Explaining Same Sex Marriage

While it's definitely a gender-based restriction in the law, that's not the same thing as gender discrimination which advantages/disadvantages the sexes unequally.

This is a claim that has already been rejected by some courts examining the marriage issue.

 

Probably referencing the cases where Virginia held that the anti-miscegenation laws did not advantage/disadvantage races unequally.

 

Marriage in ancient Rome was specifically between a man and woman. Homosexual marriage was not recognized. The fact that Emperors may have engaged in the practice was not generally condoned by the population but an emperor could do whatever he wanted to do.

 

The question is one of how much weight they should be given. "That's the way it has always been done" does not make for a persuasive argument. Tradition especially needs to be supported by something that shows why the tradition came into being, and what (if any) relevance it has with regard to the thing being challenged, in this case, limiting legal recognition to opposite-sex couples.

While you can likely show why the tradition of marriage has importance for opposite-sex unions, I doubt you can show any relevance that tradition holds for denying same-sex unions legal recognition.

It may not be enough to say that legal marriage exists to support opposite-sex couples. It also needs to be shown why the legal institution can't also accommodate same-sex couples; why denying them is a necessity for supporting opposite-sex couples. An appeal to tradition simply won't satisfactorily answer that question.

Except that where legal challenges are concerned, it's the burden of government to justify it's restriction of one's liberty. The constitution acts as a check on government's undue interference. In the case of marriage, denying recognition of same-sex couples' marriages seriously and unduly impairs their ability to enjoy equal access to the government they help support.

Again, putting words in my mouth. I don't know who you think you're quoting, but I never called you a "homophobe hater".

If you think marriage hasn't change enormously over time, then I suggest you're wearing blinders to avoid seeing what you don't want to see.

The feeling is mutual.

 

I never claimed that was the only thing to consider--just that it is valid to consider it.

Tell that to Justice Blackmun when he wrote his decision for Roe v Wade.

It's never been done before extreme recent history.

But you see-- the question isn't really about "denying" anything. It's whether homosexuality is truly a suspect class or not. As for tradition and same-sex unions...the only offering was supposed marriage of demented Roman emperor who burned down his capital and an obscure emperor who reigned from age 16-18 whereupon he was murdered by his Praetorian Guard. The examples are not really a beacon of hope to guide the US by...

there are legal institutions called a "civil union" that could be argued as the alternative--but that is not what is wanted.

And again--I didn't say it was the only answer to the question.

There is no restriction of liberty.

What is the government's INTEREST in supporting gay marriage.

No--you called me "biased," "against gay people," and "fueled by animus." Ummmmm...To paraphrase you: Big words don't change the tenor of what you're saying.

Liiiiiiike...???

When was it not a family structure for procreation and providing for children?

 

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That is not the legal standard. The legal standard is that they must show a compelling and necessary interest in order to deny (not support) access to the contract when challenged by persons who have proven themselves to be similarly situated to those that already have access to the contract.

This will be the distinction that wins these cases in favour of same sex couples while you're left flapping your wings.

Personally, I can't even see why they would need a standard of heightened scrutiny to achieve this, it seems like a no-brainer to me.

 

Strawman. I didn't claim that you said it was the only thing to consider.

I'm not going to respond to sarcastic swipes except to note them as such.

...with regard to the question of same-sex couples marrying. However, the first part you conveniently ommitted:

^ This is not something new.

I very much beg to differ. Adding the "one man, one woman" restriction to the existing marriage laws was all about preventing same-sex couples from achieving recognition of their unions. It started in 1973 in response to an initial case which challenged the refusal of a marriage license to a same-sex couple, and came to a head with the enactment of the federal DOMA 23 years later. If you pay any attention to the rhetoric surrounding passage of the various statutes and constitutional amendments limiting marriage to "one man, one woman", you will quickly find that a LOT of it is aimed at denying same-sex couples recognition and also that a LOT of it is filled with anti-gay animus.

About which we will clearly never find ourselves in agreement. Nothing left to discuss with regard to that issue.

(emphasis added) None is needed, quite frankly.

...because they're a separate institution which provides inferior access to government. The only reason civil unions exist is so that some people can feel good about how "tolerant" they are, while maintaining their sense of superiority over same-sex couples. The moment you designate same-sex marriages as a separate institution with a different name, you are marking those couples as an easy target for discrimination. We already have enough knowledge from Vermont and New Jersey to know that civil unions don't provide the equality they promise.

Besides, the CIVIL recognition of a marital UNION by the government already has a name - marriage.

It's degrading to have to call our marriages something else.

If civil unions are so great, then you go have one instead of a marriage.

Edit: And let's not pretend that there is any broad support for civil unions. The people who are against marriage equality are also largely opposed to giving same-sex unions ANY status whatsoever. You need look no further than the marriage amendments of Michigan and Virginia for evidence of that.

Repetition of the prior strawman.

^ Unsupported opinion.

Asked and answered. Repetition of the question will not net you a new answer.

I stand by my characterization of you. If the shoe fits...

Already gave you an example. Regardless, it is not exclusively a structure for procreation and providing for children. You conveniently ignore that same-sex couples also raise and must provide for the children in their households for whom they have legal responsibility. So the only difference that remains is procreation, which is not a requirement of marriage. It's simply not relevant to the question of whether or not a competent, mutually consenting, unmarried adult can contract to form a union with another competent, mutually consenting, unmarried adult in marriage. It's not relevant to the current situation restricting marriage to "one man, one woman", and not to the situation of same-sex couples marrying.

The goal of marriage is to promote a structure for a type of interpersonal relationship that entails an expected long-term commitment by two people who become each others legal kin, forming an economic unit that may or may not include children - and regardless of how those children are produced.

Again, the above is true of the current situation in which marriage is restricted to opposite-sex couples. Same-sex couples are no different. They are similarly situated. The things that differentiate the two - their gender and their ability to procreate - are not relevant to whether or not they have the ability to form a marriage; it is merely a barrier in the law that prevents same-sex couples from doing so; a barrier maintained as an expression of animus toward them that seeks to marginalize and separate them from the rest of society, and to deny them equal access to their government.

 

Marriage came into being before recorded history...where would you suggest this information be found?

And if Newsom et al had gone about the thing in a legal manner, Prop 8 wouldn't have been proposed. Remember--even after he was told to stop--he continued.

You know--until 1973, homosexuality was classified as a mental illness.

Gee--seems like there is some agenda at work here....


Can you give more details about this 1973 case you refer to? And DOMA? I don't think DOMA is correct, because I support states rights, but...why can't you get a clue. Even the Democrat in office at the time felt the need to "defend" marriage!

It's very clear this is a suavely orchestrated assault in order to redefine society.

I don't know about the "animus" you reference--can you give an example? As for the defining in constitutions more clearly what marriage is...if there weren't this orchestrated deconstruction of language and society perpetrated against the norms of social order that transcends our government itself, it would be MOOT.

Well--whether you agree or not, in THIS country, when it eventually is forced upon SCOTUS to define, if it is defined against your wishes, will you shut the hell up?

How convenient. Historical practice and evidence is, whether you like it or not, relevant. hmmmm. I wonder if Nero and his supposed "gay marriage" and the state of society during his reign will make it into the decision rendered by SCOTUS....it may be very relevant when considering the potential "harm" related to societies in which leaders accept same sex unions.

Hey--i'm not for civil unions. they are by definition separate and therefore "unequal". But, when you don't fit the purpose of an institution, and the government has no compelling interest to endorse such unions, I would think you'd want to take what you can get.

Gay marriage is NOT an institution--it would be a legal contract. Institutions have normative history behind them. Gay marriage has NONE.

you're defining "marriage" by assuming same-sex unions would be a "marital union." That's circular reasoning.

You aren't "married." Especially since you live in Michigan where it is ALSO written into the constitution that marriage is between a man and a woman.

I don't have to--my union meets the definition of "marriage." My union is procreative and a stabilizing force in society. YOUR (assumed) union is DESTABILIZING as noted by the disregard for a state's right to lawfully amend it's constitution through legislative means (as demonstrated in CA).

Yup. State's rights is the way to go.

Please enlighten the "sex discrimination" that occurs in marriage being defined as a man and a woman. Is it sex discrimination if a woman can't get hired to be a male model? Is it sex discrimination if a man cannot be legally a child's mother? Is it sex discrimination that a man can't get a pap smear? SOME THINGS ARE FACT. And what marriage is, is fact.

It just shows your own close mindedness.

I've not ignored it--perhaps you came into the discussion after it was covered.


BTW--same sex "couples" don't have legal responsibility--ONE of the partners--the blood relative--does in most states. Even in hetero-marriages, where the offspring is from a different sexual union, the blood relative is the legally responsible person.

It's not a requirement, but it is the defining purpose for which government has an interest in endorsing the union.

This brings me back to the "test" I offered earlier (the test to determine your consistency--if you fail to answer it, you show your bias).

Are you, then, in support of ALL consenting adult unions? Like...father/daughter unions, mother/son, father/son, mother/daughter--sisters marrying brothers, brothers marrying brothers, sisters marrying sisters, grandfathers, uncles, cousins etc... marrying each other in any consensual consanguineous intercourse?


If not--can you please provide your reasoning why same-sex marriage should be legal, but not consanguineous marriage?

I'm waiting with bated breath.

The social-scientific evidence does not support that gay relationships meet that "long term commitment" ideal. Is this commitment you speak of sexually exclusive and monogamous by definition? How would that be written into the "law" without infringing upon personal freedoms and changing how marriage operates in this country?

Oh--but many many are "diferent" in how they perceive monogamy and marital fidelity which is (as you noted) what marriage is supposed to be-- "a type of interpersonal relationship that entails an expected long-term commitment by two people who become each others legal kin."

Of course--it must be that people hate gays. It can't be that people love their society and reverence marriage and its socially stabilizing virtues.

I love gay people. I love them so much that their being gay is irrelevant to me. I don't love "gay people"--I love people, some of whom happen to be gay. It's not their sexual preference that I resent, it's the political intrusion of a minority's sexual preference into the very fabric of society that I don't love.

 

How do you know they are not grandparents having been married for eons?




Please read: and note the part I emphasized:

Fertility tests would not be "least restrictive." male/female relationships are by the nature of the two sexes--procreative. To test the obvious would be restrictive and an invasion of privacy. Male/male or female/female relationships are NEVER intrinsically procreative--it doesn't require any "test" to determine that.

Age barriers to procreation are non-specific since fertility for men is possibly life-long and for women varies greatly and so cannot be determined without invasion into privacy.

 

But it was California SSC that legalised SSM.

A victim of moral medicine. Unwed pregnant teenagers were often sent to asylums for the mental illness of having sex before marriage (curiously the boys that got them pregnant weren't considered "ill"). Not suprisingly such asylums were often run by religious orders with the Catholic Church being a major contributor.

Yes indeed it does and that would largely be for religious groups to maintain a grip on peoples' lives whom they have absolutely nothing to do with.

He was politically railroaded into it. He wouldn't have signed it if he had free range of conscience.

That sounds so paranoid.

How about saying for decades that gay people were mentally ill and sticking electrodes on their genitals to try to "change" their sexual orientation?

And this is the real point of the argument. Some people believe that nothing can transcend constitutional government and get very annoyed when "transcendent" becomes a proxy for untouchable. Usually when people are talking about transcendence, they are talking matters of faith. You've been very careful to avoid that to this point but now you're getting dangerously close.

If it goes the other way, will you?

Correlation is not causality. You need to up your game.

Then what are you for because it is unclear?

Backwards, they need to show a compelling and necessary interest in not providing access to the contract.

Yes and BTW so what?

In time it would have but it has to start somewhere.

It would be a marital union in the eyes of the law so not sure of your point here?

How about gay couples who are married in states and countries that do recognise that right, are they married?

So does mine if you mean "traditional" marriage.

Hope you don't procreate any gay kids.

Only because you're getting all riled up about it. I don't feel in the least bit destabilized by gay marriage (and why do you have to spell everything with a "z" instead of an "s"-I hate this darn spell checker?)

"Of course, you have every right to force your jackboot down on my neck, please press harder!"

In in either case the non-biological parent can adopt. There's that similarity of situation again.

It's just not a requirement, no amount of personal addendum can make it one.

Phew! I already took the test. Glad I don't have to do it again.

So what, heterosexuals have open marriages and nobody's trying to take their licenses away. I know gay couples who've been together for decades.

I suppose you could write it into law but that would really upset those heterosexuals who have open marriages. You know if all heterosexual marriages were faithful and committed, you'd have a point but as they're not, you don't.

Well no but when you refer to them "en bloc" in terms that get deleted by the profanity filter you have to suspect there's at least a little underlying tension.

It can't be that gay people love their society and reverence marriage and its socially stabilizing virtues.

People having varying sexual orientations is part of the fabric of society so your whole statement is an oxymoron.

 

Because an eon is a billion years and it would be highly unlikely for people to live that long. Also, I know where the picture is from.

And off you go on another tangent... ok let's ride along for a bit.

U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the "liberty" or "due process" clause of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin.

To pass strict scrutiny, the law or policy must satisfy three tests:

• It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
  
• The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
  
• The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.

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Privacy? We ask age, race, previous marriages, and do medical tests on peoples blood. Whether a couple is sterile or not is already a question for marriage in Utah, required if the couple are cousins (unless both are over 65 when sterility is assumed). No fertility test is required. Doesn't seem like a privacy argument makes much sense but frankly that whole argument is made unimportant by the absence of any compelling interest.

Least restrictive / narrowly tailored means the criteria must restrict the civil rights as little as possible to meet the compelling interest for infringing on a civil right. There is no compelling interest here, but if the government somehow had one then there is certainly a less restrictive criteria. Denying marriage to same sex couples does not prevent mixed sex octogenarians and sterile couples from marrying (thus it fails to address an aspect of the imagined interest) and it prevents same sex couples who have children from marrying (thus being overbroad).

The practice of denying marriage to couples that cannot have children would be less restrictive and more narrowly tailored.

The whole discussion though is meaningless unless you can offer a compelling government interest accomplished by denying marriage licenses to couples that cannot have children.

 

You present an excellent argument, Taxpayer. It is well-reasoned, logical, and adequately supported. Unfortunately it is entirely wasted on people who do not live in the rational world.

 

Start another thread, guys, this one is past its 50 page limit.