[krankklown]

Originally Posted by dcmacdaddy

Thanks for the clarification.

You seem to be mixing the two terms here, mentioning both civil unions and marriages in the same sentence. Or is it that couples get a civil union from the state and only after they reproduce can it be called a marriage. Is that what you are getting at?

So, to get some clarity let me ask you this: Do you think that states should sanction marriages as opposed to religious organizations? I guess we could make this an informal poll, so here goes.

I prefer that (check all that apply)

[ ] State should sanction marriages between heterosexual couples that reproduce
[ ] State should sanction marriages between heterosexual couples that don't reproduce
[ ] State should sanction marriages between heterosexual couples whether or no they reproduce
[ ] State should sanction marriages between homosexual couples
[ ] State should sanction marriages between heterosexual and homosexual couples
[ ] State should not sanction marriages between homosexual couples
[ ] State should not sanction marriages between any couples

I believe that the legality of the union would be a contract between the parties involved. I don't need the government's permission to get a credit card, however, the government oversees the creditor to make sure I don't get abused.

Likewise, why not just let the parties draw up their own legal contracts and become a union between 2 or more people? It is a contract, after all, otherwise divorce proceedings wouldn't be an adversarial process. Spell out the rights and obligations beforehand so that if and when the contract is wanting to be voided then the terms are already known beforehand.

If one wants to have a marriage, then, let it be only when a child is produced. That is the only way that two people really become one. Let the marriage be declared by the state in the same fashion that a birth certificate is issued by the state.

[SVass]

Originally Posted by krankklown

Anyhoo I don't have issues with civil unions since it's more or less just a business/financial arrangement that any two or more people should be allowed to do. I just think those who can reproduce between themselves should enjoy better benefits than those who cannot or won't (i.e. free schooling for the kids, tax breaks , etc).

The "marriage tax break" actually came from a Supreme Court Case that said that income is defined by state law and if a state declared that income was community property (half earned by each spouse) then taxes must be calculated in that manner. In order to avoid every state adopting such laws, Congress created the tax break. By this logic, if civil unions create community property, they will probably create a tax break. Lawyers of course have and will continue to redefine the word "income" as well as the word "marriage" . sam

[dcmacdaddy]

Originally Posted by krankklown

I believe that the legality of the union would be a contract between the parties involved. I don't need the government's permission to get a credit card, however, the government oversees the creditor to make sure I don't get abused.

Likewise, why not just let the parties draw up their own legal contracts and become a union between 2 or more people? It is a contract, after all, otherwise divorce proceedings wouldn't be an adversarial process. Spell out the rights and obligations beforehand so that if and when the contract is wanting to be voided then the terms are already known beforehand.

If one wants to have a marriage, then, let it be only when a child is produced. That is the only way that two people really become one. Let the marriage be declared by the state in the same fashion that a birth certificate is issued by the state.

Now you are being evasive, so I will repeat my question.
Should the state be in the business of providing legal recognition to marriages?
If you agree to this statement, please explicitly explain what type of marriages you would like the state to sanction.

[Zimphire]

Originally Posted by krankklown

Why is prohibiting polygamy any different than 2 gays or a man and a woman?

The government is in fact banning a relationship based on some sense of morality if it bans polygamy, correct?

Laws are almost inherently based on morality, the question begs, whose morality do we base the laws upon?

\

BING BING BING.

Better watch it though. When certain people find out their laws are based on actual MORALS, they might melt into a big puddle.

Or combust.

[Zimphire]

Originally Posted by Wiskedjak

I've no problem with this either, though I feel that non-religious heterosexual unions should also not be called "marriages". Leave "marriages" to the churches

I would have no problem if they did that either.

[Zimphire]

Originally Posted by dcmacdaddy

1) that the states need to ELIMINATE all sanctioning of marriage and leave that in the hands of religion where it belongs.
2) Everyone who wants recognition of their relationship in the eyes of the state for legal purposes should get a civil union . . . everyone.

Eh, no need for redundancy.

[dcmacdaddy]

Originally Posted by Zimphire

Eh, no need for redundancy.

Umm

[Millennium]

Originally Posted by dcmacdaddy

Thank you for suggesting civil unions.

In every thread I have enter on this discussion I have argues the same point namely
1) that the states need to ELIMINATE all sanctioning of marriage and leave that in the hands of religion where it belongs.
2) Everyone who wants recognition of their relationship in the eyes of the state for legal purposes should get a civil union . . . everyone.
3) Then, a couple, or a group if you want to pursue the polygamy angle, can go to their religious institution and request a marriage.
3a) If the religious organization refuses then it is up to the adherents to either change their ways or change their religion.

The state takes care of its part of the process, legal recognition of the union, and the religious organization takes care of its part, blessing the legal union as a religious marriage.

This would make for a nice, clean break between Church and State, and is the best that can probably be hoped for.

That said, neither side would be satisfied with it. Thhe anti-gay-marriage folks would not be satisfied because they would see it as further erosion of marriage that governments no longer recognize the term, while the pro-gay-marriage folks would not be satisfied because they want to be able to use that term, and by taking out all legal recognition they cannot make anyone else recognize their union as a marriage.

[stupendousman]

Originally Posted by cpt kangarooski

Civil rights are not subject to popular opinion, and in fact are intended to protect minorities from tyrranies of the majority.

Then that's fine. Argue based on the constitutional right for homosexuals to have their unions called "marriage'. It's going to fail on it's face. Every homosexual has the right to marry. That's not what they want. They want to NOT get married, and then still have the arrangements they consider to be most beneficial be granted equal status. I think it's a intellectually dishonest to even attempt to make such a claim.

For you to show "equality"you'd have to show that the two types of unions were "equal" in most significant ways. You're going to have a hard time explaining how keeping mother/father/children unions intact (one of the main reasons society gives marriage the status it does) has equal weight as simply acknowledging the love of 2 people, which (other than the legal contractual stuff, that the states seem to be allowing non-married people) is the other main component of traditional "marriage". It can't be done. Oh..it's been tried...it's just not very logical. Unless you can find a court that unconstitutionally legislates and not simply follow the constitution itself (a sad possibility), you're going to be better off trying to influence public opinion and change the laws itself. Right now..that's pretty far off. Though, most people have tried to be reasonable and offer some equitable legal conveniences for those who don't wish to marry.

As for the Constitution itself, you should try reading it sometime. The 14th Amendment is central to this issue, and it came along in 1868 -- long after the Constitution of 1789. The 14th A. prohibits state discrimination, and prohibits state deprivations of liberty without due process, which pertains to procedural and substantive due process.

BZZT. Not a single homosexual is being denied the right to marry. They are being denied the right to CHANGE the defintion of marriage to suit THEIR preferences in a way that is not equal to marriage. You can't logically claim discrimination for unequal things. You can try.....

Also, there is some good support for the idea of implicit or penumbra rights.

You're comparing very closely related nuances (which would fall under the classification of "interpretation") and an invention of rights based on several layers of slippery slope interpretations getting to a point where you're finding "rights" that the founding fathers never intended there to be protections for. You can find support for such creative ways to legislate from the bench, but it's hard to argue that things like abortion and "gay marriage" were ever things that our founding fathers intended for the constitution to provide protection for. If it wasn't something that they found worthy of protection, then they allowed the states to decide or for the constitution to be amended.

I really can't imagine where you're getting the impression that the Constitution says that it has to be read in a particular manner (other than the 11th A., oddly), or that people can only rely on the constitution to protect clearly deliniated rights. Some people might think it's desirous, but it's not mandated. And of course, the framers were capable of making things clear if it was important to them, so one might presume that if they didn't, it was intentional.

Yes. You help make my point. If they wanted protections for such things, they would of provided for them. Otherwise, they allowed the states to decide. You're trying to compare very closely related "rights" issues with a slipperly slope of invented rights that have little to do with the will of our founding fathers (which is what the basis of constitutional interpretation should be based on when the actual text isn't clear). It's an example of the illogical excuses used to legislate from the bench.

[Millennium]

Originally Posted by cpt kangarooski

Stupendousman--
I really can't imagine where you're getting the impression that the Constitution says that it has to be read in a particular manner (other than the 11th A., oddly)...

The fact that it's law, perhaps? Law without universal intepretation is meaningless.

[Zimphire]

Originally Posted by dcmacdaddy

Umm

Getting Married, AND having to have a civil Union.

Basically if you get married, the Gov automatically sees it as a Civil Union.

Having to get married AND get a civil union would be redundant.

[dcmacdaddy]

Originally Posted by Zimphire

Getting Married, AND having to have a civil Union.

Basically if you get married, the Gov automatically sees it as a Civil Union.

Having to get married AND get a civil union would be redundant.

Well yes, but that should change with the implementation of a civil union concept. The government would no longer be in the business of certifying marriages so getting married would mean the government would no longer automatically see it as a civil union. These practices serve two different purposes so yes, a couple getting married would need a Certificate of Civil Union from the state as well as a Marriage Certificate from their religion.

The point of all this is to separate the religious function of sanctioning marriage from the secular functioning of sanctioning relationships. So, same-sex couples can get their relationship sanctioned by the state without having those who see it as an offense to the idea of marriage get all up in arms about it. We put the practice of sanctioning marriage back where it belongs, in the hands of religion. But the beauty of this is that opposite sex couple can have a civil union as well without having to be concerned with the idea of having to have a marriage. Because, in the end, all a civil union is is an acknowledgement before the law of two people's legal commitment to one another. Whereas, a marriage is an acknowledgement before God, or a deity of choice, of two people's religious commitment to one another.

This way, it would also be possible to get married without a civil union--to have merely a religious ceremony--but that relationship would need to have a civil union as well to be recognized by the state. It could be something as simply as going to the county courthouse, like a lot of people have to do now to get married, and filing for a certificate of civil union. No biggie, really.

[Zimphire]

Eh, the gov isn't going to stop recognizing marriages as legit. Sorry.

There will simply be different types of unions.

But this means the Gov needs to recognize ALL religious types of "pairings"

[dcmacdaddy]

Originally Posted by Zimphire

Eh, the gov isn't going to stop recognizing marriages as legit. Sorry.

There will simply be different types of unions.

But this means the Gov needs to recognize ALL religious types of "pairings"

Well, that is not what I am working towards. I want to see government out of the business of recognizing marriage between individuals. I want recognition of marriage to be kept where it belongs in religious practice.

[SimeyTheLimey]

Originally Posted by stupendousman

Yes. You help make my point. If they [the Founders] wanted protections for such things, they would of provided for them. Otherwise, they allowed the states to decide. You're trying to compare very closely related "rights" issues with a slipperly slope of invented rights that have little to do with the will of our founding fathers (which is what the basis of constitutional interpretation should be based on when the actual text isn't clear). It's an example of the illogical excuses used to legislate from the bench.

You are missing a point that Cpt K made: equal protection comes from the 14th Amendment, which was specifically ratified to take power from the states, as well as regulate how the federal government has to behave. The Founders of the 18th Century have little to do with it. Secondly, you are missing the fundamental point of what the US Constitution does. It doesn't grant rights, and no judge can construe it to grant rights. All the Constitution does is restrict the power of government to take rights away from the people. That's the meaning of the Ninth and Tenth Amendments, though most scholars regard them both as simply truisms.

The constitutional issue here comes from the fact that the federal government affirmatively decided to enter the field when it decided to recognize state marriage licenses. Once it did so, the federal government is obligated to do so on a non-discriminatory basis. If it doesn't it is taking rights away from people, rights that they inherently have.

There are exceptions to this. The government can discriminate providing that there is a sufficiently rational basis for the discrimination. There are several tiers used to evaluate these, but even the lowest one doesn't give you carte blanche to single groups out for second class citizenship just because you want to. Just not liking a group isn't enough, and nor is simple habit.

Nevertheless, while your constitutional argument is weak, there is a powerful emotional argument here. People get quite irrationally upset about the idea that a cherished word is being used in an unfamiliar way. Bizarrely, many seem happy to use a different word for something that in practice would be an identical legal relationship to marriage. Apparently, the nomenclature is more important than the thing the name is used to describe. If that is enough to make you happy, then fine. But it is a bit like making a 5 year old happy by telling him that is piece of pie is special when in reality it isn't.

Still, that is basically what Connecticut has done and it seems to work politically. Better yet, they didn't do it because they were forced to acknowledge the basic unconstitutionality of discriminating for no good, non-malicious reason. That's why I applaud what Connecticut has done, and see it as a model for other states. If both sides would just back away from this absurd angels-on-a-pinhead discussion about nomenclature, we could move forward with a sensible compromise.

[cpt kangarooski]

Millennium--

]Then whence do they come, and what authority does that source have to define them?

They're inherent, but I feel they're not so much defined as discovered. (Or given a state of nature concept, rediscovered.)

Prove it. To some degree, I am playing Devil's Advocate here, but not entirely.

Do you dispute that any right can be inherent, or just this one? I think that most people would agree that there are at least some inherent rights.

I would argue that your definition is much too broad, even without the whole gay-marriage thing. There are several people whom I would consider family, and yet I am not related to them by blood, nor is anyone in either of our families related. Would you say that I am married to them? No doubt you have a few very close friends who you would consider basically family as well, and yet if I were to suggest that you were married to them you'd probably think I was crazy.

Just because you have a friend that you bring into one of your innermost circles, and say that they're like family, doesn't mean that they actually are. I have a number of extremely close friends with whom I am extremely casual, reliant on, etc., more so than with virtually all extended family members, but they're still not family. I think you're taking it too broadly. Thinking on it, I'd say the situations in which one would create a familial relationship would be adoption, marriage, and perhaps godparenting (which is similar to adoption). I think these are a class apart from just being best friends, and that it's somewhat disingenious to treat mere friendship, great as friendship is, as being on that same level.

the pro-gay-marriage folks would not be satisfied because they want to be able to use that term, and by taking out all legal recognition they cannot make anyone else recognize their union as a marriage

That's incorrect on both counts. There are religions that will marry same sex couples now, and so if a religious union is what results in a marriage, they'd be able to use the term -- not that anyone could possibly prevent them from doing so regardless anyway. And as for legal recognition, that only impacts the government recognizing the marriage, and people who accept the government's recognition as sufficient. Under such a system, just as today, you generally don't have to believe that anyone is married if you don't want to. If your religion says that people of other faiths can't validly marry, then no one will try to force you to do otherwise.

The reason it's not satisfying is because it's similar to how businesses or facilities in the segregated south would react to desegregation by simply shutting down. A sort of taking one's ball and going home, just because things aren't going your way. That's really not ideal, and so I don't think that the government avoiding the issue of marriages altogether is a viable one. Better to open it up to all than to try to deny it to all.

The fact that it's law, perhaps? Law without universal intepretation is meaningless.

Not at all. Courts differ amongst themselves all the time as to what laws mean, and it's hardly uncommon for them to have to change their minds or discover that they erred previously. The world has hardly ended. Plus, you misread me anyway; I didn't say it didn't need to be universal (though it doesn't), but rather that one particular method was not required, whatever it happened to be. The emphasis there was on the particular, not the one.

krankklown--

No, what I'm pointing out is that those who support gay marriage tend to ignore all others who for one reason or another aren't being allowed to marry.

No, some do, some don't.

I for one can think of three current restrictions on marriage, one that's failing, and two former ones. Currently, marriage is unrestricted, save for restrictions regarding: 1) mutual consent (which age is merely a proxy for); 2) consanguity; and 3) marital status. Failing is 4) gender. Gone are 5) race; and 6) religion.

The only one that I see that's defensible is the first. The second is to some extent in that it can affect the first, I think, but I feel that's both too broad and too narrow to be defensible, since it's not inherent or unique to that restriction.

At any rate, the fact that people aren't always perfect advocates of liberty doesn't invalidate the concept altogether. It merely demonstrates that people have flaws. I won't deny that I find a number of other peoples' practices to be off-putting or even gross, but I try to keep my personal sense of taste out of this.

I call that hypocrisy.

Sometimes. Other times it's mere short-sightedness or weakness. Certainly it doesn't necessarily invalidate the initial claim of injustice. It just means that we need to be prepared to look further still.

I believe those who can never reproduce should never enjoy the same rights as those who can.

I assume you mean in the context of marriage. It would be wierd if one's reproductive ability determined whether they could vote, drive a car, etc.

At any rate, so does this mean that you believe that an indisputably sterile opposite sex couple should not be allowed to marry? And that if a means could be found for permitting a same sex couple to reproduce with one another (this will probably be possible for female couples at least, within 50 years) you would support their marrying?

What about reproductive assistance? Do they have to be able to do it on their own, or can other people help (e.g. with test tube babies)? Also, do they have to be able to reproduce with one another? It's not as though one's sexual orientation affects one's fertility. Same sex female couples might use donated sperm; same sex male couples might rely on the involvement of a surrogate mother as a third party, and in both cases, raise the child as the couple's own.

Personally, I think that there is no historical basis for stating that reproductive ability is necessary for marriage, and that it doesn't really make any sense or comport with any ideal of fairness. I'm sticking with the human rights basis, which has had more support anyway.

If it's a kind of right then why does one have to obtain a license to engage in it?

You don't necessarily; it's hardly unknown for people to get married without a license. Common law marriages are not licensed, for example. While they may have historical antecedents in banns, I think that the most they do now is to help notify the government and public, and to help safeguard consent as a requirement, since it imposes more deliberation in the process. We could probably dump them as being antiquated and of little value. I don't think that they're some sort of unavoidable thing, and certainly not sufficient as a basis for denying rights to a broad swath of people. I also wouldn't blithely assume that anything licensed is not a right; there didn't used to be driver's licenses, so did that mean that something changed? Or does it mean that it's just a regulation on the exercise of a right, but not an attack on the basic nature of that right? Probably the latter.

Except that in the sense of marriage limiting it to a man and a woman makes sense, after all, naturally that's the way humans fit together, penis and vagina and all that. All other forms of sex, for example, are purely recreational and unnatural and should not form the basis for allowing what is enjoyed by those who have sex the way nature intended.

What does sex have to do with marriage? It's possible to have sex without marriage and marriage without sex. Both are commonplace, in fact, and always have been.

I just think those who can reproduce between themselves should enjoy better benefits than those who cannot or won't (i.e. free schooling for the kids, tax breaks, etc).

What does that have to do with the capability of reproduction? Surely that has to do with the actuality of reproduction, which is a different issue. In fact, what does that have to do with reproduction at all, actually? You're talking about childrearing.

Basically you're saying that if a same sex couple raises a child that that child should be punished by not receieving a free primary education, that the parents should not get tax benefits, etc., but that all of that changes depending merely upon what bits are between the legs of one of the parents. That's crazy.

Children should receive certain benefits, e.g. a free education, and the person or persons raising a child should receive certain benefits, e.g. tax breaks, and whether and to whom they're married and what gender they find attractive seems to me to not enter into it at all.

Sounds like you're looking for an excuse for discrimination, rather than finding a reason why we might tolerate it. That won't do.

Stupendousman--

Argue based on the constitutional right for homosexuals to have their unions called "marriage'. It's going to fail on it's face.

No, not called marriage. To be a marriage, indistinguishable in the eyes of the government from any other marriage.

Every homosexual has the right to marry. That's not what they want. They want to NOT get married, and then still have the arrangements they consider to be most beneficial be granted equal status. I think it's a intellectually dishonest to even attempt to make such a claim.

Speaking of intellectual dishonesty, you have just summed up EXACTLY what segregated Virginia argued when they were fighting against interracial marriage. They said that whites and blacks had rights to marry, just not to each other, just as you're saying that men and women have rights to marry, just not to anyone other than each other. Furthermore, there are no multiple arrangements proposed here -- there is no dynamic for a two partner marriage other than either opposite or same sex. So let's not have you of all people try to lecture me.

For you to show "equality"you'd have to show that the two types of unions were "equal" in most significant ways.

Predictably, you're hilariously off target. There are two general lines of argument in favor of same sex marriage.

First, there is the substantive due process argument. This begins with the fact that marriage is a fundamental right, as the courts have long recognized. Fundamental rights cannot be denied easily. The government will have to demonstrate an actual, compelling reason to deny marriage to people, and will have to show that the denial is narrowly tailored such that it does effectuate the reason proffered, but does not go beyond that. There is no such compelling reason, and even proposed reasons fail on narrow tailoring since they tend to either effect too few people or too many.

Second there is the equal rights argument. This can be based on both gender discrimination (since preventing two men from marrying is based on their respective genders), or sexual orientation discrimination (since the ban is largely aimed at homosexuals marrying one another). In either event there still has to be a sufficent reason for the discrimination, and sufficiently narrow tailoring. This might not be as strict as in the substantive due process argument, but the government may still find itself burdened with having to give a reason and not being able to give a good enough one, or not having tailored the restriction closely enough to the reason.

Thus, we aren't looking at the marriage. We're looking at the spouses.

You're going to have a hard time explaining how keeping mother/father/children unions intact (one of the main reasons society gives marriage the status it does) has equal weight as simply acknowledging the love of 2 people, which (other than the legal contractual stuff, that the states seem to be allowing non-married people) is the other main component of traditional "marriage". It can't be done.

First, the burden is generally on the government, since it has to overcome the requirement of the constitution to neither discriminate nor deny due process. So you're backwards right off the bat.

Second, you don't actually seem to know much about marriage. Marriage insofar as the government is concerned, is basically a legal arrangement. A and B can be married, and have a child C, but that doesn't require them to live together or to like one another. And D and E might not be married, and have a child F, and live together and like one another. Marriage as a legal construct has no real relationship to the dynamic of a family unit. Plus, children aren't inherent to marriage. Your point loses whatever shred of validity it aspired to given that marriage and children are not entwined -- you don't need children to marry or be married, the duration of the marriage isn't related to children's lives, no intention or ability to have children is necessary, etc.

So to destroy your 'marriage is only for people with children' argument in the context of a substantive due process challenge, you would be saying that the government has a compelling reason to prevent same sex couples from marrying, and that reason is because people should not be married save where they have a child. First, that's not a compelling reason, so you lose. Second, if that were, you do not prevent people without children from marrying, so you aren't actually effectuating your policy, and you would prevent same sex couples with children from marrying, so your policy is denying people's liberties contradictory to itself, so you lose again.

And as much fun as it is to kick over these arguments without breaking a sweat, you'd think that after the hundredth time the people espousing them would start to figure out that they haven't got a chance. Well, I suppose bigotry and idiocy go hand in hand, so it's to be expected.

Not a single homosexual is being denied the right to marry. They are being denied the right to CHANGE the defintion of marriage to suit THEIR preferences in a way that is not equal to marriage.

Again, previous generations have tried that argument to discriminate, and it hasn't worked. Try something new.

You're comparing very closely related nuances (which would fall under the classification of "interpretation") and an invention of rights based on several layers of slippery slope interpretations getting to a point where you're finding "rights" that the founding fathers never intended there to be protections for. You can find support for such creative ways to legislate from the bench, but it's hard to argue that things like abortion and "gay marriage" were ever things that our founding fathers intended for the constitution to provide protection for. If it wasn't something that they found worthy of protection, then they allowed the states to decide or for the constitution to be amended.

No. First, you have forgotten that the 14th A. is newer than the Constitution, so the founding fathers are quite irrelevant. After all, the constitution _was_ amended. Second, it's not difficult at all to find a right of privacy in the constitution. Many of the enumerated rights are concerned with aspects of it and have greater implied protection that you apparently would not argue with.

Plus, either you're willing to accept implied rights or you're not. Since you've said that you are, it's just a matter of degree, not principle. Again, you need to rethink your argument.

Simey--

Nevertheless, while your constitutional argument is weak, there is a powerful emotional argument here. People get quite irrationally upset about the idea that a cherished word is being used in an unfamiliar way. Bizarrely, many seem happy to use a different word for something that in practice would be an identical legal relationship to marriage. Apparently, the nomenclature is more important than the thing the name is used to describe. If that is enough to make you happy, then fine. But it is a bit like making a 5 year old happy by telling him that is piece of pie is special when in reality it isn't.

I agree, it is bizarre. The reason I prefer a unitary marriage to parallel systems of marriage and civil union is because the latter seems to me to be a separate but equal policy, and we've seen how that doesn't work at all. Plus the former is cleaner than trying to have two separate sets of statutes, or putting up with disputes as to whether they'd even be treated identically.

[Zimphire]

Originally Posted by dcmacdaddy

Well, that is not what I am working towards. I want to see government out of the business of recognizing marriage between individuals. I want recognition of marriage to be kept where it belongs in religious practice.

In your opinion. There is nothing constitutional against the Gov recognizing marriage as being valid.

Want all you wish. Aint gonna happen.

[SimeyTheLimey]

Originally Posted by cpt kangarooski

[b]I agree, it is bizarre. The reason I prefer a unitary marriage to parallel systems of marriage and civil union is because the latter seems to me to be a separate but equal policy, and we've seen how that doesn't work at all. Plus the former is cleaner than trying to have two separate sets of statutes, or putting up with disputes as to whether they'd even be treated identically.

Ideally, I agree, of course. But I don't think that the separate but equal analogy is necessarily the right one. The reason why separate but equal was eventually struck down wasn't because analytically, there was anything unequal about separate but equal, it was because factually experience showed that separate wasn't equal. Black schools were never equal to white ones, the black public facilities were never the equal of the white, the back of the but wasn't equal to the front.

Had separate but equal been really put into effect with gusto, then it would have been a lot harder to find unconstitutional. Really, the only way would have been in Loving v. Virginia kind of cases where the deprivation was both to whites and blacks, because they were forbidden to intermarry.

In the civil union case, we are only arguing about a private relationship between two people. Heterosexuals can already get a recognized relationship with one another (which carries a lot of benefits). Homosexuals can already marry heterosexuals, if they so choose. So right now the only thing missing is a relationship for homosexuals to marry/union with other homosexuals of the same sex. As long as the relationship with the government is no different with a civil union than a marriage, I see no separate but equal problem similar to that struck down in race.

Secondly, it was the very failure of separate but equal that paved the way for one standard. We had to go through that intermediary step. This might be the same. If it works, it works. If it doesn't work well enough, it may be a step toward something better. But either way it is better than the ridiculous situation we are in now where both sides are fighting over nothing more important than a word. And certainly, I would be willing to compromise over that, and I would prefer it if our political leaders were to talk more about compromise, and practice their all-or-nothing brinksmanship with someone else's lives.

P.S. great post above.

[Zimphire]

Differentiating two different things, is not a bad thing.

I call Pepsi, Pepsi, Coke, Coke.

But I never get called named for doing it.

[Millennium]

We've long since passed the point of no return on this, Zimph. The definition of marriage has long since gone down the tubes, well before this issue came up. Whether the state gets out of 'marriage' or allows same-sex couples to use the term, it will further erode, and separate-but-equal is unacceptable.

People of opposite genders cannot enter into a 'marriage' any more than a man can menstruate. You can put on most of the trappings, with the whole 'committed relationship' and such, but in the end you do not have the same thing. This is a definition which has stood and served humanity well for thousands of years, even in cultures where homosexuality was never seen as a moral issue. Even in the greatest romantic stories between people of the same gender -and there are a surprising number throughout history- you will see marriage mentioned in similie and metaphor, but never stated outright up until the past century. The union of opposite genders is a central aspect of the term, and this is something which has crossed cultural and religious lines.

It is, perhaps, true that this is a thing which ought not to be the province of law. Fine, then; using the term 'marriage' was always an undue integration of Church and State anyway. Stop them all, and go to an all-civil-union model. This is still an ill omen for society in general, but it perserves a bit more of the definition for a bit longer.

[Zimphire]

Eh, you don't throw out a whole bushel of apples because some are bad.

You certainly don't throw more bad ones in.

That is no excuse.

[zigzag]

Originally Posted by cpt kangarooski

And as much fun as it is to kick over these arguments without breaking a sweat, you'd think that after the hundredth time the people espousing them would start to figure out that they haven't got a chance. Well, I suppose bigotry and idiocy go hand in hand, so it's to be expected.

It's funny how the anti-gay-marriage arguments always follow the same arc: the word marriage has a fixed meaning; they're trying to get special rights; they can already marry someone of the opposite gender; only people who procreate should be able to marry; all gays really care about is sex and money, etc. The hollowness of these arguments has been demonstrated time and time again, but people cling to them anyway, and make up absurd new ones, such as "Why aren't gays also fighting for the rights of polygamists?!!!" Anyway, as I've often said, I wish those who are opposed would stop making illogical arguments and simply admit that, whether it's for personal or religious reasons, they just don't like the idea of homosexuals being married. It would make everything simpler.

Strangely, one argument that used to be made all the time - "Same-sex marriage would devalue my hetero marriage" - seems to have been abandoned for the cheap sentimental claptrap that it was.

[Millennium]

Originally Posted by zigzag

It's funny how the anti-gay-marriage arguments always follow the same arc: the word marriage has a fixed meaning

This is what it all boils down to: the definition of marriage. Although the forms have been slightly different over the ages, there are a few things which have always been constant, and one of these is the union of opposite genders (and only of opposite genders). This is not, nor has it ever been, a moral issue; even in cultures where sex between persons of the same gender was treated as moral, marriage has been between a man and a woman alone. If two persons of the same gender want to put on the legal trappings of a marriage, then by all means let them, but the end result is by definition not a marriage.

Polygamy is an interesting case, but it does not technically violate this basic definition: in cultures where a person could enter into multiple marriages, the topology has been a kind of hub-and-spoke system. Let us say that A marries B and then also marries C; A and C are married, as are A and B, but not B and C.

they're trying to get special rights

No, they are not. They are, however, trying to change the definition of marriage, and this is something I am not prepared to tolerate.

[Zimphire]

I have seen plenty of illogical arguments FOR IT.

The "A lot of marriages suck" excuse is one of them.

[krankklown]

Originally Posted by dcmacdaddy

Now you are being evasive, so I will repeat my question.
Should the state be in the business of providing legal recognition to marriages?
If you agree to this statement, please explicitly explain what type of marriages you would like the state to sanction.

The state should only sanction a marriage when a child is born of both parents. Otherwise, it should only be a civil union.

[zigzag]

Originally Posted by Millennium

This is what it all boils down to: the definition of marriage. Although the forms have been slightly different over the ages, there are a few things which have always been constant, and one of these is the union of opposite genders (and only of opposite genders). This is not, nor has it ever been, a moral issue; even in cultures where sex between persons of the same gender was treated as moral, marriage has been between a man and a woman alone. If two persons of the same gender want to put on the legal trappings of a marriage, then by all means let them, but the end result is by definition not a marriage.

Polygamy is an interesting case, but it does not technically violate this basic definition: in cultures where a person could enter into multiple marriages, the topology has been a kind of hub-and-spoke system. Let us say that A marries B and then also marries C; A and C are married, as are A and B, but not B and C.

No, they are not. They are, however, trying to change the definition of marriage, and this is something I am not prepared to tolerate.

I can't speak to the historical record - I don't know enough about it. But let's assume that the concept has been fixed and constant throughout history. I still consider it churlish to argue that it is fixed for all time and cannot under any circumstances be used to refer to same-sex relationships. It's just a word, and words change over time. I fail to see why anyone would lose sleep over it. But on one thing we do agree: remove it from the statutes and let individuals and churches define it as they please.

[AKcrab]

Originally Posted by Millennium

They are, however, trying to change the definition of marriage, and this is something I am not prepared to tolerate.

Why? Will it ruin your marriage? If tomorrow we woke up and gays across America could get married, what exactly would be so bad?

Originally Posted by krankklown

The state should only sanction a marriage when a child is born of both parents. Otherwise, it should only be a civil union.

I thought you were trolling, but you really think this way, don't you.
I take it you are married with children.

[Millennium]

Originally Posted by AKcrab

Why? Will it ruin your marriage?

Mine personally, no. It will probably ruin a few, but not many. However, it is yet another step

If tomorrow we woke up and gays across America could get married, what exactly would be so bad?

Tomorrow? Nothing. In ten years? That's when we'll start seeing damage. In thirty? By that point even people you'd consider sane will start seeing it, but by then the causes will be long forgotten.

I thought you were trolling, but you really think this way, don't you.

I occasionally play Devil's Advocate, but I don't troll. The wording is harsher than I might normally use, owing to a bad mood (which was not brought on by this), and I apologize for that. However, what I have said does in fact go along with my beliefs, which can be summed up as follows:

Such unions, should they demonstrate the same level of commitment as marriage, ought to have the same benefits in the eyes of the law. However, they are not marriages by definition. The only way to reconcile these two facts is to recognize a superset of marriage, including similar unions between same-sex couples, and to clear this up by removing the word 'marriage' from the legal definition (which was never really appropriate anyway). What new term is invented to describe this, I don't really care; "civil union" seems to be the popular term. I do not believe this to be an ideal solution, but ideal solutions became impossible long ago.

Do I believe that this will cause a moral decline in society? No. I believe it is symptomatic of a decline which began several decades ago, and would not have arisen had this decline not occurred. I do not believe that this decline was started by the gay community, but rather that the forces behind it have attached themselves to that community as a matter of convenience: take an oppressed group's completely legitimate fight for equal rights and twist it just slightly, enough that few would notice anything until it was too late. In this case, the only twist is a single word. I don't believe it's the first time they've done this sort of thing, either; they have done it before, with other groups, and left decades of bad blood between groups which shouldn't be fighting in the first place because of it. This is not the end goal, but they don't care enough to prevent it.

I take it you are married with children.

Married, yes. Children, no, though that's a situation we hope to change in a few years. My wife's beliefs are very different from mine on this issue, and would probably align more closely with your own.

[Millennium]

Originally Posted by Zimphire

Eh, you don't throw out a whole bushel of apples because some are bad.

You certainly don't throw more bad ones in.

That is no excuse.

Separate but equal is unacceptable as law. It's never worked, and there is no reason to believe it will work here; human nature just doesn't do that. That cuts us from three evils down to two, and we're still forced to pick the lesser. Of these two, do you agree with me that going to an all-civil-union model is better than taking out one of the fundamental aspects of the term 'marriage' itself?

Either way, the place of marriage in society will continue to be undermined, as it has been for many decades, long before the gay-marriage issue ever came up. The real question is whether or not the definition can be preserved, and the only way to do that is to get the government out of it entirely. This is by no means the ideal solution, but you need to learn the art of giving a little ground to avoid having even more taken from you by force.

[krankklown]

Originally Posted by AKcrab

I thought you were trolling, but you really think this way, don't you.
I take it you are married with children.

I believe that the greatest gift of nature is the ability to fall in love and have children. This is a real marriage....i.e. the union of two people to create a new one.

Two people who fall in love and never reproduce simply don't have a marriage. What is being joined aside from property and bank accounts? That's a business arrangement and nothing more.

[AKcrab]

Originally Posted by Millennium

I occasionally play Devil's Advocate, but I don't troll. The wording is harsher than I might normally use, owing to a bad mood (which was not brought on by this), and I apologize for that. However, what I have said does in fact go along with my beliefs, which can be summed up as follows:

Sorry Millennium. I know you're not trolling, i quoted you and kranklown in the same post. Probably a bad idea.

[cpt kangarooski]

Simey--

The reason why separate but equal was eventually struck down wasn't because analytically, there was anything unequal about separate but equal, it was because factually experience showed that separate wasn't equal. Black schools were never equal to white ones, the black public facilities were never the equal of the white, the back of the but wasn't equal to the front.

No, that was only part of it. The other part was that separation itself results in inequality. After all, if they were equal, why the separation? And if you are separated from others, isn't that still a deprivation?

The Court's opinion in Brown got into this towards the end:

We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does.

In Sweatt v. Painter, supra (339 U.S. 629, 70 S.Ct. 850), in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra (339 U.S. 637, 70 S.Ct. 853), the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession." Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to (retard) the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racial(ly) integrated school system."

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment.

And of course, it's worth noting that while the deprivation is probably worse for the minority, it harms the majority as well, which is deprived of the ability to stand with the minority group and form a united whole, but must instead be kept apart by those in power.

Zimphire--

Differentiating two different things, is not a bad thing.

I call Pepsi, Pepsi, Coke, Coke.

But I never get called named for doing it.

Pepsi and Coke aren't people, and one is not being given preferential treatment over the other by the government in contravention of the highest law in the land. So while discrimination between foodstuffs is okay, that doesn't provide you with a universal principle.

Of course, this does leave the issue of Soylent Green....

I have seen plenty of illogical arguments FOR IT.

The "A lot of marriages suck" excuse is one of them.

Care to be more specific? I don't remember that one.

Besides, the basic argument is simply that there is discrimination, and there is a deprivation of liberty for no just cause. Removing obstacles to freedom doesn't need an excuse; it doesn't need to be argued for; it doesn't need a justification. It's imposing them that does.

So probably what you're referring to is that someone made an argument in favor of the current ban, and someone pointed out a flaw in it.

Millennium--

People of opposite genders cannot enter into a 'marriage' any more than a man can menstruate. You can put on most of the trappings, with the whole 'committed relationship' and such, but in the end you do not have the same thing. This is a definition which has stood and served humanity well for thousands of years, even in cultures where homosexuality was never seen as a moral issue. Even in the greatest romantic stories between people of the same gender -and there are a surprising number throughout history- you will see marriage mentioned in similie and metaphor, but never stated outright up until the past century. The union of opposite genders is a central aspect of the term, and this is something which has crossed cultural and religious lines.

Of course, for most of human history, women were treated as inferior to men and unable to direct their own lives, and human beings were kept as slaves and considered to be chattel.

And the people to whom that was pedestrian would've never believed that women could not only be in charge of themselves, but that they could be productive members of society on par with men, or that people would ever treat slavery as being an abominable evil to be stamped out wherever it rears its head.

I say that human experience over the last thousands of years is probably best looked at as a cautionary example. We can be better than our ancestors were. We can be superior in our morals, in our freedoms, in our society, in our ability to live peacefully with other people. They frequently got things completely wrong, and it led to an untold amount of human suffering. So screw them. The mere fact that people did something a particular way thoughout history is no defense of it. We have reexamined traditions frequently and discovered just how bad they were, from the merely stupid to the outright horrible. For marriage to be opposite-sex only doesn't make any sense in a civilized society. Doing it that way was a mistake, and it is a mistake that has been going on forever. I say we fix it. You seem to be saying that we've been ****ing up for so long that we might as well keep right on doing it. I think that's insane. Is it defensible at all?

If two persons of the same gender want to put on the legal trappings of a marriage, then by all means let them, but the end result is by definition not a marriage.

And if women wanted to have the trappings of equality, they still weren't really people, right? Did we redefine who counted as people, or did we discover that the definition was simply wrong?

They are, however, trying to change the definition of marriage, and this is something I am not prepared to tolerate.

I agree -- you've strongly indicated your intolerance.

It will probably ruin a few, but not many.

How? Will A and B be so outraged by this that they'll decide to get a divorce? Did they get a divorce in response to desegregation or the enfranchisement of women?

Tomorrow? Nothing. In ten years? That's when we'll start seeing damage. In thirty? By that point even people you'd consider sane will start seeing it, but by then the causes will be long forgotten.

And this damage will consist of what, precisely? Comets hitting the Earth? Cats and dogs living together?

What damage -- in specific what damage great enough to outweigh the benefits -- arose from such significant steps in the progress of civilization as: Democracy; Religious toleration; Abolition of slavery; Gender equality; Race equality; etc?

My prediction: There will never be 'damage' as a result of this. It will marginally improve society, but on the whole we're still not that great, and I doubt humanity will ever escape its many flaws. That doesn't mean we shouldn't strive to, though.

krankklown--

The state should only sanction a marriage when a child is born of both parents. Otherwise, it should only be a civil union.

So you're saying that 1) First-born children for a particular couple should always be illegitimate, and 2) that where there is an egg or sperm donor, or adoption, the couple involved isn't married.

That's really plumbing the depths of the bizarre.

[krankklown]

Originally Posted by cpt kangarooski

krankklown--


So you're saying that 1) First-born children for a particular couple should always be illegitimate, and 2) that where there is an egg or sperm donor, or adoption, the couple involved isn't married.

That's really plumbing the depths of the bizarre.

How would first-born children be illegitimate if the child came from both parents?

No, what I've come up with is an air-tight argument which fits the standard necessary to be a reasonable law: marriage only for couples who create children between the two parents. Otherwise, there's nothing being married, so to speak because the child's DNA won't come from both parents in all other circumstances.

[cpt kangarooski]

How would first-born children be illegitimate if the child came from both parents?

Because they can't get married prior to its birth, and they are probably occupied with other pressing matters at the instant of its birth. This leaves afterwards, but that still means the child was born to them when they were not married.

No, what I've come up with is an air-tight argument which fits the standard necessary to be a reasonable law: marriage only for couples who create children between the two parents. Otherwise, there's nothing being married, so to speak because the child's DNA won't come from both parents in all other circumstances.

That would not be a reasonable law in the state of insanity, much less the regular 50.

Also, what happens if the child (or all children, if more than one) die? A divorce?

[SimeyTheLimey]

Originally Posted by cpt kangarooski

Simey--


No, that was only part of it. The other part was that separation itself results in inequality. After all, if they were equal, why the separation? And if you are separated from others, isn't that still a deprivation?

The Court's opinion in Brown got into this towards the end: [quote deleted]

And of course, it's worth noting that while the deprivation is probably worse for the minority, it harms the majority as well, which is deprived of the ability to stand with the minority group and form a united whole, but must instead be kept apart by those in power.

This is exactly why I don't think Brown's analysis works in this context. Married people aren't children, there is no stigma here that marks us for life the way Brown asserted kids are stigmatized by segregated schools. So an argument tailored for primary and secondary education isn't strictly applicable. That's besides the fact that there is extensive literature debunking the social science Brown relied upon. It's a great moral decision, but it isn't the best reasoned in the Court's history.

So your first point doesn't quite work. Your second point really doesn't work. Heterosexuals and homosexuals aren't being segregated the way that Jim Crow laws segregated the races. Gay and straight kids go to school together, heterosexual and homosexual couples live side by side. All that is going on here is a prohibition on a legal sanction within a couple. We aren't separated physically, only legally. The equal protection clause would be satisfied by the government treating everyone substantively the same. The word the government uses is not a substantive difference.

In sum, the equal protection argument is relevant and is the proper framework. Consequently, our experience with combating race discriminiation is also relevant. But that doesn't mean we have to mechanically apply those lessons ignoring all the obvious differences. Especially not when the cost of being so dogmatic and unimaginative could be very great indeed. It is not smart to hold out for a whole loaf if the result is a constitutional amendment that permanently deprives me of even a crumb.

[krankklown]

Originally Posted by cpt kangarooski

Because they can't get married prior to its birth, and they are probably occupied with other pressing matters at the instant of its birth. This leaves afterwards, but that still means the child was born to them when they were not married.

You really ought to reread my posts. Civil union, then, marriage if a child is born of the parents. If the parents had child first, then, the civil union would therefore automatically be converted to a marriage at the same time upon production of a birth certificate listing both members of the civil union as the genetic parents.

That would not be a reasonable law in the state of insanity, much less the regular 50.

Why not? Do you only oppose it because you know it's genetically impossible for two gays to reproduce? Heaven forbid we base laws on natural characteristics of humans such as the possibility that human reproduction only takes place between a man and a women. OMG! NATURE IS TEH DISCRIMANITREE!1!!1!

Also, what happens if the child (or all children, if more than one) die? A divorce?

It reverts back to a civil union, obviously, because there's no more children, eh?

[stupendousman]

The Founders of the 18th Century have little to do with it.

Um...they're the guys whose words the high court is supposed to determine the precise meaning of, when there is a dispute as to what the Constitution was supposed to mean. They have EVERYTHING to do with it.

Secondly, you are missing the fundamental point of what the US Constitution does. It doesn't grant rights, and no judge can construe it to grant rights. All the Constitution does is restrict the power of government to take rights away from the people.

...and one of the rights that is not restricted is the right to regulate marriage based on societal norms that don't directly violate the constutition.

The constitutional issue here comes from the fact that the federal government affirmatively decided to enter the field when it decided to recognize state marriage licenses. Once it did so, the federal government is obligated to do so on a non-discriminatory basis. If it doesn't it is taking rights away from people, rights that they inherently have.

...and currently, the federal government recognizes all legal marriages. This is no different then if Utah still allowed polygamous unions. Of course, the high court has already ruled that there is no right to redefine marriage in ways that would give equal status to unequal unions (like polygamy).

There are exceptions to this. The government can discriminate providing that there is a sufficiently rational basis for the discrimination. There are several tiers used to evaluate these, but even the lowest one doesn't give you carte blanche to single groups out for second class citizenship just because you want to. Just not liking a group isn't enough, and nor is simple habit.

Again...you can't argue discrimination between two unequal things. If you can show that that one entity benefits from something in ways that another can not in a certain way, then there is no unequal "discrimination". Otherwise, we'd never have any kind of constitutional "affirmative action" available. After all...you are discriminating, and doing so on the basis of race (in most cases). You are allowed to do so because opening up the action in question to everyone would defeat the purpose of encouraging and giving added status to a segment of society that has been deemed to be worthy of extra help. That is no different than the affirmative action given to men and women who chose to come together in long-term unions that results in the production of offspring the majority of the time. This can NEVER be the case with homosexual unions, and the affirmative action given by acknowledging the societal construct of marriage in law doesn't carry with it the same benefit to society.

Nevertheless, while your constitutional argument is weak, there is a powerful emotional argument here.

Heh. There is no constitutional argument for "gay marriage" unless you use a "full faith and credit" loophole dodge, which would likely be filled if pushed.

People get quite irrationally upset about the idea that a cherished word is being used in an unfamiliar way. Bizarrely, many seem happy to use a different word for something that in practice would be an identical legal relationship to marriage.

There is no "identical" relationship to marriage. That's where the logical flaws come in, and why the argument falls on it's face at it's base.

[Millennium]

Originally Posted by cpt kangarooski

Zimphire--

Pepsi and Coke aren't people, and one is not being given preferential treatment over the other by the government in contravention of the highest law in the land. So while discrimination between foodstuffs is okay, that doesn't provide you with a universal principle.

That said, while Pepsi and Coke aren't people, they are both cola beverages.

Of course, for most of human history, women were treated as inferior to men and unable to direct their own lives, and human beings were kept as slaves and considered to be chattel.

In some cultures, this was certainly true, but not in all of them. If you look throughout history, you can find almost any model you could think of. You can find societies which kept slaves, and societies which did not. You can find patriarchies, and you can find matriarchies, and you can find cultures which didn't place much meaning on gender. And yet even in these, we see this constant: marriage as a union of opposite genders. My point on this is that it isn't simply an issue of morality, because we see this in many alternate moral models. Consider the Heian period of ancient Japan, where the prevailing moral model was based on beauty: nothing beautiful could be evil, and thus anything which could be made beautiful was considered good. In this time and place, same-sex relationships were considered not only normal but outright expected in certain situations, particularly between master and student. Truly this was a time and place very different from our own, and even here we see the same union-of-opposites model when it comes to marriage. Another example, perhaps more familiar in the West, would be ancient Sparta, where long-term same-sex relationships were so ingrained into the culture that they were a mandatory part of military life; a more experienced soldier would pair off with a new recruit. Even here, however, when the time came to marry, the other soldier would help his partner choose a wife.

Almost any model of society you care to mention has, more than likely, already been seen or very closely approximated in the past. It is not my place to call any of these cultures inherently superior or inferior to any other. In these, we can find models of morality, social class (or lack there of), egalitarianism (or lack thereof), and so far very similar to our own, and we can find models completely alien to our own ways of thinking. What you do not find -and believe you me, even I was surprised in a few cases to not find this- is a definition of marriage which does not include the union of opposites. This is not a matter of morality, nor of class or equality, nor of freedom. What it's a matter of is not something which I'm sure has a name of its own, but it's something more ancient than any of these.

Is the term "marriage" really so precious to you? I think we've already established its meaning on my side, and you might say that I cling to the current definition unduly, and that's not something I'll even necessarily deny. But you hold to your redefinition at least as strongly as I hold to my definition, and that makes me honestly curious. The means I present -going to an all-civil-union model- could have resolved this entire issue years ago. This model would give you all the same rights and freedoms, without the legal 'separate but equal' crap that others here such as Zimphire are advocating, but this is not enough for you. You want the word, and you want it badly enough that you would reject equality if the word didn't come with it. Why? This is an honest question. If you look back further in this thread, you'll find that I predicted this very argument, but I've never understood why this happens. To cling to a word so much that you'll throw away everything you claim to want for its sake: this does not make sense to me. Please explain. Is it that what you want is not equality, but sameness?

Interracial marriage, incidentally, is not the best of counter-arguments, because the people who argued against it on historical grounds were ignorant of their own history. In the past, although interracial marriage could certainly raise eyebrows, the idea of prohibiting them by law was only a recent phenomenon ("recent" in the historical sense, obviously, since the trend to prohibit them has died down). Greek and Roman mythology feature several such marriages, but a more recent example would be Shakespeare's Othello. The marriage in this play certainly caused a scandal within the context of the play itself, but no one ever questioned its legality inside the play or outside of it.

I say that human experience over the last thousands of years is probably best looked at as a cautionary example. We can be better than our ancestors were.

Aye, we can, and we have made much progress. However, we cannot assume ourselves to be automatically better; while we have taken steps forward in some areas we can easily be argued to have taken steps backward in others. It takes more than merely being different to be better.

We can be superior in our morals, in our freedoms, in our society, in our ability to live peacefully with other people.

Indeed, we can, and we are. However, you have yet to show how this is an issue of morals, freedom, or peace. I've provided a fair bit of history which would suggest that this is something entirely different from these things.

They frequently got things completely wrong, and it led to an untold amount of human suffering.

We, too, have gotten things completely wrong, and this has led to great human suffering. I can name you many groups which would point this out in great detail, if you so desire. We are different, but that does not mean we are always better.

For marriage to be opposite-sex only doesn't make any sense in a civilized society.

On the contrary, it has made sense to every civilized society in history, and every uncivilized society of which we have records as well.

Doing it that way was a mistake, and it is a mistake that has been going on forever. I say we fix it. You seem to be saying that we've been ****ing up for so long that we might as well keep right on doing it. I think that's insane. Is it defensible at all?

I agree -- you've strongly indicated your intolerance.

I can see I won't ever convince you otherwise, so I'm not going to bother trying, but you are more wrong than you can imagine on this count.

How? Will A and B be so outraged by this that they'll decide to get a divorce?

Not outrage. More likely it would be a case of one person leaving for a partner of the same gender. I don't think this will happen very often, but to say that it won't happen at all in the several million marriages in this country is unwise.

And this damage will consist of what, precisely? Comets hitting the Earth? Cats and dogs living together?

Continued and increased disrespect for those things which bind societies -all societies, across culture and morality and religion and all the other things which differentiate them- together, more likely. Other issues in the recent past have started this trend already; this is merely another link in the chain.

krankklown--

So you're saying that 1) First-born children for a particular couple should always be illegitimate, and 2) that where there is an egg or sperm donor, or adoption, the couple involved isn't married.

That's really plumbing the depths of the bizarre.

If you'll accept the likes of me as a partner in questioning krankklown, you've got one ready and willing. Although his model has been seen in a few rare examples, to hold it up as a traditional model cutting across societal, cultural, and moral lines is ignorant at best, dishonest at worst, and bizarre in any case. I'd fight his redefinition as much as I'd fight yours.

Krankklown, it is fairly common knowledge that children are a consequence of heterosexual coupling, and quite a few people try to point out this potential as a reason for the definition of marriage. However, tying the marriage to actually having children is a new concept. It seems vaguely like a mutation of some cultural aspects of the time of the Biblical patriarch Abraham, but it doesn't match up there either. Where are you getting this idea from?

Under your model, you clearly have some legal differentiation in mind between civil unions and marriages, but you have not been forthcoming in the details other than this requirement. What would be the difference in the eyes of the law, and why would this require the differentiator of children being present? How do you believe this would improve society?

Cpt Kangarooski mentioned cases of sperm and egg donation; what about surrogacy? Consider the implant-egg treatment, where an egg is fertilized in vitro but then implanted into somebody else (usually because the original mother is incapable of bringing a child to term). Genetically, the result is a child of the couple getting the treatment, but someone other than the mother gave birth; what hapens then? I mentioned Abraham once before, so let's consider a peculiar model of parenthood from that time. Although not terribly common, it wasn't unheard of for a wife to give one of her servants to her husband; that servant would later give birth on the wife's knees, and the child would be considered the wife's child. This model is not really used today, but how would it affect your model? Having gone back into the past, let's look into the future; some researchers are working on artificial-womb technology, such that a child could gestate outside of its mother's body. How would this affect your model?

[cpt kangarooski]

krankklown--

You really ought to reread my posts. Civil union, then, marriage if a child is born of the parents. If the parents had child first, then, the civil union would therefore automatically be converted to a marriage at the same time upon production of a birth certificate listing both members of the civil union as the genetic parents.

Congratulations for not addressing the criticism. Want to try this again, with the proper timeline?

Do you only oppose it because you know it's genetically impossible for two gays to reproduce? Heaven forbid we base laws on natural characteristics of humans such as the possibility that human reproduction only takes place between a man and a women. OMG! NATURE IS TEH DISCRIMANITREE!1!!1!

As previously noted, in the next 50 years or so, you're probably going to see the first daughter that's the biological child of two female parents. It'll involve a lot of lab work, but I'm fairly confident it'll happen, so your objective isn't going to do what you want it to do for long.

My objection, however, is based on your proposal a) being radically unrelated to anyone's concept of marriage, however broad, ever, b) probably failing on a consent requirement, c) lacking even a rational basis IMO, and d) being quite lamely targeted at excluding same sex couples, despite whatever collateral effects it might have on anyone else. Given that I bet you would never propose this in the absence of a movement for same-sex marriage, it's as if you're a modern-day Lt. Calley, destroying marriage in order to save it.

Stupendousman--

Um...they're the guys whose words the high court is supposed to determine the precise meaning of, when there is a dispute as to what the Constitution was supposed to mean. They have EVERYTHING to do with it.

No, because as Simey and I have both pointed out, the Constitution is not entirely an 18th century construct. It has parts dating from the 18th, 19th, and 20th centuries, and the views of the framers are irrelevant for anything that came after them.

Plus of course, determining the meaning of the words doesn't have to refer to them anyway -- the words can speak for themselves.

...and one of the rights that is not restricted is the right to regulate marriage based on societal norms that don't directly violate the constutition.

Which is why we're discussing how these regulations directly violate the 14th Amendment, which is part of the constitution.

...and currently, the federal government recognizes all legal marriages. This is no different then if Utah still allowed polygamous unions. Of course, the high court has already ruled that there is no right to redefine marriage in ways that would give equal status to unequal unions (like polygamy).

No, the federal government does not. Additionally, the Supreme Court opinion regarding polygamy is Reynolds. You obviously haven't read it. First, it doesn't say anything like what you seem to think it does. Second, it is abhorrently bad in its own right, and is up there with Dred Scott, Plessy, Korematsu, and Buck as an infamous case in which the Court just completely failed. You should read it; it's enlightening. At any rate, if seriously challenged, I don't think it would hold up. None of the others have.

Millennium--

That said, while Pepsi and Coke aren't people, they are both cola beverages.

And when cola beverages have human rights, we can discuss why discriminating amongst them might be bad. So long as they're merely soft drinks, they're a very stupid example.

Is the term "marriage" really so precious to you?

As noted, I think that parallel regimes of marriage and civil unions results in a separate but equal system, and that such a system should be rejected immediately since it pretty much guarantees injustice.

The means I present -going to an all-civil-union model- could have resolved this entire issue years ago. This model would give you all the same rights and freedoms, without the legal 'separate but equal' crap that others here such as Zimphire are advocating, but this is not enough for you.

First, your wording implies that I'm gay. I'm not. I am just a strong proponent of civil liberties. So unless you 'giving you all the same rights and freedoms' you mean 'giving everyone,' you might want to watch it there.

Second, I don't think it's a realistic solution. Certainly it doesn't accomplish what you want, since if any religious marriage would still be a marriage, then there'd still be same sex marriages, as not all religions object to the practice. So that's a lot of work for nothing. Besides which, I don't think that there's any particular need for the government to invent this whole new construct when merely removing a limitation accomplishes the same end more cleanly and easily. All that MA had to do was change a few words in the form. Nor do I think such proposals have a good motive behind them, since it still seems highly reminiscent of the segregationist 'take the ball and go home' strategy used in the 60's. I don't like to cater to discriminatory elements in society; I don't much care about making them continue to feel or be superior.

Not outrage. More likely it would be a case of one person leaving for a partner of the same gender.

That happens now. It has nothing to do with the availability of same sex marriage, it has to do with people being open about (or changing) their sexual preferences. You need to find an example of something that same sex marriage would actually cause. What you're looking at is probably more traceable to Stonewall, and that ship has sailed.

Continued and increased disrespect for those things which bind societies -all societies, across culture and morality and religion and all the other things which differentiate them- together, more likely. Other issues in the recent past have started this trend already; this is merely another link in the chain.

Things like?

[stupendousman]

Originally Posted by cpt kangarooski

No, because as Simey and I have both pointed out, the Constitution is not entirely an 18th century construct. It has parts dating from the 18th, 19th, and 20th centuries, and the views of the framers are irrelevant for anything that came after them.

True. There were amendments after that. At that point, you'd have to determine the intent of those legislating at the time when interpreting the meaning of the amendments. It's still going to be a giant leap to claim that any of the amendments (or original clauses) of the Constitution was intended to force society to accept behavior they believe is either immoral or not a logical/factual equal equivalent to other behavior. You're going to have to show how unions which generally create new members of society which requires added rights and responsibilities are generally equal to those who absolutely CAN NOT do the same.

You're going to have to argue that the outstanding characteristics that make up most all "marriage', which are the most compelling reasons for the government to recognize these unions, are not substantially different than those that don't. The government isn't simply recognizing "love" between two people. That's an uphill battle at best.

In other words...there are no legal protections of non-descrimination against non-equal things. For example, you can't cry discrimination because you are white and being denied affirmative action based on race. The very reason for such affirmative action is to encourage a category of people who society believes needs extra help. That's no different than the actions taken toward men and women who join together in unions which generally results in the production of offspring.

No, the federal government does not. Additionally, the Supreme Court opinion regarding polygamy is Reynolds. You obviously haven't read it. First, it doesn't say anything like what you seem to think it does.

The debate was whether a non-traditional form of "marriage" was to be allowed. The court did not allow it. That in and of itself shows that there is no absolute protection for all unions to be given equal status with that of marriage just because it's an example of people coming together because of "love".

ps. All the people arguing against "separate but equal" must realize that in this case the "equal" part can't be shown to be true, therefore there is no legal right for it not to be "separate".

[SimeyTheLimey]

Originally Posted by stupendousman

...and currently, the federal government recognizes all legal marriages. [/b]

Er, no it doesn't. Massachusetts already has gay marriage. The federal government doesn't recognize them because of the Defense of Marriage Act. Whether that is constitutional or not is part of the issue. (The other part is whether states are compelled to treat their citizens the same, regardless of whether the federal government must).

Again...you can't argue discrimination between two unequal things.

That's stupid. You can't duck an equal protection argument by arguing that there is nothing to compare. We are arguing discrimination against people. Do you dispute that homosexuals are people? Do you dispute that people are equal before the law? If not, then we are comparing equal things.

Dispite that inherent equality, the law discriminates against a class of people. In order to do that, you have to come up with a justification sufficiently strong to overcome the 14th Amendment presumption against unequal application of laws. That's hard to do, and you haven't come close to even trying.

What you are trying here is simply a semantic dodge to avoid what I suspect you realize is the issue. I think you know in your heart that what you really want to do is discriminate against people on the basis of the fact that you don't like them. I think you know that isn't a good enough reason. So you are trying to simply define the problem away.

The problem is that by doing that you prove the very point you have to overcome in order to justify discriminating against homosexuals. It has been established now for nine years that you cannot constitutionally discriminate against homosexuals simply because of your animosity toward them. That's one of the holdings of Romer v. Evans. You ought to read it. When you make your circular argument you are saying that in your eyes homosexuals don't even rise to the level of being compared to heterosexuals. The only way that makes logical sense is through a framework of animus, which is impermissible. Your own argument betrays the unconstitutionality of what you want to do.

Then to make it really silly, you change the subject to affirmative action. Affirmative action has little to do with this issue on any policy grounds. I don't know why you choose to link the issues. However, affirmative action is a useful tool to show you what it is you have to argue in order to justify government discrimination. In affirmative action (which, incidentally, I oppose on equal protection grounds), the deviation from equal protection is justified by arguing that there is sufficient need for the government to discriminate against people on the basis of race. I personally don't think that those justifications are adequate, but the courts have accepted them. That's why it is legal.

Similarly, you want to continue to discriminate in favor of heterosexuals. You want to reserve a special privileged legal status for heterosexual couples, and continue to shower government benefits on that group which you don't want to give to everyone. That's like affirmative action for straights. To justify that violation of the equal protection clause you have to come up with rational justifications similar to the way proponents of affirmative action have justified their violation of the equal protection clause. But you haven't even tried yet, which is why I called your constitutional argument weak. You are arguing the constitution without even knowing the rules of the game as it is played.

So let's see if you can do better and actually make a constitutional argument that passes the laugh test. Without changing the definition of terms, without categorically and arbitrarily excluding a whole class of citizens from the protections of the constitution, give us rational justifications for excluding a class of citizens from the equal protections of their government.

[cpt kangarooski]

Simey--

We aren't separated physically, only legally.

True

The equal protection clause would be satisfied by the government treating everyone substantively the same. The word the government uses is not a substantive difference.

Here, though, I disagree. It's a pretty weighty word.

In sum, the equal protection argument is relevant and is the proper framework.

I think that it and substantive due process both work, actually, and that the latter may prove to be the stronger of the two given precedent.

[SimeyTheLimey]

Originally Posted by cpt kangarooski

[b]I think that it and substantive due process both work, actually, and that the latter may prove to be the stronger of the two given precedent.

Maybe, that depends on the courts. However, the courts won't be able to rule on the issue if the matter becomes constitutionalized though an amendment, which people are thinking just irrationally enough to do. That's why I think it is extremely unwise to be a purist for the sake of something as trivial as a word. I also think it is unwise to pursue this through the courts at all at this juncture. That should be the last resort, not the first. The first resort should be seeking legislative solutions like Connecticut's.

The bottom line is I couldn't care less whether the government styles my relationship as a civil union or a marriage. I do care if I lose the right to even ask for equality.

[Millennium]

Originally Posted by cpt kangarooski

And when cola beverages have human rights, we can discuss why discriminating amongst them might be bad. So long as they're merely soft drinks, they're a very stupid example.

My intent was not to show an example of anything with any pertinence to law itself, mrerly to illustrate a subset/superset relationship. I apologize for not clarifying this, but read further and I'll clarify where I had intended to go.

As noted, I think that parallel regimes of marriage and civil unions results in a separate but equal system, and that such a system should be rejected immediately since it pretty much guarantees injustice.

Indeed, and this is why I have denounced the idea of parallel regimes just as loudly as you do. I suggest the government take one step up from marriage, and work with a superset of such relationships, of which marriage is but one. In other words, to use my example above, stop working with Coke and work with cola beverages instead.

First, your wording implies that I'm gay. I'm not. I am just a strong proponent of civil liberties. So unless you 'giving you all the same rights and freedoms' you mean 'giving everyone,' you might want to watch it there.

It was not my intent to imply that you were gay. I do not know if this is something for which I should apologize or not; that rather depends on your point of view. If you consider this something which requires an apology, then you have it.

Second, I don't think it's a realistic solution. Certainly it doesn't accomplish what you want, since if any religious marriage would still be a marriage, then there'd still be same sex marriages, as not all religions object to the practice. So that's a lot of work for nothing.

Not quite 'nothing'. From a legal standpoint there is little difference, but from a semantic standpoint the difference is vast, as it allows the historic definition of marriage to be preserved for those who hold to it while still ensuring equal rights for all. To do otherwise is to brand religions and other groups which object as hate groups, which I believe to be the actual goal of those who fight for the term anyway.

Besides which, I don't think that there's any particular need for the government to invent this whole new construct when merely removing a limitation accomplishes the same end more cleanly and easily.

I don't know about this. Removing the limitation altered a definition, and this will cause problems down the line. A cleaner method would be to simply move one step upwards in the chain, from 'marriage' to 'lifelong-commitment intimate relationships'.

All that MA had to do was change a few words in the form.

The same is true of what I propose, is it not? What would be required other than changing a couple of words in the form? One extra clause to the law, perhaps, mapping wording from past legislation to new language going forward, but I fail to see how this is not an elegant solution. This even allows new forms of relationships which we have not yet discussed (or imagined) to be easily added.

[zigzag]

Originally Posted by SimeyTheLimey

That's like affirmative action for straights.

I wish I had said that, because IMO it really captures the essence of the problem. It's straight, childless couples who are getting "special rights." It's as if the government had said "We'll allow people of opposing gender to enter into construction contracts with each other, but not people of the same gender. Since everyone remains free to enter into construction contracts with someone of the opposite gender, it's not discrimination." We all know how ridiculous that would be, but people still argue it in the context of marriage.

The usual counter-argument, of course, is that marriage between childless heterosexuals is not just a contract. A given person or church might think so, but where our government is concerned, a contract is all it really is, and the only thing that prevents it from being applied to same-sex couples is custom and prejudice.

[stupendousman]

Originally Posted by SimeyTheLimey

Er, no it doesn't. Massachusetts already has gay marriage. The federal government doesn't recognize them because of the Defense of Marriage Act.

...which is the legal means to describe what some seem to not understand IS marriage. Massachusettes could well recognize the union between a man and a tree as "marriage", but that doesn't mean that it is or that it's something that the rest of the nation should recognize. A state can't logically define something crazy to make the rest of the nation accept the crazy defintion. For instance, it's already been determined legally that polygamy isn't a protected form of union, and if a state chose to recognize it as such, it's highly unlikely a court would force the rest of the United States to recognize such a crazy and almost universally unaccepted definition of marriage soley on "full faith".

That's stupid. You can't duck an equal protection argument by arguing that there is nothing to compare.

No. It's stupid to argue equal protection constitutionally for unequal things. That's the very basis of the argument - that two equal things are being treated with inequality. If you fail at the equality test, everything stops at that point. That is the case here. You have two unequal things, being treated differently because of how the two things benefit society.

We are arguing discrimination against people. Do you dispute that homosexuals are people? Do you dispute that people are equal before the law? If not, then we are comparing equal things.

Logical fallacy. Every homosexual is allowed to marry. They aren't being denied marriage. THEY ARE being denied the right to change the the very defintion of marriage to something that is unequal to marriage in order for their choices to be given equal protection, even when those choices aren't equal in the benefits and ramifications to our society at large. It isn't the person that is being disciminated against...it's their chosen behavior. There is no constitional right to have unequal actions be protected equally, that I know of.

Dispite that inherent equality, the law discriminates against a class of people. In order to do that, you have to come up with a justification sufficiently strong to overcome the 14th Amendment presumption against unequal application of laws. That's hard to do, and you haven't come close to even trying.

All I've got to show is that you are comparing apples to oranges. There is no standard where I would have to justify not treating unequal things unequally. The burden should logically be to prove that recognizing homosexual unions provides the same substantial benefits and societal ramifications that recognzing heterosexual unions do. You're essentially going to have to argue that the fact that almost all long-term heterosexual unions results in the production of offspring, is an insignificant insentive for the government and society to recognize these long-term opposite sex unions. GOOD LUCK!

What you are trying here is simply a semantic dodge to avoid what I suspect you realize is the issue. I think you know in your heart that what you really want to do is discriminate against people on the basis of the fact that you don't like them. I think you know that isn't a good enough reason. So you are trying to simply define the problem away.

BZZT. You make a nice emotional argument, but as I've shown it fails logically under closer inspection.

When you make your circular argument you are saying that in your eyes homosexuals don't even rise to the level of being compared to heterosexuals.

WRONG. What I am saying is that in my eyes (and in fact), the recognition of the long-term unions of homosexuals do not merit the same societal interests and importance to the continuance of our species as those of heterosexual unions and giving ALL unions between two people equal status (you'd logically have to include platonic caretaker/no next of kin unions to keep from discriminating the way you suggest) most certainly does degrade the affirmative actions society gives those unions to that which is almost meaningless, therefore there is a compelling interest to not give unions which do not meet such a high standard equal status. You can try to wish away the fact that the most compelling reason for government recognition of long-term heterosexual unions is the normal biological after-effects such unions cause, and the benefit society gains from keeping the father/mother/child union intact, which is IMPOSSIBLE with homosexual unions (two members of the same sex together in such unions - natually, will cause no such reproduction), but most people understand doing so is just hogwash.

The only way that makes logical sense is through a framework of animus, which is impermissible. Your own argument betrays the unconstitutionality of what you want to do.

When logical arguments fail, be sure to excuse your inability to refute with the hatefullness of others. While it's a lot easier to do than to make sense, it's not exactly intellectually honest.

Then to make it really silly, you change the subject to affirmative action. Affirmative action has little to do with this issue on any policy grounds. I don't know why you choose to link the issues. However, affirmative action is a useful tool to show you what it is you have to argue in order to justify government discrimination. In affirmative action (which, incidentally, I oppose on equal protection grounds), the deviation from equal protection is justified by arguing that there is sufficient need for the government to discriminate against people on the basis of race. I personally don't think that those justifications are adequate, but the courts have accepted them. That's why it is legal.

You answered your own question. It's been established that when you can show a sufficient need for the government to give benefits to a class, that there is no legal need to give the same benefits to entities that would otherwise be deemed to be "equal". This is no different concerning the affirmative action that the government profers upon men and women who enter into long-term unions which normally results in the reproduction of offspring. You'd have to argue that A. There is no benefit to society in encouraging the stability of father/mother/child relationships and B. That such a thing isn't one of the defining characteristics of "marriage" as it's always been, in order to make the claim that there is a sufficient need to also recognize homosexual unions the same way. Otherwise, you are requesting equal treatment for unequal situations.

Similarly, you want to continue to discriminate in favor of heterosexuals. You want to reserve a special privileged legal status for heterosexual couples, and continue to shower government benefits on that group which you don't want to give to everyone. That's like affirmative action for straights. To justify that violation of the equal protection clause you have to come up with rational justifications similar to the way proponents of affirmative action have justified their violation of the equal protection clause.

See above. If you want to argue that there is no significant societal interest in the government encouraging the stability of father/mother/child relationships that naturally occur with opposite sex long-term unions, and as such providing certain affirmative actions to do so, you're welcome to try. I'd suggest that's probably not an argument you're going to win.

So let's see if you can do better and actually make a constitutional argument that passes the laugh test.

You've already conceded my argument that the government allows unequal treatment of equal things based on the societal importance that such treatment will profer, and my argument is that we are dealing with two unequal entities in the first place where there is no requirement for equal treatment. All I hear is an insistance that the two things ARE equal while ignoring the significant scientific differences (among others) that the two classifications have which cause their societal importance to be substantially unequal. In essense, we are left with a stomping foot insisting that apples are oranges and that they should be made to taste the same. THAT is what is laughable.

[Millennium]

Originally Posted by zigzag

The usual counter-argument, of course, is that marriage between childless heterosexuals is not just a contract. A given person or church might think so, but where our government is concerned, a contract is all it really is, and the only thing that prevents it from being applied to same-sex couples is custom and prejudice.

This is a large part of the problem. As far as law is concerned, a marriage is just a contract, and it is good that the law treats it as such: to do otherwise would unfairly intertwine Church and State. However, this does not mean that this is all marriage really is; only that this is the best way for the law to treat such a thing. Since the law cannot and should not treat it an a manner more accurate to its nature, it is best to remove the religious term entirely. Marriage thus interacts with the State through a contract, but retains its definition elsewhere.

As another option, as opposed to contracts such relationships (marriage and all others) could be considered a kind of corporation: a new legal entity created by those engaging in it. This perhaps reflects the nature of marriage more accurately, and allows for some fascinating possibilities when it comes to taxes, inheritance, and property rights. To say that it would cause large numbers of legal headaches, however, would be quite the understatement. This is also not exactly a common way of thinking about corporations -which are typically used for business nowadays- but other types of corporations do exist; governments are also a type of corporation. The first corporations, in fact, had nothing to do with business.

A third option -and perhaps the most radical of all- would be to institute a system of family registration, not unlike the Japanese koseki. The Japanese system couldn't carry over straight across, but with some relatively minor tweaks it could be used to create similar possibilities to the other solutions I mention. Of course, this is bound to meet with objections from privacy advocates, even though the Japanese system is generally very good about this.

My point is that people keep thinking inside a relatively simplistic box: it is this one type of relationship or it is nothing at all. This need not be the case. The government has long been too tied up in the religious aspects of marriage -starting with the name 'marriage'- and this should be corrected. We have an opportunity to do so, and yet relatively few people seem to want to take it.

[stupendousman]

Originally Posted by zigzag

I wish I had said that, because IMO it really captures the essence of the problem. It's straight, childless couples who are getting "special rights." It's as if the government had said "We'll allow people of opposing gender to enter into construction contracts with each other, but not people of the same gender. Since everyone remains free to enter into construction contracts with someone of the opposite gender, it's not discrimination." We all know how ridiculous that would be, but people still argue it in the context of marriage.

False analogy. I don't know of any significant differences between construction contracts between the sexes, especially ones that greatly impact society. The same is not true of long-term sexual unions between different sexes.

The usual counter-argument, of course, is that marriage between childless heterosexuals is not just a contract. A given person or church might think so, but where our government is concerned, a contract is all it really is, and the only thing that prevents it from being applied to same-sex couples is custom and prejudice.

False. As with other forms of affirmative action, "litmus tests" other than simply meeting the basic criteria that would normally benefit from the special recognition are not necessary. For instance, your socio-economic status is not normally taken into account when race-based affirmative action is put into play. People who are not a minority race, but are poor and lack opportunities often times would be better suited for affirmative action than wealthy, well-educated minorities. While there are people who choose to take advantage of the long-term heterosexual union affirmative action that the government recognition of marriage proffers who don't plan on having children or think they can not, the fact is that the majority WILL do so and you can not effectively weed out those that can't or won't. Therefore, it's a similar situation as a wealthy minority recieving racial affirmative action. You don't give this recognition to everyone, just because a small minority benefits who might not need such recognition can also benefit. That would essentially "throw the baby out with the bathwater".

[zigzag]

Originally Posted by stupendousman

What I am saying is that in my eyes (and in fact), the recognition of the long-term unions of homosexuals do not merit the same societal interests and importance to the continuance of our species as those of heterosexual unions and giving ALL unions between two people equal status (you'd logically have to include platonic caretaker/no next of kin unions to keep from discriminating the way you suggest) most certainly does degrade the affirmative actions society gives those unions to that which is almost meaningless, therefore there is a compelling interest to not give unions which do not meet such a high standard equal status. You can try to wish away the fact that the most compelling reason for government recognition of long-term heterosexual unions is the normal biological after-effects such unions cause, and the benefit society gains from keeping the father/mother/child union intact, which is IMPOSSIBLE with homosexual unions (two members of the same sex together in such unions - natually, will cause no such reproduction), but most people understand doing so is just hogwash.

Which argument always fails when it is acknowledged that procreation (be it natural or artificial) is neither the required nor the inevitable nor even necessarily the probable result of heterosexual marriages. Stop dodging and explain to me why the government should grant Liza Minnelli and David Guest - who neither can nor should reproduce - certain privileges and benefits (i.e. "special rights") while denying them to two more responsible and stable citizens who happen to be of the same gender.

[SimeyTheLimey]

Originally Posted by stupendousman

...which is the legal means to describe what some seem to not understand IS marriage. Massachusettes could well recognize the union between a man and a tree as "marriage", but that doesn't mean that it is or that it's something that the rest of the nation should recognize. A state can't logically define something crazy to make the rest of the nation accept the crazy defintion. For instance, it's already been determined legally that polygamy isn't a protected form of union, and if a state chose to recognize it as such, it's highly unlikely a court would force the rest of the United States to recognize such a crazy and almost universally unaccepted definition of marriage soley on "full faith".



No. It's stupid to argue equal protection constitutionally for unequal things. That's the very basis of the argument - that two equal things are being treated with inequality. If you fail at the equality test, everything stops at that point. That is the case here. You have two unequal things, being treated differently because of how the two things benefit society.



Logical fallacy. Every homosexual is allowed to marry. They aren't being denied marriage. THEY ARE being denied the right to change the the very defintion of marriage to something that is unequal to marriage in order for their choices to be given equal protection, even when those choices aren't equal in the benefits and ramifications to our society at large. It isn't the person that is being disciminated against...it's their chosen behavior. There is no constitional right to have unequal actions be protected equally, that I know of.



All I've got to show is that you are comparing apples to oranges. There is no standard where I would have to justify not treating unequal things unequally. The burden should logically be to prove that recognizing homosexual unions provides the same substantial benefits and societal ramifications that recognzing heterosexual unions do. You're essentially going to have to argue that the fact that almost all long-term heterosexual unions results in the production of offspring, is an insignificant insentive for the government and society to recognize these long-term opposite sex unions. GOOD LUCK!



BZZT. You make a nice emotional argument, but as I've shown it fails logically under closer inspection.



WRONG. What I am saying is that in my eyes (and in fact), the recognition of the long-term unions of homosexuals do not merit the same societal interests and importance to the continuance of our species as those of heterosexual unions and giving ALL unions between two people equal status (you'd logically have to include platonic caretaker/no next of kin unions to keep from discriminating the way you suggest) most certainly does degrade the affirmative actions society gives those unions to that which is almost meaningless, therefore there is a compelling interest to not give unions which do not meet such a high standard equal status. You can try to wish away the fact that the most compelling reason for government recognition of long-term heterosexual unions is the normal biological after-effects such unions cause, and the benefit society gains from keeping the father/mother/child union intact, which is IMPOSSIBLE with homosexual unions (two members of the same sex together in such unions - natually, will cause no such reproduction), but most people understand doing so is just hogwash.



When logical arguments fail, be sure to excuse your inability to refute with the hatefullness of others. While it's a lot easier to do than to make sense, it's not exactly intellectually honest.



You answered your own question. It's been established that when you can show a sufficient need for the government to give benefits to a class, that there is no legal need to give the same benefits to entities that would otherwise be deemed to be "equal". This is no different concerning the affirmative action that the government profers upon men and women who enter into long-term unions which normally results in the reproduction of offspring. You'd have to argue that A. There is no benefit to society in encouraging the stability of father/mother/child relationships and B. That such a thing isn't one of the defining characteristics of "marriage" as it's always been, in order to make the claim that there is a sufficient need to also recognize homosexual unions the same way. Otherwise, you are requesting equal treatment for unequal situations.



See above. If you want to argue that there is no significant societal interest in the government encouraging the stability of father/mother/child relationships that naturally occur with opposite sex long-term unions, and as such providing certain affirmative actions to do so, you're welcome to try. I'd suggest that's probably not an argument you're going to win.



You've already conceded my argument that the government allows unequal treatment of equal things based on the societal importance that such treatment will profer, and my argument is that we are dealing with two unequal entities in the first place where there is no requirement for equal treatment. All I hear is an insistance that the two things ARE equal while ignoring the significant scientific differences (among others) that the two classifications have which cause their societal importance to be substantially unequal. In essense, we are left with a stomping foot insisting that apples are oranges and that they should be made to taste the same. THAT is what is laughable.

Stupendousman, I give you credit for trying, but none of these arguments work legally. They have all either been tried in this context, or in other closely analogous ones. For example, you claim that homosexuals aren't denied the right to marry -- because we can marry people we don't want to marry. That's the old Loving v Virginia argument that Virginia tried in 1967. That argument lost, and can't be resurrected.

Secondly, you do a nice little dodge when you say that two "things" aren't comparable. The actual test a court would apply is whether the plaintiffs in a case are similarly situated to other people receiving different treatment from the government. Notice that this test focuses on the people, not the "thing" that they are being deprived of. In the eyes of a neutral court adjudicating the issue, a same-sex couple is similarly situated to an opposite sex couple in that they are both sets of two mentally competent adults seeking a marriage contract. But for the one difference at issue in the case, they are identical. If a court adopted your logic it would in effect decide the conclusion of the test (and indeed the case) before applying the test that is supposed to decide the conclusion. That is circular, or as lawyers like to say "conclusory" in that you assume the conclusion that you are supposed to arrive at logically. It's therefore unpersuasive. So applying the test neutrally, the equal protection clause applies (as the Supreme Court has in any case said several times).

As for "accepting your argument" that you can overcome the presumption against discrimination, that is really quite a laugh. We are the ones who are asking you to justify your preferred discrimination, and indeed, the fact that you now seem willing to do so implies that you have in fact accepted that there is discrimination to justify. That kind of undermines your "nothing to compare" argument. Just by making this argument you are conceding that in fact equal protection is the proper framework to apply.

However, once we apply the equal protection clause you have to justify why you want to ignore its essential principle -- that people are entitled to the equality before the law. This you have not yet done, but you have made a weak stab at it. You set out some arguments to do with reproduction and the like, all of which have been shown in this thread to have nothing whatsoever with contemporary usages of marriage. For example, sterile people can marry. It would be changing the definition of marriage to argue that marriage requires the ability to reproduce because at present no state requires that.

Then you try an interesting dodge of trying to reverse the burden of proof. You say that we much prove why your justifications aren't sufficient and why there is a compelling need for gay marriage. Sorry chum, that just isn't the way the law in this area works. When the government chooses to discriminate, it bears the burden of showing why its justification for doing so is compelling enough. The burden is not on the side who is arguing merely for equal treatment. Furthermore, the discriminatory law (or application of law) has to be narrowly tailored to achieve that purpose. And as I pointed out in the Romer case (which I hope you have read) the justification can't simply be grounded in animus. So far you haven't succeeded in coming up with a justification that doesn't look suspiciously like just wanting to keep homosexuals in a second class position. I.e. you can't just say your justification is that you prefer to discriminate against a group because you don't value them as highly or just prefer a hierarchy of rights. That's not remotely good enough, and indeed, is exactly the kind of justification the 14th Amendment forbids.

So try again with coming up with valid justifications. And this time, try to rely a little less on cute phrases like "stomping foot" "crazy" "stupid" "hogwash" and the like. Those just make it look like you can't think this through rationally. Give us rational reasons that are consistent with current marriage practices why it is imperative that the government continue to treat homosexuals differently from, and less preferentially to heterosexuals. Tell me why, for example, a homosexual couple should pay more in income taxes than a heterosexual couple. Tell me what is so compelling that stops me from titling my house in the same way as a heterosexual. Show me what compels the state to deny me health coverage as a spouse, or visitation rights in hospital, or status of a next of kin. And so on. The burden is on you.