here who claims that the State Department is refusing to issue him a passport bearing his LEGAL name is lying, and his "premise is flawed."

9. Gays are "animadverting on our families."

10. Gays have a sexual lust to destroy others' heterosexual marriages.

11. "The problems of this three-month-old year kind of were the problems last year."

12. Before the federal government may recognize gay marriage, advocates have to satisfy a burden of proving that gay marriage is beneficial to heterosexual couples.

13. Homosexual relationships are analogous to beastiality, but they are not at all analogous to interracial relationships.

14. Social conservatives aren't popular with heterosexual heathens, so that justifies animosity against gays. It's only fair.

15. The social experiment of the few States which have allowed gay marriage has admittedly shown that SSM doesn't destroy family, but if the Federal government gave similar recognition, family and heterosexual relationships are doomed.

16. When appointed federal judges do something pro-gay, they are "thugs" and ruling by fiat and are just like those Judges in that horrible case 150 years ago, but when appointed State Department officials do something anti-gay, they are simply following the will of the people.

17. The Federal non-recognition statute (DOMA) isn't a criminal statute, thus it doesn't run afoul of EP.

18. Federal deference to state law, state sovereignty, and state determination is a prized conservative value, unless the states do something pro-gay.

19. Calling SSM opponents "bigots" is an ad hominem, and thus not a valid argument. Thus SSM opponents are right.

20. Gay marriage is a "philosophical absurdity," and thus bad policy.


These arguments are not persuasive. I've seen hundreds of anti-SSM arguments, and very few if any are persuasive.
3.4.2009 12:38pm
Strict:

I'd be reticent to call any case that bases any substantial part of its argument on Romer a slam dunk (yes, including Lawrence


21. A case that relies on relevant, governing Supreme Court authority is weak, because I disagree with those Supreme Court decisions.
3.4.2009 12:41pm
MCM (mail):

That type of ideology has never existed in terms of U.S. marriage policy, and it's not only being brought up in a truncated version to allow homosexual marriage.


Really? Maybe you should re-read the dicta in Loving. The idea that free people have the right to marry whom they chose is central.

Obviously, that's another case about miscegenation laws, but the reasoning is the same.
3.4.2009 12:45pm
Strict:
22. "domestic partnerships [] give all the rights marriage would."
3.4.2009 12:45pm
BooBerry (mail):
Thank you for that refreshing summary of the wacky, bigoted, inaccurate, and just flat-out wrong arguments against same-sex marriage. The list will continue to expand, no doubt, but as I have stated, history will redeem those of us with enough sense to realize that gay people deserve the right to marry their partner, if they so choose.
3.4.2009 12:46pm
enjointhis:
The whole concept of homosexual relations gives me the skeevies, since I'm a happily-married poster-child for heterosexuality. But I think marriage is a recognition of the (hopefully) enduring nature of the relationship between two people.

MA hasn't disintegrated as a result of gay marriage, and it just seems unfair to me that a long-lasting couple could be denied rights because of one's gender.

Every fiber of my being says, though, that this battle should be waged at the ballot box, rather than before Judge Tauro.
3.4.2009 12:46pm
Adam J:
cmr- "That type of ideology has never existed in terms of U.S. marriage policy, and it's not only being brought up in a truncated version to allow homosexual marriage."
US marriage policy obviously has nothing to do with ability to procreate, since it doesn't prevent couples unable to procreate from marrying. It obviously has nothing to do with compatability, since the government asks no questions to determine suitability. It obviously has nothing to do with religion, since atheists and agnostics may marry, and there's no requirement it occur in a house of God or by an ordained minister. So please, tell us the ideology that exists in terms of U.S. marriage policy is then,and why it justifies excluding gays, since you're apparently so well informed.

And while you're at it, please tell us how this is a "truncated version". You seem to like using alot of big words that don't seem to apply to try and beef up your arguments.
3.4.2009 12:46pm
Strict:

23."The whole concept of homosexual relations gives me the skeevies." Gayness is gross. [This is a big argument.]
3.4.2009 12:51pm
MCM (mail):
MA hasn't disintegrated as a result of gay marriage, and it just seems unfair to me that a long-lasting couple could be denied rights because of one's gender.

Every fiber of my being says, though, that this battle should be waged at the ballot box, rather than before Judge Tauro.


Paragraph 1 is not compatible with paragraph 2.

Once you've given allowed that gays have the right to marry, you can't then take that right away through legislative action.

That's the whole point of "rights".
3.4.2009 12:54pm
SeaDrive:

That type of ideology has never existed in terms of U.S. marriage policy,...


I think you missed my point entirely which is that marriage of any kind is not merely symbolic. I'm waiting for the research showing that attending to blogs destroys reading comprehension.
3.4.2009 12:54pm
Strict:
24. The right to marry the person you love is a symbolic right.
3.4.2009 12:54pm
Adam J:
enjointhis- "Every fiber of my being says, though, that this battle should be waged at the ballot box, rather than before Judge Tauro." I certainly sympathize with that view, the problem is that majorities often are willing to limit the freedoms of minorities without justification. That's why the Founders created the Bill of Rights, it prevents a majority from limiting certain rights of minorities. This a particularly serious problem here, where many people have developed alot of inherent biases against homosexuality. (I also find the idea of homosexual relations unpleasant, however I recognize that people should have the freedom to engage in these relationship if it makes them happy)
3.4.2009 12:57pm
Strict:
25. Allowing gay marriages puts something really important at stake. It doesn't matter what that something is, though.
3.4.2009 12:58pm
Some Dude:

Strict:

4. A law that purports to apply [applies] to everybody cannot [is not, in itself,] be in violation of the EP Clause.

5. Gender discrimination does not violate EP.




"Discrimination" is a highly charged word. Let's say rather:

5. A law does not necessarily violate EP by differentiating between the sexes.

A law would, however, violate EP by differentiating by skin color. There is no reason the law should affect people differently because of skin color. The law should be color-blind.

Should law be sex-blind? Never use the words "man" or "woman" anywhere? If you say yes, I would be surprised, but you would be being consistent. If you say no, than you want the law to differentiate between the sexes in some way.
3.4.2009 1:01pm
MCM (mail):
Should law be sex-blind? Never use the words "man" or "woman" anywhere? If you say yes, I would be surprised, but you would be being consistent. If you say no, than you want the law to differentiate between the sexes in some way.


False choice - I believe supporters of SSM would say the law could differentiate between the sexes sometimes, just not as to marriage.
3.4.2009 1:05pm
Strict:
A commenter here said, straight out, that gender discrimination cannot violate EP. Sometimes it doesn't, but sometimes it does. The commenter's blanket statement was wrong.

And a law that applies to everybody CAN violate EP. David Schwarz already destroyed your argument. EP analysis is NOT "Does this law apply to everybody? It does? Then it's OK." That's not EP analysis.
3.4.2009 1:07pm
Scape:
Trad and Anon-- fair enough. I agree entirely; I was using the word 'immutable' in the sense that it's used in EPC jurisprudence, but it does have more literal connotations. "Group that is historically discriminated against based on some factor that is beyond their control and of no actual relevance to whatever law is proposed" is kinda wordy, though.

Whoever said 'polygamy orientation' is more real than homosexuality because Darwin said so: you make no sense and you're wrong. Sorry.

And yeah, MCM's got it right. We already recognize gender discrimination under EP, but that doesn't require us to prohibit naming genders in regulation all together. Sometimes, it's still relevant. In choosing who people want to marry? It doesn't, unless you're relying on either prejudice or religious commandments that have no bearing on our system of laws.
3.4.2009 1:17pm
cmr:
Cmr,

This is is the "analysis" I've seen in this thread:

1. This lawsuit is filed at the wrong time.
a. Because it might hurt the Democrats' midterms.
b. Because the economy is bad.

2. This lawsuit is "tacky."

3. God has detected a defect in gays, and thus punished them by disallowing them from reproducing. We should follow God and continue to punish them...


Gotta stop you there. I don't recall who said this (I know it wasn't me), but unless you're going to tell me gay men don't produce sperm and lesbians don't have ovaries or periods, I'm not sure how God is punishing anyone. And this isn't about man enacting punishment. This is, in part, about the fact that two men or two women together don't create another life, and the impetus to do that is a big part of the reason we have marital benefits in the first place. They can raise children, legally and functionally, but those children aren't the result of their union, and there's obviously some controversy over whether it's ideal for children to be raised in same-sex households in the first place.

But anyway, continue...

4. A law that purports to apply to everybody cannot be in violation of the EP Clause.

5. Gender discrimination does not violate EP..

6. There are no children of gay people.


4. It's a law that does apply to everyone, and treats everyone equally, not that it purports to do something but doesn't because everyone doesn't have the same subject enjoyment of being protected.

5. This isn't gender discrimination.

6. [sighs] ...like dealing with a child. Two men and two women have zero risk of procreating when they are intimate.

7. Marriage is the foundation of our entire society, but to suggest that marriage is a "fundamental right" within the meaning of our Constitution is absurd.


To suggest that the reading of marriage does, has ever, or will ever (to some) mean couples other than one man or one woman is absurd. It's a contextual distinction that same-sex marriage supporters act really thick when confronted with it, but the "heterosexual" distinction in marriage is intrinsic.

8. The State Department will issue you a passport with the name "Count Chocula" if you'd like, so the plaintiff here who claims that the State Department is refusing to issue him a passport bearing his LEGAL name is lying, and his "premise is flawed."

9. Gays are "animadverting on our families."

10. Gays have a sexual lust to destroy others' heterosexual marriages...


Who said #10?

11. "The problems of this three-month-old year kind of were the problems last year."

12. Before the federal government may recognize gay marriage, advocates have to satisfy a burden of proving that gay marriage is beneficial to heterosexual couples...


You have a really hard time reading. I said advocates can't prove how it's been beneficial in the same way that opponents can't (well, they can, but for the sake of argument, let's pretend they can't) prove anything horrible has happened as a result. I said it's a useless distinction to make or to base dialogue.

13. Homosexual relationships are analogous to beastiality, but they are not at all analogous to interracial relationships.


Who said that?

14. Social conservatives aren't popular with heterosexual heathens, so that justifies animosity against gays. It's only fair.


It's, "social conservatives don't like heterosexuals who misuse the institution of marriage any more than they agree with homosexual marriage, so it's a self-centered characterization to act as if hard-liners against gay marriage approve of other practices which de-sanctify marriage."

I wouldn't say it's fair. It shouldn't be a surprise to realize social conservatives, a lot of them, at least, are more pro-traditional-marriage than anti-gay-marriage, but it's too much to ask that people understand the breadth of a group's opinions instead of just how they apply to them.

Well, except, when certain people feel the need to speak to their cause as a whole instead of in appropriately specific contexts.

15. The social experiment of the few States which have allowed gay marriage has admittedly shown that SSM doesn't destroy family, but if the Federal government gave similar recognition, family and heterosexual relationships are doomed.


...but it has proven that gay marriage can and likely will be taught in schools and that religious freedoms will be slighted. The "destroyer of families" crowd is on their own with that one. Though, I'm curious who, in this thread, made that argument.

16. When appointed federal judges do something pro-gay, they are "thugs" and ruling by fiat and are just like those Judges in that horrible case 150 years ago, but when appointed State Department officials do something anti-gay, they are simply following the will of the people.


They're thugs when they rule based more on political opinion than constitutionality, which many social issues lack. And I'm sure it behooves you to ignore the fact that most states have passed pro-traditional-marriage statutes and Constitutional amendments, and that for those of you who love opinion polls so very much, none of them suggest the will of the people would be to enact gay marriage. Not that I think opinion polls are entirely valid, but wholesale social engineering from the bench isn't the same as acknowledging the obvious trend in voting and legislative habits.

17. The Federal non-recognition statute (DOMA) isn't a criminal statute, thus it doesn't run afoul of EP.

18. Federal deference to state law, state sovereignty, and state determination is a prized conservative value, unless the states do something pro-gay.

19. Calling SSM opponents "bigots" is an ad hominem, and thus not a valid argument. Thus SSM opponents are right.

20. Gay marriage is a "philosophical absurdity," and thus bad policy.


18. Instead of directly responding to that rhetorical ploy, I'd say, maybe the problem is that the only way pro-gay decisions can get passed is by controversial means. Judicial review, expecting the "court" to "legislate" (when there's a whole branch of government for that), usurping the will of the people, ignoring the value of public opinion, and expecting those within the system to do the same (because: BLACK PEOPLE!!!), and generally feeding our already unbecoming litigious social mores.

No, better to just blame it on the conservatives.

19. They're right that liberals are, both theoretically and functionally, every bit as antagonistic and intolerant of something that offends their orthodoxy and beliefs, yet they only wag their fingers at conservatives for being that way.

20. Eh, maybe?


These arguments are not persuasive. I've seen hundreds of anti-SSM arguments, and very few if any are persuasive.



They're not very persuasive because you've taken it upon yourself, in your "reading" of the analyses of this thread, to have both sides of the conversation. Basically, what you've done, is criticized the caricature you've drawn of the opposition. You'll have to forgive me if I don't exactly call that brave. Or novel. Or analytical.
3.4.2009 1:18pm
IB Bill (mail) (www):
Some people have commented on the underlying claims -- but the issue here is equal protection. Having read the complaint (but not the reply brief, which doesn't exist, after all), I don't see how DOMA gets upheld. The cat's out of the legal bag.

The legal battle has to be worth winning. When the issue shifts from SSM to EP, which it does now, different things are at stake. That is, if a same sex couple is legally considered married in Massachusetts, how can we say that they can't file a joint tax return with the federal government? I don't see how, at least not without doing violence to EP. And EP is a more important issue than SSM (at least to me).

It was an effective legal strategy, I'll give GLAAD that.
3.4.2009 1:20pm
IB Bill (mail) (www):
cmr: Well said.
3.4.2009 1:23pm
Steve P. (mail):
Just when people are well distracted by their plummeting 401k's from their annoyance at having gay marriage shoved up their penumbras by the same type of brilliant thinkers that brought us Dred Scott and Kelo -- why, it must be time to provoke another Prop 8 debacle!

It's just like the gays to slip it in when we aren't looking. Now is not the time to be debating a fundamental plank in a major party's platform!
3.4.2009 1:23pm
MCM (mail):

Gotta stop you there. I don't recall who said this (I know it wasn't me), but unless you're going to tell me gay men don't produce sperm and lesbians don't have ovaries or periods, I'm not sure how God is punishing anyone. And this isn't about man enacting punishment. This is, in part, about the fact that two men or two women together don't create another life, and the impetus to do that is a big part of the reason we have marital benefits in the first place. They can raise children, legally and functionally, but those children aren't the result of their union, and there's obviously some controversy over whether it's ideal for children to be raised in same-sex households in the first place.
Who said that?
Who said #10?


Use your computer's search feature (Control-F on a PC in most browsers) to find the comments in question. Or just read before posting.
3.4.2009 1:25pm
BooBerry (mail):
Let's just focus on one point in cmr's purported "analysis."

To suggest that the reading of marriage does, has ever, or will ever (to some) mean couples other than one man or one woman is absurd. It's a contextual distinction that same-sex marriage supporters act really thick when confronted with it, but the "heterosexual" distinction in marriage is intrinsic.

'Nuff said. He's wrong on every possible level here and the rest of his "analysis" is similarly amongst the most unintelligent long-ish posts I have read on this board.
3.4.2009 1:26pm
MCM (mail):
They're not very persuasive because you've taken it upon yourself, in your "reading" of the analyses of this thread, to have both sides of the conversation. Basically, what you've done, is criticized the caricature you've drawn of the opposition. You'll have to forgive me if I don't exactly call that brave. Or novel. Or analytical.


Actually, if you bothered to read the thread, you'd see that the arguments listed are less a caricature and more the actual words of cognitis. No caricature necessary - I don't even know what Sarcastro would do with him.
3.4.2009 1:27pm
Michael Ejercito (mail) (www):

The Supreme Court thinks otherwise. e.g. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 273 (1979). See also Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982); Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981)....

So why was the nineteenth amendment necessary?
3.4.2009 1:28pm
Some Dude:

And a law that applies to everybody CAN violate EP. David Schwarz already destroyed your argument. EP analysis is NOT "Does this law apply to everybody? It does? Then it's OK." That's not EP analysis.



It's the first box in the flow chart:
Question 1: Does the law apply to everyone?
No->EP violation!
Yes->goto question 2:

Question 2: does the law differentiate by race?
Yes->EP violation!
No->go to question 3

Question 3: does the law differentiate by "sexual preference"?
Yes->EP violation!
No->goto question 4:

Question 4: does the law differentiate by sex?
Yes->not necessarily EP violation (according to MCM) goto question 5
No->goto question 6

Question 5: Does the law pertain to marriage?
Yes->EP violation! For some reason! It "feels" like it should be! I say so!
3.4.2009 1:28pm
MCM (mail):
Dude, you should like, learn about levels of scrutiny, dude.
3.4.2009 1:33pm
IB Bill (mail) (www):
25. Allowing gay marriages puts something really important at stake. It doesn't matter what that something is, though.

What's at stake is this: Will a people who accept things like SSM have the ability to sustain democratic-republican governance, economic prosperity, economic and social freedom, peace within the 50 states, tolerance of dissent, freedom of conscience and other inalienable human rights?

SSM-proponents think the question is either mind-bogglingly silly (to put it charitably), or yes, of course.

Some SSM-opponents, like me, think the answer is no: A people who'd believe something like that won't be able to sustain their inheritance. In fact, I think the fact that we've been having this discussion at all is a very troubling sign.

The end result will take a few generations to play out -- not five minutes or five years. It will be combined with other absurd conclusions, so that the SSM decisions won't be easily culpable. It's all part of a decadent worldview that presumes an awful lot of good things will automatically continue, and has forgotten just how brutal life can be.

Chesterton explains it better -- but basically, it boils down to taking one virtue out of the Church's grouping of mystical concepts, denying it's a mystical concept, and then using it to clobber all the others. Using tolerance to clobber marriage, for example. To paraphrase Jonah Goldberg, SSM proponents are chopping away at the very soap box they're standing on.

But this is far afield of the original discussion ... but I wanted to clarify what's at stake. I eagerly await the great ridicule to follow. Cheers.
3.4.2009 1:55pm
Joseph Slater (mail):
The whole concept of homosexual relations gives me the skeevies, since I'm a happily-married poster-child for heterosexuality.

Serious question: why? I'm a happily married heterosexual, a parent even, and homosexual relations don't give me skeevies. My sister is legally married to her partner (in Mass.), and not only do I, my wife, and my son think they are way cool, but so does my mom and my wife's parents (my dad would have been fine with it too when he was alive). Indeed, we all had a great time at their wedding.
3.4.2009 1:56pm
David Schwartz (mail):
How about this instead:

Question 1: Does the law deny a fundamental right to a suspect class?

Yes -> EP violation!
3.4.2009 2:01pm
cognitis:
cmr:

Others rendered incorrectly my post and thus detected their ignorance and paucity of vocabulary. I posted above as follows:

Homosexuals' concupiscence for the destruction of the marriage institution is exacted by their envy of those who have children and a legacy.
I'll translate into something vulgar, since many here only can identify examples and not cogitate principles.
Homosexuals suffer instincts of sexual inadequacy and genetic deficiency; these instincts either repress or pervert the sex drive; this repression or perversion provides the impetus to in some way attack heterosexual relationships.

3.4.2009 2:02pm
Some Dude:
David Schwartz,

That should be covered someplace other than EP, I would think, but we can add that question.

Does DOMA deny a fundamental right to a suspect class? A foggy question! What is the fundamental right, to be married? No, there is no right to be married. If there was, I would demand the government protect my right by finding me a wife pronto!

The ability to marry a woman? I have the ability to marry a woman, under certain conditions. Those conditions include finding a woman who is not already married to someone else who consents to marry me. All "suspect classes" except the suspect class called "women" have that right. And laws can differentiate between man and woman and not violate EP.

The ability to marry a man or a woman? That is the question. Is that a fundamental right? I don't think this question can be answered by equal protection. It should be answered somewhere stating if the ability to marry a man or a woman is a fundamental right. So far all the arguments I have heard try to establish this as a right by naked assertion.
3.4.2009 2:26pm
Randy R. (mail):
cmr: " Instead of directly responding to that rhetorical ploy, I'd say, maybe the problem is that the only way pro-gay decisions can get passed is by controversial means."

too much to respond to, but I note that the state legislature recently voted to allow SSM. Nothing controversial about it,and it is now the law there. In MA, every poll taken shows a majority of people support SSM.

IB Bill: "What's at stake is this: Will a people who accept things like SSM have the ability to sustain democratic-republican governance, economic prosperity, economic and social freedom, peace within the 50 states, tolerance of dissent, freedom of conscience and other inalienable human rights?"

Well, you're a little late to the game. It all started back with Age of Enlightenment. We had people going around saying that the Bible was not the authority on a lot of things, and that we should look to direct observance rather than blind faith. Then we experienced the French and American revolutions which upended centuries of rule by monarchs, throwing the whole political equations into whack. Then there was Darwin, who expanded on the theory of direct observation of nature to understand nature. then we had the Civil War,which ended the biblical injunctions to hold slaves. THEN, to add fuel to that fire, we started allowing women sufferage, eliminating their traditional role as mere chattel (a revolution that continues today, i'm afraid).

So gay rights are just the latest is a centuries old decline in traditional values.
3.4.2009 2:34pm
Randy R. (mail):
Some Dude:

Okay, let's go with this law: Everyone is prohibited from practicing Christianity.

It's the first box in the flow chart:
Question 1: Does the law apply to everyone?
No->EP violation!
Yes->goto question 2:

Question 2: does the law differentiate by race?
Yes->EP violation!
No->go to question 3

Question 3: does the law differentiate by "sexual preference"?
Yes->EP violation!
No->goto question 4:

Question 4: does the law differentiate by sex?
Yes- EP violation!
No->goto question 6

Question 5: does the law differentiate by religion?
Yes: EP violation!
No: go to Question 6 Because it applies to ALL people, not just Christians!

So prohibing everyone from practicing a religion doesn't violate EP. Boy, that was easy!
3.4.2009 2:40pm
Strict:

I said advocates can't prove how it's been beneficial


But they can. There are many benefits to gay marriage. For starters, there is the happiness of the people involved.

There are also many clear, concrete ways that gay marriage is beneficial. I'm not going to list them for you.

Conversely, I have yet to see a persuasive argument that gay marriage is detrimental. Bill's stance is this:


a people who accept things like SSM [will not] have the ability to sustain democratic-republican governance, economic prosperity, economic and social freedom, [and] peace within the 50 states


Lol. The entire argument is simply: "gay marriage is the end of the world: no more economy, no more peace, no more democracy, no more freedom."


13. Homosexual relationships are analogous to beastiality, but they are not at all analogous to interracial relationships.

Who said that?


Wow.

Cognitis said "the matter of homosexual benefits instead pertains to the matter of friend or pet benefits."

You yourself said "false analogies like interracial marriage."
3.4.2009 2:41pm
Randy R. (mail):
AdamJ : "(I also find the idea of homosexual relations unpleasant, however I recognize that people should have the freedom to engage in these relationship if it makes them happy)"

Thanks for the support Adam! If it makes you feel any better, we gays think the whole idea of heterosexual relations to be quite unpleasant as well, and most of us gave it a try.

Some dude:"Does DOMA deny a fundamental right to a suspect class? A foggy question! What is the fundamental right, to be married? No, there is no right to be married. "


SCOTUS , in Loving v.Virginia,specifically stated that marriage is a fundamental right.

"If there was, I would demand the government protect my right by finding me a wife pronto!"

I appreciate the joke. However, that isn't the right we are talking about. the right we are talking about is two people who wish to conjoin themselves into marriage: They have a fundamental right to do so.

"The ability to marry a woman? I have the ability to marry a woman, under certain conditions. Those conditions include finding a woman who is not already married to someone else who consents to marry me. All "suspect classes" except the suspect class called "women" have that right. And laws can differentiate between man and woman and not violate EP."

But let'sbreak this down:
Man and woman wish to marry. They are allowed.
Man and man wish to marry. They are not allowed.

First,contra cmr, the second category is denied the right to get married. If order for disparate treatment to continue,you have to have a rational basis. What is it?
3.4.2009 2:47pm
Some Dude:

Randy R. (mail):
Some Dude:

Okay, let's go with this law: Everyone is prohibited from practicing Christianity.

...

So prohibing everyone from practicing a religion doesn't violate EP. Boy, that was easy!


That was easy!
Prohibiting everyone from practicing a religion violates Amendment #1.
3.4.2009 2:51pm
Putting Two and Two...:

However, they must do what the bishops tell them.


The bishops were acting under orders from the Vatican. Among them were men who had approved the previous policy of adopting out to gay couples.
3.4.2009 2:53pm
Putting Two and Two...:

I said they stopped their adoption services because they were at odds with their religious beliefs


Hmmmm... The LDS church continues to provide adoption services in Massachusetts and openly discriminates against gay couples in its policies and practices. Of course, they do so with private funding.

I guess, by the standards of some, that their religious beliefs must be stronger than those of the Catholics.
3.4.2009 2:59pm
Guest12345:
Scape:

Whoever said 'polygamy orientation' is more real than homosexuality because Darwin said so: you make no sense and you're wrong. Sorry.


I didn't say Darwin said so. I merely pointed out that reproductively/biologically multiple partners (of a sexually compatible gender) gives greater success. Only a willfully ignorant person can deny that there are a lot more men out there with multiple female partners than there are men-men or women-women partners. Fundamentally at a reproductive level one-to-many is a more common form of relationship that one-to-one. And within the domain of marriages, cultures going back thousands of years have recognized and institutionalized polygamist marriage.

As far as a 'polygamy orientation', I'll even go so far as to agree with you: there is no 'polygamy orientation', but there is also no 'gay marriage orientation' or 'straight marriage orientation.' Humans just aren't 'oriented' for marriage as an institution. They're oriented for relationships and reproduction and, sometimes, caring for their young. But not so much hospital visitation or their partner being included in their employer's insurance plan.

But unless you can actually make an argument and provide some support, I'll just drop to your third grade level of debate and end with:

You are wrong and a doodyhead. Sorry.
3.4.2009 3:06pm
David Schwartz (mail):
Some Dude:
Does DOMA deny a fundamental right to a suspect class? A foggy question! What is the fundamental right, to be married? No, there is no right to be married. If there was, I would demand the government protect my right by finding me a wife pronto!
I don't think there's any fundamental right that can be sufficiently precisely described in a few words such that you can't find a case those words cover incorrectly.

The best I can do is this: If a human being elects to form a long-term committed relationship with another human being, and that relationship is lawful, those human beings have the right to the same government recognition for that relationship as other human beings do.

If the government could/did prohibit homosexual relationships, it could certainly prohibit homosexual marriage. However, the government cannot/doesn't prohibit long-term committed homosexual relationships. So it cannot refuse to grant them the same recognition it grants heterosexual relationships.
3.4.2009 3:07pm
IB Bill (mail) (www):
So gay rights are just the latest is a centuries old decline in traditional values.

@ Randy R.: It could be that I'm referring not to the beneficial questioning of certain traditional values, but to non-beneficial ones. Certainly, the trend toward greater emancipation as well as increased demotic values has had some benefit (SSM is an overreach, IMHO). But postmodern linguistic philosophy applied to law, and/or a critical mass of people committed to postmodernism, will in fact mean the end of the world as we know it. Maybe you'll like the new world better, though, as long as it lasts. There's a lot of ruin in a nation, as someone important once said.

@ Strict: LOL, too. That's exactly what I didn't say. See Randy R., who is on the right track, if the wrong train.
3.4.2009 3:12pm
Some Dude:
Randy R. (mail):
But let'sbreak this down:
Man and woman wish to marry. They are allowed.
Man and man wish to marry. They are not allowed.

First,contra cmr, the second category is denied the right to get married. If order for disparate treatment to continue,you have to have a rational basis. What is it?


My original point was to point out that the disparate treatment was between couples, which you illustrate here nicely. You are applying EP to couples. The second couple is denied an alleged right that you are asserting is inherent to all couples. "The man and the man" are being unequally protected compared to "the man and the woman."


Loving v.Virginia,specifically stated that marriage is a fundamental right.

"If there was, I would demand the government protect my right by finding me a wife pronto!"

I appreciate the joke. However, that isn't the right we are talking about. the right we are talking about is two people who wish to conjoin themselves into marriage: They have a fundamental right to do so.


You went seamlessly from "marriage is a fundamental right" to the fundamental right being about "two people who wish to conjoin themselves into marriage."

I never read "Loving," perhaps I should. Marriage is a fundamental right, sure, but does "Loving" truly grant that the marriage as a fundamental right translates into the right for two people to get married? I highly doubt it.
3.4.2009 3:14pm
Ken Arromdee:
There were probably blacks who opposed making interracial marriage legal, blacks who opposed desegregation, maybe even blacks who opposed the abolition of black slavery. (Or at least there were people with those views who claimed they were blacks.)

It's supposed to be "no true Scotsman, not no true black.
3.4.2009 3:15pm
Putting Two and Two...:

I eagerly await the great ridicule to follow.


Just holding back the great ridicule to ask a question. What mystical concept are we removing from the Church's grouping? Marriage? It's been a sacrament for less than half the history of the Church. And the Church has only been around for 2000 or so years. And lots of the world doesn't give a fig about the Church. And, unless I'm confusing you with another poster, your religion dumped the Church quite a while back.

Perplexing.
3.4.2009 3:16pm
Putting Two and Two...:
You left off a bit. I fixed it for you:


Homosexuals suffer instincts of sexual inadequacy and genetic deficiency; these instincts either repress or pervert the sex drive; this repression or perversion provides the impetus to in some way attack heterosexual relationships. This is why we should encourage them to marry heterosexually...
3.4.2009 3:17pm
MCM (mail):

Others rendered incorrectly my post and thus detected their ignorance and paucity of vocabulary. I posted above as follows:

Homosexuals' concupiscence for the destruction of the marriage institution is exacted by their envy of those who have children and a legacy.

Homosexuals suffer instincts of sexual inadequacy and genetic deficiency; these instincts either repress or pervert the sex drive; this repression or perversion provides the impetus to in some way attack heterosexual relationships.


So what instincts of inadequacy lead one to construct a sentence like, "Others rendered incorrectly my post and thus detected their ignorance and paucity of vocabulary"?

I'm starting to think Cognitis is actually posting from centuries past via a time machine. It explains the world-view as well as the diction.
3.4.2009 3:18pm
Strict:
You said:


A people who'd believe [in SSM] won't be able to sustain their inheritance.


I replied:


Lol. The entire argument is simply: "gay marriage is the end of the world:


And now you reply with?


But postmodern linguistic philosophy applied to law, and/or a critical mass of people committed to postmodernism, will in fact mean the end of the world as we know it.


Lol.

Gay marriage - end of the world.
Enough people believing in "postmodernism" - end of the world.

Lol. Very convincing arguments there.
3.4.2009 3:21pm
MCM (mail):
I never read "Loving," perhaps I should. Marriage is a fundamental right, sure, but does "Loving" truly grant that the marriage as a fundamental right translates into the right for two people to get married? I highly doubt it.


It's relatively short:
http://wings.buffalo.edu/law/bclc/web/loving.htm
3.4.2009 3:27pm
IB Bill (mail) (www):
Putting two and two:

By "remove," I mean take up, as you would grab a tool from a toolbox, as in, "We shall take this concept and make it supreme, and use to bash the others." Which mystical concept? "Justice," I'd argue. SSM proponents are arguing justice demands that we alter the definition of marriage. But doesn't that make "justice" just as susceptible to redefinition in the future?

Justice, as Gorgias said, is the advantage of the stronger. Socrates struggled with an answer and was forced to rely on a mystical answer of divine retribution, for which he had no evidence. He sure didn't answer it rationally. In fact, he got his ass kicked in the argument. Civilization sided with Socrates, for a while at least. Socrates' teaching on justice was further refined by the Church to include the least powerful, loving forgiveness, reconciliation, and mercy, and we largely hold to that Judaeo-Christian version of justice today.

SSM proponents say it's unjust to restrict marriage to a man and a woman. I've been trying to argue that (1) it's not unjust, and (2) you can't change the definition of marriage. Marriage is as much as a mystical concept as justice -- if you use one against the other, then the other is threatened, too.

The arguments here are largely that we need to throw out the mystical nature of marriage because we have separation of church and state, but things were never quite so clear. The state relies on the church for many of its conceptual definitions. You take everyone out of this country and replace them with pagans or non-believers, and you're going to have a very different country, with a very different concept of justice. Don't be surprised if "justice tempered with mercy" becomes "justice is the advantage of the stronger." Follow?
3.4.2009 3:57pm
Strict:

You take everyone out of this country and replace them with pagans


"paganus" is Latin for "farmer" or "countrydweller." Bu-bu-but you are now using it to mean non-Christian.

You see, definitions can change!

You say that "marriage is a mystical concept." OK. There can be a mystical significance of marriage. And people in a marriage relationship might find it to be a mystical experience.

But it's also a legal thingy. And legal thingies can change without the world ending.
3.4.2009 4:10pm
bacchys (mail):
Some Dude -

I never read "Loving," perhaps I should. Marriage is a fundamental right, sure, but does "Loving" truly grant that the marriage as a fundamental right translates into the right for two people to get married? I highly doubt it.


It doesn't, that I recall. The "fundamental right" language is dicta, and it assumes the definition of marriage (one man and one woman). It does not redefine it.

It's a question dodged in In Re Marriage and by the Mass Supreme Court when they ordered same sex marriage be enacted: why gender can't govern but numbers can't.

The FLDS practice "plural marriage." The man individually marries several women. If "any two people" have a fundamental right to marry each other, how is this practice outlawed?
3.4.2009 4:15pm
cmr:
21. A case that relies on relevant, governing Supreme Court authority is weak, because I disagree with those Supreme Court decisions...

22. "domestic partnerships [] give all the rights marriage would."...

23."The whole concept of homosexual relations gives me the skeevies." Gayness is gross. [This is a big argument.]...

24. The right to marry the person you love is a symbolic right...

25. Allowing gay marriages puts something really important at stake. It doesn't matter what that something is, though.


26. That commenter Strict is a very silly individual probably shouldn't taken seriously.

Really? Maybe you should re-read the dicta in Loving. The idea that free people have the right to marry whom they chose is central.

Obviously, that's another case about miscegenation laws, but the reasoning is the same.


No, the reasoning isn't the same. It's also Loving pertained to not only an interracial couple, but an interracial HETEROSEXUAL couple. "To marry", in that context, strictly pertains to a man and a woman. There's no same-sex marriage precedence set by that case, and you're really kidding yourself if you think I'm supposed to nod along while you blatantly wedge your own ideas into that case.

Even if, for the sake of argument, "marriage is a basic civil right" does rationally pertain to SSM, that would just make laws criminalizing it unconstitutional. But there's no law that does that.

cmr- "That type of ideology has never existed in terms of U.S. marriage policy, and it's not only being brought up in a truncated version to allow homosexual marriage."
US marriage policy obviously has nothing to do with ability to procreate, since it doesn't prevent couples unable to procreate from marrying. It obviously has nothing to do with compatability, since the government asks no questions to determine suitability. It obviously has nothing to do with religion, since atheists and agnostics may marry, and there's no requirement it occur in a house of God or by an ordained minister. So please, tell us the ideology that exists in terms of U.S. marriage policy is then,and why it justifies excluding gays, since you're apparently so well informed.


Slam on your brakes. First of all, just because procreation isn't a requirement doesn't make it a negligible purpose. Because it's absolutely true that men and women together create children and that no two men or two women, together, create another life. You're conflating something that does happen with exceptions, with something that doesn't happen with no exceptions...and calling it the same thing.

And I don't know why you're mentioning religion, but "marriage" in this case is the legal recognition of a religious institution. Nobody is saying that religion be a requirement for marriage, either, but once again, you can't essentially make the argument, "well, gay marriage does offend several orthodoxies about marriage, but so what? Other stuff does too" and expect opponents to it to be convinced of it.

And while you're at it, please tell us how this is a "truncated version". You seem to like using alot of big words that don't seem to apply to try and beef up your arguments.


No, you feel threatened because I'm not one to be run over by a bunch of rhetorical ploys that are meant to shut down arguments you don't like instead of espousing how your ideas are what's best.

And quite simply, because you all are making a big deal over the lack of SSM not being federally recognized, but not for any other type of union that is otherwise unrecognized by our federal government. You're not marriage equality crusaders; you're GAY MARRIAGE supporters.

I think you missed my point entirely which is that marriage of any kind is not merely symbolic. I'm waiting for the research showing that attending to blogs destroys reading comprehension.


You asked me a question based on something I didn't say. I said it's a symbolic right to marry the person you love. It's not actually written anywhere, and it hasn't been given as the justification for marital benefits. Not that I've seen, at least.

You asked me something completely different, using the word "choose". If I missed your point, it's because it didn't pertain to what you'd responded from me.

Use your computer's search feature (Control-F on a PC in most browsers) to find the comments in question. Or just read before posting.


Now if only browsers came with sarcasm detectors, we'd be good to go. The point is, most of his characterizations were...caricatures and not earnest reiterations of points actually made.

Actually, if you bothered to read the thread, you'd see that the arguments listed are less a caricature and more the actual words of cognitis. No caricature necessary - I don't even know what Sarcastro would do with him.


...which, like he said and I figured, weren't the intent of his posts. Even if he'd quoted him verbatim, if he's intent on being a dishonest and non-analytical to make his point, it wont matter what he actually said. It's still a mis-characterization.

And by the way, all the pearl-clutching going on about his statements is interesting. You'd think you all would appreciate the idea that you misunderstood his point, and that it isn't as filled with animus as it might have initially come across. But no. You all gleefully whip yourselves into a passive-aggressive frenzy, because this isn't about whether or not gay marriage is a good idea, it's a futile exercise to see how offended and self-righteous a group of people can be and to see if you can guilt people who don't agree with gay marriage into silence or incessant apologies for their position.

cmr: " Instead of directly responding to that rhetorical ploy, I'd say, maybe the problem is that the only way pro-gay decisions can get passed is by controversial means."

too much to respond to, but I note that the state legislature recently voted to allow SSM. Nothing controversial about it,and it is now the law there. In MA, every poll taken shows a majority of people support SSM.



Which state legislature?

And people "support it" because it's been foisted on them by the courts and they really don't have a choice in the matter, so there's no point in making a big deal about it. I'd say it's more complacence than support, but it doesn't matter.

Man and woman wish to marry. They are allowed.
Man and man wish to marry. They are not allowed.

First,contra cmr, the second category is denied the right to get married. If order for disparate treatment to continue,you have to have a rational basis. What is it?


Randy, why do you continue with the rhetorical sleight-of-hand stuff? YOU'RE part of the group that wants both of your examples legalized. WHY IS IT? WHAT PURPOSE WILL IT SERVE? WHY SHOULD WE SUPPORT IT? WHAT'S IN IT FOR US? WHY SHOULD WE CARE?

The burden of proof on YOU, my friend, to answer those questions because YOU are the one that wants policy to be amended to include something it never has.
3.4.2009 4:20pm
bacchys (mail):
Strict -


You see, definitions can change!

I think so. The question is who has the right to change them. With respect to marriage, imo the state legislatures have the right/authority to do so, but not the courts. It's the role of the courts to apply the law as written to the cases before them, not to rewrite it.
3.4.2009 4:21pm
Some Dude:
Thanks! I read it.


The fact of their cohabitation here as man and wife shall be evidence of their marriage.



"Loving" assumes "man and wife" marriage. SLAM DUNK!
3.4.2009 4:36pm
Strict:

because this isn't about whether or not gay marriage is a good idea,


Of course. Some people think it's a good idea, and have put forth many strong arguments for it.

Some people think it's a bad idea, and put forth many weak and speculative arguments, such "If we allow SSM, then the world will surely end."

I'M LISTENING. I haven't heard a strong reason why SSM should not be allowed. GIVE ME REASONS.


It's the role of the courts to apply the law as written to the cases before them, not to rewrite it.


That's ONE role. But one of the courts' main role throughout US history is judicial review. That is, scrapping certain laws and certain portions of the law that are unconstitutional. That certainly goes well beyond merely "applying the law as written to the cases before them." When they remove a provision from a statute as unconstitutional, they are essentially CHANGING [or "re-writing"] the law.

I'm sorry. I know judicial review is not expressly provided for in the Constitution. But it's a fact of life, and it's law. Marbury v. Madison. The world is what it is, not what you pretend it to be. Courts are NOT limited to merely applying the law.
3.4.2009 4:37pm
IB Bill (mail) (www):
Strict -

You see, definitions can change!


Indeed, with the incarnation of Christ and the establishment of the Church, many concepts changed and were refined, including, as I said in my latest post, justice. And I was discussing abstract concepts in terms of epistemelogy, not plain old words for concrete things ... which yes, can change and be refined. You really need to get out of that absolutist mindset.
3.4.2009 4:45pm
IB Bill (mail) (www):
"If we allow SSM, then the world will surely end."

Again, exactly what I didn't say. But it's easier to make fun of the way you say it.
3.4.2009 4:46pm
Smallholder (mail) (www):
I could be wrong, but I think the argument that:


"Person of category A can marry other person in category A.

Person of category B can marry other person in category B.

Person of category A cannot marry person in category B.

This is not discrimination because As have the right to marry people within their category an Bs have the right to marry people within their category - it's equal."



I believe - and what do I know, I'm just a farmer, that was Virginia's argument in Loving. Virginia lost.

Now, just as a thought exercise, replace the white in A and the black in B with man and woman.

It seems that anti-gay rights proponents think the last statement is true.

Why do they think the logic will hold up this time? Wishful thinking?

Regardless, this is not what the case at hand is about. Massachusetts allows gay marriage. DOMA categorizes individuals in different types of marriage differently. It's not about couple benefits. As an individual, I am entitled to my spouse's social security death benefit - unless my legal marriage is to someone of the same sex.

This is what the case is about - can the state treat people differently because a majority of Congress felt that homosexuality threatened traditional morality.

Now, IANAL - I'm just a farmer. But as I understand it, in order to win an EP case, you actually have to show that you were treated differently.

The plaintiffs in this case have cleary been treated differently - they haven't received social security, death benefits, federal employee health benefits, federal (Congressional!) pensions, and have paid more in taxes because the national government, per DOMA, refused to give full faith and credit to their legal Massachusetts marriage. In one case, a woman had to pay almost $20,000 more in taxes over four years. Although I think the claim for Studd's pension is weaker (because Studds did not attempt to add the survivor benefit), most of those claims of standing due to harm are slam dunks.

Now, government discrimination (treating two different people differently) can be justified if there is a compelling state interest. DOMA clearly outlines the state interests it wants to serve (See paragraph 52 of the complaint):

1) Defend and nurture heterosexual marriage.
2) Defend traditional notions of morality.
3) Protect states' sovereignty and democratic self-governance.
4) Protect scarce government resources.

Paragraphs 54-57 deal with those public purposes - convincingly, I think. Perhaps some of the folks commenting on this thread should actually read the case this thread is about.

If the government can prove that the measure does discriminate (treat differently) different people to further compelling state interest, than equal protection does not apply.

There are different standards of scrutiny in applying the state interest test. I would argue that discriminating against gays requires strict scrutiny and not the lower bars of rational or intermediate scrutiny. Lawyers might weigh in here, but since the standards for deciding to use strict scrutiny are:


1. The groups' characteristics are immutable. (Race, national origin)
2. The group shares a history of discrimination.
3. The group is politically impotent.
4. The group is a discrete and insular minority.


1. is disputed by the anti-gay marriage forces, but, particularly for male homosexuality, is becoming the co nsensus.
2. No brainer for gays.
3. Gays have been able to achieve majority support for gay marriage in Massachusetts, but are politically impotent at the national level - see the passage of DOMA.
4. Married gays are indeed a minority and can be identified as such.

If the governments' stated purposes are legitimate (contra the complaint's arguments), they must ALSO be narrowly tailored and be the least restrictive way to accomplish the goal. Somehow a $20,000 tax penalty to preserve some peoples' morality strikes me as failing that test.

In the past, courts have not agreed that discrimination against gays merits strict scrutiny. In Romer, as I understand it, and IANAL, the court used the lower hurdle of rational basis. And the anti-gay law failed.

To quote from Wikipedia (if Wikipedia's summary is inaccurate, please let me know):


Rejecting the state's argument that Amendment 2 merely blocked gay people from receiving "special rights", Kennedy wrote:

To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

Kennedy argued that protection offered by antidiscrimination laws was not a "special right" because they protected fundamental rights already enjoyed by all other citizens. Though antidiscrimination laws "enumerated" certain groups which they protected, this merely served to put others on notice (i.e., the enumeration was merely declaratory).

Instead of applying "strict scrutiny" to Amendment 2 (as Colorado Supreme Court had required) Kennedy wrote that it did not even meet the much lower requirement of having a rational relationship to a legitimate government purpose:

Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

And:

[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

Kennedy did not go into depth in rejecting the claims put forward in support of the law (protecting the rights of landlords to evict gay tenants if they found homosexuality morally offensive, etc.) because he held that the law was so unique as to "confound this normal process of judicial review" and "defies...conventional inquiry." This conclusion was supported by his assertion that "It is not within our constitutional tradition to enact laws of this sort." Finding that "laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected," the Court implied that the passage of Amendment 2 was born of a "bare...desire to harm" homosexuals.


So, if Romer applies, even under the lower level of rational scrutiny the blanket denial of fundamental rights (including marriage: See Loving v. Virginia), DOMA is unconstitutional.

Romer was decided 6-3. One justice on each side has since been replaced. But even assuming that Roberts and Alito will BOTH dissent from the majority, DOMA dies 5-4. I don't assume that Roberts and Alito will dissent. Even Scalia might not be a lock for the anti-gay side. His dissent ended:


Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent."


I added the bold. The plaintiffs in this case have clearly demonstrated that they have been disfavored in a substantive sense - $20,000 is substantive. Given that DOMA doesn't merely deny preferential treatment - it overturns state policy in favor of federal policy and it violates the fundamental right to marriage (that pesky Loving again), Scalia might just swing. That just leaves Thomas and a possible 8-1 butt whuppin' for the anti-gay marriage guys.

It's all over but the shouting. Gay marriage is going to win in the courts and then in the ballot box (public opinion is clearly shifting).

Huzzah.
3.4.2009 4:57pm
cmr:
I believe - and what do I know, I'm just a farmer, that was Virginia's argument in Loving. Virginia lost.


Oh, but it wasn't. Because see, under Loving, it wasn't just about what is recognized as being marriage and thus, what is eligible for benefits. It was that interracial marriage was ILLEGAL and punishable with fines, imprisonment, and being banished from the state (as was the case in Virginia). Two men and two women can still find a progressive church to marry them, in many states they have civil unions and even if they don't, there are still many benefits they can receive even without a marriage, and there's no law that says homosexual individuals are banned from receiving those benefits. A gay man and a gay woman could receive them if they wanted. Conversely, two straight men could not.
3.4.2009 5:08pm
Smallholder (mail) (www):
cmr wrote:

Randy, why do you continue with the rhetorical sleight-of-hand stuff? YOU'RE part of the group that wants both of your examples legalized. WHY IS IT? WHAT PURPOSE WILL IT SERVE? WHY SHOULD WE SUPPORT IT? WHAT'S IN IT FOR US? WHY SHOULD WE CARE?

The burden of proof on YOU, my friend, to answer those questions because YOU are the one that wants policy to be amended to include something it never has.

I'm straight and married, traditionally, to someone of the opposite sex. I won't directly benefit. But I do see a purpose.

A central American idea is equality under the law. Giving - no, recognizing the right to gays to marry advances that interest.

I would also have opposed slavery. Even if there wasn't a "what's in it for us" argument for my Wisconsin neighbors. Dude - we should do the right thing whether or not we directly get something out of it. If you are defending traditional values, I'd think kindness to others should be your default position.

cmr - you oppose anything that doesn't benefit you directly? Really? I'm sad for you.

But aside from the personal level, marriage settles people down. Having a legal basis to protect the interest of gays children ought to be an end in and of itself, but it is also in society's interest.

Not to beat a dead horse - none of your arguments is relevant to the court case. Massachusetts has decided what it wants to do. Now we have to see if the courts will uphold full faith and credit, equal protection, and due process.
3.4.2009 5:13pm
ChrisTS (mail):
Strict: Kudos. Also thanks to whoever mentioned the France quotation; one of my favorites.

MCM: I'm starting to think Cognitis is actually posting from centuries past via a time machine. It explains the world-view as well as the diction.

Noo, I don't think anything is going to explain the diction.

IBBill
Justice, as Gorgias said, is the advantage of the stronger. Socrates struggled with an answer and was forced to rely on a mystical answer of divine retribution, for which he had no evidence. He sure didn't answer it rationally. In fact, he got his ass kicked in the argument.

You are thinking, perhaps, of Plato's dialogue, The Republic, in which the character 'Socrates' argues with the character 'Thrasymachus' and the latter goes away huffy because he's been tied in rhetorical knots? Just to clarify further: 'Socrates' does not invoke 'divine retribution.' Rather, Plato - the author - argues that we damage our souls through injustice; this has, in his view, ill effects for both our reincarnated souls and our psychological wellbeing in the present life.
Gorgias, the living sophist, did not follow the 'right of the stronger' view of the sophists who followed him. 'Gorgias' the character in Plato's dialogue of the same name is depicted as an epistemological skeptic, not a proto-Nietzschean egoist. If you want to pretend to know something about philosophy, at least get the basics right.
3.4.2009 5:16pm
Smallholder (mail) (www):
As an aside:

Since the Obama Justice Department has to defend against the complaint, can they just take a knee and say "yep, you're right. DOMA's unconstitutional?"
3.4.2009 5:31pm
MCM (mail):
I think so. The question is who has the right to change them. With respect to marriage, imo the state legislatures have the right/authority to do so, but not the courts. It's the role of the courts to apply the law as written to the cases before them, not to rewrite it.


Again, if you accept the argument that SSM implicates the RIGHT to get married, then no, the legislature is out of the picture. You can't have legislatures making laws about which groups can and can't exercise their fundamental rights.
3.4.2009 5:55pm
MCM (mail):
No, the reasoning isn't the same. It's also Loving pertained to not only an interracial couple, but an interracial HETEROSEXUAL couple. "To marry", in that context, strictly pertains to a man and a woman. There's no same-sex marriage precedence set by that case, and you're really kidding yourself if you think I'm supposed to nod along while you blatantly wedge your own ideas into that case.


You need to read part II of the Loving decision again. I didn't say it sets an SSM precedent. But there's nothing in their reasoning that is incompatible with SSM, and if you stop assuming that "to marry" automatically means only a man and a woman, then the reasoning is exactly the same.

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.


Oh my god, not only would we have to assume that "to marry" doesn't automatically mean man and woman, but we'd have to assume that "free men" means people other than just "men"! You must be totally freaking out right now!

Even if, for the sake of argument, "marriage is a basic civil right" does rationally pertain to SSM, that would just make laws criminalizing it unconstitutional. But there's no law that does that.


I try to be civil. But I can't even reply to this with a straight face. Of course it does more than invalidate criminal laws preventing it. That's the dumbest thing I've read all day. Do you even know what judicial review is? Do you know anything about constitutional law at all? Have you ever heard the term "state action" before? If you look it up, I'll bet you it encompasses A LITTLE BIT MORE more than "criminal laws".
3.4.2009 6:06pm
Toby:
The opinions on law on both sides have been hashed out, sometimes well, sometime poorly, but you must not know many peopl if you know of no women more attached to their cats then to their husbands. I know one who has kept a cat through three marriages, including the husband she dropped when he needed a kidney transplant. The cat, though, has been incontinent for years, and is being kept alive on expensive drugs...I also know a guy who has kept one line of dogs, breeding replacements, beginning 10 years before his first marriage, and still has the current version despite divorce, and remarriage as his daughters graduate from high school. When he falls asleep in the patio, it is one of those dogs that most likely to sleep with him.

As to where people put their genitals, well, again, I know married hetero couple for years who have either given up sex entirely or who rub them only against those of people they are not married to. I am not sure why the cat astatement somehow got tied to bestiality. The original statement was true, innoffensive, somewhat funny, and not particulalry related to DOMA, pro or con.
3.4.2009 6:10pm
jonah mavesin:
Great conversation.

I am not a lawyer, but it seems to me that civil rights issues always come down to a "reasonableness" test.

At some point, a sufficient number of people find it reasonable that homosexuals who love each other should be able to marry, just like at some point in the 60s a sufficient number of people decided it was reasonable that people should not be physically segregated based on skin pigments.

You can always find extremes to try and break down an argument ("well, if you let two men marry, what about a man and a monkey??"). But usually the extreme counterexamples are just patently unreasonable, and therefore can be safely rejected.

The concept of gay marriage, I think, has now seemed eminently reasonable for a growing number of people from all walks of life. That's why the change is happening, and will certainly happen in my lifetime.
3.4.2009 7:34pm
cmr:
cmr wrote:

Randy, why do you continue with the rhetorical sleight-of-hand stuff? YOU'RE part of the group that wants both of your examples legalized. WHY IS IT? WHAT PURPOSE WILL IT SERVE? WHY SHOULD WE SUPPORT IT? WHAT'S IN IT FOR US? WHY SHOULD WE CARE?

The burden of proof on YOU, my friend, to answer those questions because YOU are the one that wants policy to be amended to include something it never has.

I'm straight and married, traditionally, to someone of the opposite sex. I won't directly benefit. But I do see a purpose.

A central American idea is equality under the law. Giving - no, recognizing the right to gays to marry advances that interest.


Point to the law that restricts gay individuals from getting married. Understand the definition of marriage, to most people, is a union between a man and a woman.

I would also have opposed slavery. Even if there wasn't a "what's in it for us" argument for my Wisconsin neighbors. Dude - we should do the right thing whether or not we directly get something out of it. If you are defending traditional values, I'd think kindness to others should be your default position.

cmr - you oppose anything that doesn't benefit you directly? Really? I'm sad for you.


I was going to respond to the rest of your post, but I'm not. I'm getting tired of people taking it upon themselves to respond to responses I make to other people, and then have the chutzpah to cop an attitude with me when they haven't thoroughly read the exchange before throwing in their two cents.
3.4.2009 10:02pm
trad and anon (mail):
Does DOMA deny a fundamental right to a suspect class? A foggy question! What is the fundamental right, to be married? No, there is no right to be married.
You are entitled to your opinion, but the Supreme Court disagrees. See Zablocki v. Redhail (people in arrears on their child support may not be barred from marrying), Turner v. Safley (prison inmates must be allowed to marry). So yes, under our legal system, there is a fundamental right to marriage.
3.4.2009 10:18pm
ReaderY:
And perhaps it will not. There is no evidence at all that when gay people are true to themselves and come out of the closet that society is hurt in any way. In fact, the opposite occurs -- we don't have sham marriages whereby people get married because it's expected of them. Like Governor Greevey or Ted Haggard.


We have a classic problem of inference from the individual to society as a whole in a case where the whole is not the sum of the parts. In the workplace gender discrimination case, if one small employer wanted same-gender workers, no-one would notice -- a single isolated act wouldn't hurt anyone else in any significant way. If this was the only history prior to the passage of anti-same-sex-employment laws, One could well argue that basis of such laws would be nothing but animosity towards people with different workplace preferences and practices.

But when everybody does it, the equation changes. One gets what this country had prior to the passage of the Civil Rights laws.

Right now, everybody isn't engaging in workplace gender discrimination. We may be back to isolated cases, although we're probably somewhere in between. But suppose nobody ever engaged in workplace gender discrimination except a few isolated people who found themselves only able to be productive when in a same-gender enviroment. Would the Civil Rights laws still be rational? I think they would be. If society was once in "everybody does it" mode, it would still be rational for society to ban the practice in its entirety even after the "everybody does it" state receded into history, as a prophylactic to prevent "everybody does it" mode from occurring again.

As noted above, classical Athens was marked by a "reign of the phallis", a domestic caste system characterized by systematic male homosexuality and systematic mistreatment of women, a state of affairs not unlike the workplace regime of the 1950s. As the Symposium itself illustrates, homosexuality of this sort provided an ideological basis for men to regard women and relationships with women as inferior.

A ban on homosexuality was as effective in breaking this type of domestic caste structure as a ban on same-gender preference in the workplace was in breaking the workplace caste system.

Classical Athens happenned roughly two and a half millenia ago, far before the Civil Rights Act of 1964. But if the state of affairs occurred, a ban designed to prevent such a state of affairs is simply not irrational. It's evidence.

Courts run into difficulties when they attempt to evaluate the rationality of laws designed to prevent things not currently in existence based on only the present state of affairs. In my view, if the state of affairs ever was in existence historically, rationality is sustained, and it's up to legislatures rather than courts to decide if a long-standing prophylactic is no longer needed.

The problem of the successful prophylactic creates great evidentiary difficulties. Really successful fire and flood prevention departments run a danger that people with no memory of what a fire or flood is like will come to regard their activities as a waste of money and stop underwriting the activities that made prevention effective. The perception of irrationality in such cases may be due to the limitations of the perceiver's experience rather than to the activity itself, All one can do in such cases is point to history.

It's entirely possible, once again, that the ban isn't needed, just as their may come a time when civil rights laws aren't needed. But it's up to the people to decide when that occurs.
3.4.2009 10:44pm
Waldo (mail):
One thing this thread ignores is that marriage is fundamentally unequal. Men and women are different and a main purpose of marriage is to reconcile that inequality. The source of that inequality is that women have children and men don't. My question to gays who want marriage is whether they really want to be equal. For example:

Partner A gets to make all decisions regarding whether to have children. Partner B is obligated to support any children that Partner A decides to adopt. If Partners A and B decide to adopt, Partner A may secretly petition the court to deny the adoption without informing Partner B (Planned Parenthood v. Casey).

In the event of divorce, Partner A is presumed (as applied, in the best interest of the child) to be better parent. Partner B is required to pay support to Partner A, even if Partner A doesn't use the money for the benefit of the child.

Partner A is able to obtain a restraining order forbidding Partner B from their home for effectively any reason. If Partner B doesn't have the resources aor and access to a good lawyer, it sticks.

So Randy R., are you ready to be Partner B?

If marriage is about children (as in biological children, not step-children), then being Partner B is probably worth the risk. If it's just about a relationship, be it "True Love" or "Spending your life together," then not really. So if DOMA is overturned and marriage is redefined then Partner B has every reason to just go John Galt. After all, why should Partner B sign up for a contract that doesn't recognize him as an equal parent?
3.4.2009 10:58pm
Strict:
Reader Y: The "ban on homosexuality" originated 2500 years ago in Greece in order to fight the gay-dominated caste structure of society, and to protect women. This ban is still here, in the US, 2500 years later. The ban on the gay is a prophylactic because it prevents a disease. If we want to take off this shield that protects society and women from the gay, it must be the people at the capitol, not at the courthouse, who do it.

Waldo: The problem with gay marriage is that it's two guys. If gays really want to be equal, that means one guy must be the wife/woman, and one guy must be the man/wife, because that's what a marriage is. So how do we choose which guy is the wife and which guy is the husband?
Marriage itself is a relationship where the two perons may each have different rights and responsibilities with respect to the other. Thus married people are unequal to each other. So why does a gay person want marriage, if it just puts him in an unequal position with his partner?

[Waldo, when a gay person says she wants equality in marriage, it means she wants to be able to marry another woman, just like a straight woman is able to marry a man. It doesn't mean she wants a legal relationship with another woman in which they always act as a unit, and each will be treated by the law exactly like the other in all circumstances. There still could be one-sided alimony payments, a divorce settlement or order which favors one side, and grants of child custody which gives more rights and responsibilities to one side. One person might bring in more income while the other person contributes in other ways. Gay marriage doesn't seek to change any of that. That's not the type of equality people are talking about.]
3.5.2009 2:07am
Waldo (mail):
Strict: Marriage between two gay people doesn't put them in an unequal position with each other.

There still could be one-sided alimony payments, a divorce settlement or order which favors one side, and grants of child custody which gives more rights and responsibilities to one side. One person might bring in more income while the other person contributes in other ways. Gay marriage doesn't seek to change any of that. That's not the type of equality people are talking about.]

Well, that's my problem with gay marriage. Because gay couples get to choose whose side the divorce settlement favors and who gets more rights and responsibilities. Heterosexual couples don't. What makes this inequality tolerable is children; they make marriage something that's about more than just us. Therefore, when a gay person says she wants equality in marriage, it's the same as when a man says he wants equality in deciding whether to have an abortion. Yes, his life is adversely affected, but he's not the one who's pregnant.

But I'll offer this compromise. When heterosexual marriages are equal (men have equally effective contraception options, equal numbers of men getting custody as women, and equal numbers of women supporting stay-at-home dads as men supporting stay-at-home moms), then I'll support marriage equality for gays.

Reader Y:

"reign of the phallis", a domestic caste system characterized by systematic male homosexuality and systematic mistreatment of women

Interesting. Especially since those segments of society where marriage is separated from fatherhood (the inner city ghetto) have developed a depressingly misogynistic culture.
3.5.2009 6:41am
IB Bill (mail) (www):
ChrisTS: Thanks for the correction. It's been a long time since I've read either The Republic or Gorgias and got them confused in my mind.

Gorgias is the dialogue where Socrates talks about the need for justice -- that the worst thing that can happen to you is do evil and get away with it. The dialogue in the Republic is where Socrates argues about "advantage of the stronger." And it's at the end of the Republic where Socrates imagines a world of what we might reductively call karmic payback. The souls must suffer 10 times what the pain they've caused others, and then get reborn. However, some particularly evil people don't get to come back -- they have to stay there.

Anyway, thanks again for the correction.
3.5.2009 8:42am
Some Dude:

MCM
You need to read part II of the Loving decision again. I didn't say it sets an SSM precedent. But there's nothing in their reasoning that is incompatible with SSM, and if you stop assuming that "to marry" automatically means only a man and a woman, then the reasoning is exactly the same.


So? If we only assume "to marry" means "to marry a man or a woman" than the whole argument falls into place! Amazing! Well the justices didn't assume that, so the whole thing would have to be re-written. And when it is re-written, it really isn't all that coherent.


These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry [a man or a woman] has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the [sex of the participants] embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious sex discriminations. Under our Constitution, the freedom to marry, or not marry, a person of either sex resides with the individual and cannot be infringed by the State.

"Long recognized," "fundamental to our very existence and survival"?

Did you know that some of the arguments the court were refuting were to were "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens,".

Those don't even apply to SSM. The court was responding to a completely different set of arguments.
3.5.2009 9:21am
For the record:
Just FYI, everyone, this case was filed by
GLAD (Gay and Lesbian Advocates and Defenders, http://www.glad.org/doma), not GLAAD (Gays and Lesbians Allied Against Defamation).

I know, it's confusing, but credit where credit is due, please.
3.5.2009 11:26am
Strict:

Therefore, when a gay person says she wants equality in marriage, it's the same as when a man says he wants equality in deciding whether to have an abortion.


Waldo,

You are confusing two meanings of "equality in marriage." The one sought by gays is simply the RIGHT TO MARRY EACH OTHER, which is the same right enjoyed by heterosexuals - the right to marry each other.

This has nothing to do with each partner getting an "equal say" in things that happen in their shared life together in their marriage.

Since you're conflating two meanings of "equality in marriage," these things are besides the point...


Because gay couples get to choose whose side the divorce settlement favors and who gets more rights and responsibilities. Heterosexual couples don't.


That's not how it works. Heterosexual couples CAN stipulate to terms in a divorce settlement.


men have equally effective contraception options


Are you also a 29 year old virgin? There are vasectomies, condoms, and pulling out, among others...
3.5.2009 11:41am
zuch (mail) (www):
cmr:
Point to the law that restricts gay individuals from getting married. Understand the definition of marriage, to most people, is a union between a man and a woman.
Not to beat a dead horse that gets ignored by those that don't want to see it, but the state of Virginia's defence of their anti-miscegenation laws also said that anyone who wanted to could get married ... as long as their partner was of the class approved by the state. What result?

Cheers,
3.5.2009 12:21pm

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