Gay Marriage

[lawcat]

it's really no more incorrect to say the 14th amendment applies to federal law through reverse incorporation than it is to say the first amendment applies to state law through incorporation.

 

I agree that it is no more incorrect, because the bolded statement is 100% correct.

 

 

Until gay people are granted suspect classification neither due process or equal protection are very likely avenues of redress.

 

True, if it is to be done by judicial determination today. But, IMHO, since fundamental rights analysis requires history and tradition, then, if and when enough states allow some sort of union, the Supreme Court will declare the right to enter into a union a fundamental same-sex right. In instances like this, the court raises a wet finger and takes the pulse of the nation: when 20+ states allow, then it will be time to declare a new fundamental right. This can happen in time. When that happens, the marriage will be likely. It just takes time, and people need to be patient and fight one or few states at a time.

 

 

For the matter of DOMA, I think Bill is right—it's best attacked on Full Faith and Credit grounds.

 

Hmmm, I am not so sure. Congress has the power, as CraigD explained, to regulate effects of laws between States, especially on divisive issue like this one. I do not think that the Supreme Court would take that power away from Congress, in the light of the FFC which exressly delegates such power to Congress, and previous ruling in favor of political branches of government.

 

Full Faith Clause is one of those clauses that has been only addressed two times in our 200+ years history. Once in 1890's, when the Court explained that the FFC is not self-executing, and the Congress can legislate and change rules for the States. Second time was in the affirmation of the pwoer of Congress, in 1980's, of the Uniform Child Custody Jurisdiciton Act, which regulates jurisdiction between states. Other than that, and since Congress has not acted in this area, it has been impliedly (never expressly) understood to mean exactly what the first sentence of the clause says.

 

IMO, it is more likely that DOMA's exclusive definition of marriage will be struck down on federal level, under the Fifth Amend's equal protection analysis. The Statute is too broad and too narrow at once: it excludes same-sex couples who are joined, live together legally in 5 States in unions and partnerships, from the host of benefits: such distinction has no rational relationship to the purposes of many statutes (but not all), other than moral background. Federal government is the weakest when they legislate on morals, since fed's powers are enumerated and morals are enumerated no where in the Constitution: Only States can legislate on morals.

 

So I think the federal definition will be the first one to go, but others will take a few decades, if gays stay persistent and use proper avenues in States.

[InfiniteNow]

What you are about to read is wrong:

Your copy/pasted quote (which was uncited... and rather bad form in that respect) was not factually wrong. It was, however, non-sequitur and and tangential from the rebuttal of your point.

 

 

For interested parties, here is what Lawcat failed to source in his post: Incorporation (Bill of Rights) - Wikipedia, the free encyclopedia

[TheBigDog]

OK, you got through at least half of it. I'll see if I can connect the dots for you. First we get to your summary.

Your basic argument is thus:

 

Most people in US history have considered a marriage to be between a man and a woman, at the exclusion of same sex partners.

The laws did not specify the required genitals of marriage participants because they didn’t have to.

Close enough.

Then, using circular and self-referential logic, you assert that the law always intended to restrict marriage to man and woman, at the exclusion of same sex partners.

Yes, however it is not circular logic. It is recognition that the meanings of word precluded the inclusion of additional words. That later became a potential loophole and is the source of our current controversy.

When shown that your definition of marriage is not universal, has no bearing nor footing before 1996 when DOMA was passed, and is not even valid in several states within the US in the present day, you simply repeat yourself that "man and woman" it is the “traditional” definition and completely avoid the issue presented.

I specifically stated that my definition does not need to be universal, it only needs to be valid in the United States. Ancient history and other countries are moot. The debate stems from the traditional definition prior to DOMA which DOMA is some half-assed stop gap to preserve.

As Modest already pointed out, it is not a traditional “definition,” but instead just a traditional “example.”

And it is the example that is required for the point I am making.

You further state that you support benefits and privileges for relationships beyond just "man and woman," but that the relationship of two same sex partners is not a marriage, and warrants a completely different term/label and set of laws.

This is pretty much where you quit reading.

When asked, why? … you say, “see above.” It’s ridiculous, and exemplifies your circular logic.

No matter how many opportunities you are given to read all of the words that comprised the complete post; the complete thought. Again; you didn't read it or you don't understand it.

You have been asked to describe in what secular ways, besides genitals, that same sex couples are different than opposite sex couples, and why our laws and labels should segregate them.

I promise to answer this later in this post. I promise. It may be by pasting in the text you seem to have skipped in my original post and walking though it at an appropriate elementary level, but I will answer.

In response, you’ve stated that you mostly agree with my point that they are the same in every way except genitals, that you mostly agree they should not be treated differently by law, and then in the very next breath you contradict yourself when you say they are different and require special words and special laws.

 

When asked, why? … you AGAIN say, “see above” and divert the discussion toward personal comments and barbs. It’s ridiculous.

Yes. I will demonstrate with a strawman...

 

Someone: Bill, what color is the sky?

Bill: The sky is blue.

Someone: I am waiting for your answer still. When are you going to tell me?

Bill: See above.

Someone: The sky! The Sky! What color is it?

Bill: See above.

Someone: Telling me that you already answered is not answering.

Bill: I swear; if you read what I said you will find the answer.

Someone: OK, lets see... you talk about the sky... and you have the word "is" in there... ... ...but then you really have me lost. Why are you being so evasive about answering my question?

Bill: :shrug:

 

It is worse than discussing a baseball lineup with Lou Costello. Now back to the discussion.

 

I prattled on and on supporting the notion that sex is a part of marriage and then...

Marriage carries with it the burden of sex. Sex carries with it social taboos, disease, child bearing, child rearing, fun, and the full spectrum of emotions. It is social taboos that are at the root of the passion in this issue.

 

The racist laws of the past that prevented inter-racial marriages in some states were founded on the basis of social taboos. The taboo being inter-racial sex. Homosexuality pushing for mainstream acceptance, but it is culturally widely seen as taboo still. This continues to become less so, but it is a long road to get there. Passing laws will not change this attitude, and arrogantly forcing people to change and pushing homosexuality into their faces will not help close the gap. And pretending that gay and straight are the same does not fix it either. In an ideal world it doesn't matter legally if you are gay or straight, but in that same perfect world people still want to be known for who they are. And "married" is part of that identity, not to be wrongly changed in the name of some elusive equality.

 

Should I be able to marry my son? When will that taboo be worthy of so much enthusiastic activism? By going after "marriage" you are discriminating against non-sexual couples. By removing the sex from marriage you remove so much of the meaning of the bond. But only by removing the sex can you have a truly universal relationship. I prefer instead of a universal relationship to state relationships for what they are, and have as many words as are required to describe them all. The law will still be there for everyone, more so than today, and more so than the way the current activist pursuits will provide.

I contend that if the current marriage laws are in fact "bigoted and exclusive" then "gay marriage" or "same sex marriage" is just as bigoted and exclusive. What good does it do for us too just move the line of bigotry we should be looking at options that are all inclusive. This is where the link of sex and marriage becomes a problem. As long as partnerships that society forbids from having sex are forbidden from the benefits provided by marriage then injustice still rules. If you are against a solution that includes these partnerships then you simply a hateful bigot; I'm sorry, but that is what I think.

 

So I would counter and ask you, why should I not be able to marry my son? We love each other. We are raising my other sons together. Why should we not benefit from programs available to other partners?

You have been asked to describe in what secular ways, besides genitals, that same sex couples are different than opposite sex couples, and why our laws and labels should segregate them.

I am saying that the activist agenda you are pushing is no better than what you are trying to defeat. It is concerned only with homosexuals as though they are more deserving than everyone else who is excluded. Since I prefer to think of solutions that are more inclusive AND have any hope of being implemented by a willing society I propose that separate definitions is the best hope of seeing these legal benefits actually realized.

 

Bill

[TheBigDog]

I'm going to take some time to discuss this with you as well, dannie. You state:

The beliefs of the fathers are not how the law is ruled. Most of the fathers were religious. Should their religious beliefs be law? No. They frowned upon homosexuality. Yet didn't they specify the right to Life, Liberty, and the Pursuit of Happiness? Homosexuality is a pursuit of happiness; the pursuit to be able to love whomever you naturally favour.

If I can marry whomever I love, and I love my son, should I be able to marry him?

 

Bill

[TheBigDog]

Hmmm, I am not so sure. Congress has the power, as CraigD explained, to regulate effects of laws between States, especially on divisive issue like this one. I do not think that the Supreme Court would take that power away from Congress, in the light of the FFC which exressly delegates such power to Congress, and previous ruling in favor of political branches of government.

 

Full Faith Clause is one of those clauses that has been only addressed two times in our 200+ years history. Once in 1890's, when the Court explained that the FFC is not self-executing, and the Congress can legislate and change rules for the States. Second time was in the affirmation of the pwoer of Congress, in 1980's, of the Uniform Child Custody Jurisdiciton Act, which regulates jurisdiction between states. Other than that, and since Congress has not acted in this area, it has been impliedly (never expressly) understood to mean exactly what the first sentence of the clause says.

 

IMO, it is more likely that DOMA's exclusive definition of marriage will be struck down on federal level, under the Fifth Amend's equal protection analysis. The Statute is too broad and too narrow at once: it excludes same-sex couples who are joined, live together legally in 5 States in unions and partnerships, from the host of benefits: such distinction has no rational relationship to the purposes of many statutes (but not all), other than moral background. Federal government is the weakest when they legislate on morals, since fed's powers are enumerated and morals are enumerated no where in the Constitution: Only States can legislate on morals.

 

So I think the federal definition will be the first one to go, but others will take a few decades, if gays stay persistent and use proper avenues in States.

Lawcat, I would like to ask a question from another perspective. Assume that I am retaining you to help my organization fight for the legalization of same sex marriage. What should the major focus of our strategy be, and what would our most significant obstacles me in achieving that goal? I promise if you are ever a supreme court candidate that your identity will be securely guarded. :shrug:

 

Bill

[InfiniteNow]

Yes, however it is not circular logic. It is recognition that the meanings of word precluded the inclusion of additional words. That later became a potential loophole and is the source of our current controversy.

No. An equal interpretation is that genitals are irrelevant. You continue to assert that your own personal interpretation is the only correct one, and you are mistaken when doing so. The fact that gender is not mentioned cuts both ways. It does not mandate the fact that "man and woman" is the only definition, as you continue to baselessly assert.

 

 

I specifically stated that my definition does not need to be universal, it only needs to be valid in the United States.

Yes, but as has already been pointed out to you on more than one occasion, it's not even universal within the United States.

 

Same-sex marriage in the United States - Wikipedia, the free encyclopedia

 

 

No matter how many opportunities you are given to read all of the words that comprised the complete post; the complete thought. Again; you didn't read it or you don't understand it.

Is not the better approach for you to then take steps to clarify your argument, instead of bashing me for "failing to read or understand" your last post? Step up. If your point is being misunderstood, then work to assist others in better understanding it.

 

Why is this so much to ask?

 

 

So I would counter and ask you, why should I not be able to marry my son? We love each other. We are raising my other sons together. Why should we not benefit from programs available to other partners?

First, issues of consent.

Second, measurable and demonstrable harm.

Third, homosexuality is NOT THE SAME as pedophilia and incest.

Fourth, I can't believe you actually just asked that... As if the marriage of two same sex individuals is somehow equivalent to a marriage between a father and his son.

[dannieyankee]

"I specifically stated that my definition does not need to be universal, it only needs to be valid in the United States. Ancient history and other countries are moot. "

 

I must protest. I NEVER SPECIFIED THE UNITED STATES AND I AM BECOMING INCREASINGLY INSULTED AT HOW MUCH YOU PEOPLE INSIST THIS IS ALL ABOUT AMERICA. I am not American, and I NEVER mentioned anything about the Constitution or DOMA. This is becoming frustrated. This has NOTHING to do with the States, yet it has become what this entire topic is about. :shrug:

[modest]

it's really no more incorrect to say the 14th amendment applies to federal law through reverse incorporation than it is to say the first amendment applies to state law through incorporation.

I agree that it is no more incorrect, because the bolded statement is 100% correct.

As well as I expected. You might see then what could cause some confusion if you assert (as you have) the truth of both these statements:

• the 14th amendment applies to federal law through reverse incorporation
  
• In essence, it is procedurally wrong to say that the 14th amendment applies to DOMA, which is a federal law.
  

Which are more or less mutually exclusive. I don't want to get into nitpicking the finer details—I'll just say that I personally would not say...

...it is procedurally wrong to say that the 14th amendment applies to DOMA, which is a federal law..

...especially in the context of this thread.

 

IMO, it is more likely that DOMA's exclusive definition of marriage will be struck down on federal level, under the Fifth Amend's equal protection analysis. The Statute is too broad and too narrow at once: it excludes same-sex couples who are joined, live together legally in 5 States in unions and partnerships, from the host of benefits: such distinction has no rational relationship to the purposes of many statutes (but not all), other than moral background.

 

I certainly hope you are correct.

 

~modest

[TheBigDog]

"I specifically stated that my definition does not need to be universal, it only needs to be valid in the United States. Ancient history and other countries are moot. "

 

I must protest. I NEVER SPECIFIED THE UNITED STATES AND I AM BECOMING INCREASINGLY INSULTED AT HOW MUCH YOU PEOPLE INSIST THIS IS ALL ABOUT AMERICA. I am not American, and I NEVER mentioned anything about the Constitution or DOMA. This is becoming frustrated. This has NOTHING to do with the States, yet it has become what this entire topic is about.

My apologies if I was being US centric. I did ask you another question, but I would pose this one as well...

 

Speaking in terms of universal rights, what combinations of people should not have the right to marry?

 

Bill

[InfiniteNow]

Speaking in terms of universal rights, what combinations of people should not have the right to marry?

 

I suggest that you need to open a new thread to discuss that off-topic tangent. As directly evidenced by the thread title, this discussion is about "Gay Marriage."

 

You raise an interesting question, but the simple and plain fact is that it is far off-topic here.

 

 

 

Now, instead of attempting yet another subject change, how about you address the questions which have been put to you instead of engaging in further evasion?

[TheBigDog]

Now, instead of attempting yet another subject change, how about you address the questions which have been put to you instead of engaging in further evasion?

Evasion? I answered every question. I stand by my answers. If you feel that I have had my arguments defeated then go ahead and bask in the glory.

 

Last I see I asked a question that you answered. You are either mocking me with your answer or you still have not bothered to read and understand what I have been saying and asking. Why should I continue to bother with you and this discussion if you are unwilling or unable to do so?

 

Bill

[InfiniteNow]

Correct me if I'm wrong, but your current position appears to be that you are against same sex marriage because you are FOR marriage between a father and his son.

 

Is that accurate?

 

If not, how about you take a stab at clarifying what your position truly is for all of us lesser mortals who are "basking in our glory" and who are just "mocking you" with our "unwillingness" and lack of "ability" to understand?

[dannieyankee]

Actually, I think this question deserves an answer.

 

On belief, I believe abusive incestuous relationships should be illegal. I specify abusive because the vast large majority of incest cases tend to be parent/older relative with young child, often provoking that child to feel compelled to act according to the adult's wishes. The younger they are abused, the higher the chance they will become sexually exploited as adults. This is common knowledge.

 

I also believe polygamous relationships are not legal; a relationship is when two people focus solely on their love for each other; while I have heard of successful threesomes, I mostly hear cases of a man taking on multiple wives, who often fight over their husband, or vice versa. It often leads to jealousy, and does not satisfy the needs of a marriage (two people willing to dedicate much of their time to each other) as it is commonly known that 'Three's a crowd'.

 

Though I do not suggest making such relationships ILLEGAL (meaning successful threesomes and true incestuous love such as the sad case of two people falling in love and later realising they are siblings or something), I suggest not allowing them to marry because, I would gamble, more than 90% of the relationships are dysfunctional. I do, however, propose that incestuous relationships have a ban on procreation.

 

Homosexuality (meaning the 5% of homosexuals) does not have any significant dysfunction other than the fact that no children can be produced.

 

These ideas are based off both this :The Universal Declaration of Human Rights

And common knowledge, such as the fact that incestuous will more than likely lead to disfigurements and various developmental problems with offspring.

 

That article, compared with the following information, leads to believe that homosexual marriage should be legal.

The following states have laws banning gay discrimination:

California

Connecticut

District of Columbia

Hawaii

Illinois

Maine

Maryland

Massachusetts

Minnesota

Nevada

New Hampshire

New Jersey

New Mexico

New York

Rhode Island

Vermont

Washington

Wisconsin.

 

AT least THOSE states should legalise same sex marriage.

 

Notice that most taboo relationships are abusive in nature (AGAIN, not ALWAYS, but most commonly). Homosexuality has no common abuse or problem (other than the disadvantage of not being able to procreate together), yet it is still lumped with these abusive situations. I find that highly odd.

[lawcat]

Lawcat, I would like to ask a question from another perspective. Assume that I am retaining you to help my organization fight for the legalization of same sex marriage. What should the major focus of our strategy be, and what would our most significant obstacles me in achieving that goal? I promise if you are ever a supreme court candidate that your identity will be securely guarded.

 

Bill

 

1. Place State constitutional protections on the basis of same sex in many States; this is done by favorable language ballots. (One of the worst things that happened to gay movement as a reaction to their efforts were enactments of so many anti gay marriage constitutional provisions; those are hard to overturn.) Then, once that is done, you can argue that the State Constitution places a limit on the power of State to deny same-sex couples some familial rights. That is a strong argument, if expressly in Constitution.

I would do a ballot with most unintrusive or inoffensive language, because most people would vote for added protection, but not directly for gay marriage.

 

But what has happened is just the opposite. Gays wanted instant remedy in courts, and the opposition placed anti gay marriage constitutional amendments on ballots for people to vote, and those passed. Big mistake. Bypassing the political process is not the way.

 

2. The most significant obstacle is lack of tradition. Gays must build the tradition. There is no magic wand or easy way. If gays want marriage privileges throughout the U.S., they have to keep getting in familial relationships: unions, partnerships, marriages; whatever is available and most closely resembles marriages in any of the States. After years and likely decades of such practices, gay marriage would become customary and traditional; and more importantly, it would become customary in its most potent sense if under a law that gives gays substantially the same rights as given opposite sex partners. Gays must walk the path first, and such path is available in U.S.

[lawcat]

 

I certainly hope you are correct.

 

~modest

 

Just to clarify, I opined that it is more likely that the definition will be struck down than the full faith and credit jurisdctional provisions, because of the express language in the Constitution as to Congress' power in FFC, and lack of express language as to morality.

 

But, keep in mind. the Court could keep the definition of marriage, but decide that certain statutes, on one by one basis, must extend beneifits to same-sex unions. IN such case, DOMA's definition would stand as a marriage rule, but unions should be defined as well and "union" wording added to individual statutes.

 

In essence, here are two ways of extending benefits to gays: (1) sweeping by new definition of marriage, or (2) selective by statutes. Courts generally prefer to proceed selectively--carefully.

[pamela]

just in case this was overlooked

incest is not being implicated:)

There are far more relationships than just heterosexual and homosexual. Note that both of these relationships are by definition "sexual" (which goes back to my opening discussion of the tie between sex and marriage). I have a son who is 18 years old and suffers from mental illness. In a few months he will no longer qualify for medical benefits under my insurance because he will be done with high school (he is not going to college). So I said to myself, I am getting divorced, why can't he become my domestic partner? While Ohio does not have domestic partnerships by law, my company does recognize them for the purposes of benefits. Well, in order to qualify for a domestic partnership I would need to be "living together as a man and wife" or essentially saying that I am having a sexual relationship with my son. I love my son and he loves me; does that mean we have the right to marry each other? After all, love is the test of why people get married. And we are being put in a financial burden because of the insensitive laws that exist. The retail cost of his prescriptions run in the neighborhood of $2000/month. Why should we have to suffer when opposite sex couples can simply marry and get these benefits?

 

Marriage carries with it the burden of sex. Sex carries with it social taboos, disease, child bearing, child rearing, fun, and the full spectrum of emotions. It is social taboos that are at the root of the passion in this issue.

 

The racist laws of the past that prevented inter-racial marriages in some states were founded on the basis of social taboos. The taboo being inter-racial sex. Homosexuality pushing for mainstream acceptance, but it is culturally widely seen as taboo still. This continues to become less so, but it is a long road to get there. Passing laws will not change this attitude, and arrogantly forcing people to change and pushing homosexuality into their faces will not help close the gap. And pretending that gay and straight are the same does not fix it either. In an ideal world it doesn't matter legally if you are gay or straight, but in that same perfect world people still want to be known for who they are. And "married" is part of that identity, not to be wrongly changed in the name of some elusive equality.

 

Should I be able to marry my son? When will that taboo be worthy of so much enthusiastic activism? By going after "marriage" you are discriminating against non-sexual couples. By removing the sex from marriage you remove so much of the meaning of the bond. But only by removing the sex can you have a truly universal relationship. I prefer instead of a universal relationship to state relationships for what they are, and have as many words as are required to describe them all. The law will still be there for everyone, more so than today, and more so than the way the current activist pursuits will provide.

[InfiniteNow]

The state already provides for benefits among blood relations. It's a false comparison. In roughly 86% of our nation, two same sex partners are NOT afforded the same benefits (nor ability to attain benefits) as are a parent/child or husband/wife pairing.