I read the Reed decision and do not see how it involved anything other than basic equal protection analysis. While it is true the Court there acknowledged a valid state purpose was arguably involved, the ruling held that the statute in question sought to accomplish that objective in an arbitrary fashion. That it was arbitrary, insofar as there was literally no reason on the face of it even argued for to choose one sex over the other, which the statute did, is beyond question. The choice involved in drafting the statute, in other words, was without a rational basis. I don't read Reed (heh) as standing for some "rational basis plus" standard.
That isn't the part of his post I was addressing. You're kidding right? It's literally the NEXT sentence after the one you bolded where I say it. I'll break it down for you I guess, since you apparently have trouble reading. You said: "Gay marriage proponents want to skip the analysis that views the question as involving social behavior, and argue that sexual orientation is an immutable characteristic. At best for their argument it is a mixed question. " Then went on to claim it as a behavior rather than a characteristic, skipping the same analysis you just complained others were skipping. That's being a hypocrite. Right, because they are sexually attracted to either sex. You are mixing things up. Anyone (gay, straight, bisexual, whatever) can choose to engage in sexual activity with either or both sexes. You can't however, choose who to be attracted to. Try it. Pick a random person you aren't attracted to and then change your mind and have a strong sexual attraction to them. Or pick someone you are attracted to and decide to stop. You can't do it. But you don't have to be attracted to someone to engage in sexual activity with them. So yes, sexual activity is a behavior. But sexual attraction is not.
I certainly agree with this. To me the issue is where to draw the line, and it seems to me that the obvious place is where your behavior infringes on others. Two men or two women getting married doesn't infringe on anyone anymore than a man and woman getting married does, and so there is no reason for anyone to restrict it.
While you and I might agree with this thought it's still merely an opinion and not a fact. Homosexual behavior, not the attraction, the pre-disposition, the behavior is very offensive to many people. Many people think the mainstreaming of this behavior through the law is a huge infringement on them and their children. Now while I don't agree with them my disagreeing with them doesn't make it a fact and it certainly doesn't give them a Constitutional right.
Right, but that's a different issue. If that's the case, they should be trying to ban homosexual behavior. Marriage, to the government, is nothing more than a legal contract. Whether homosexual couples are allowed to marry or not doesn't allow or prevent them from publicly being a homosexual or publicly engaging in homosexual activities.
Marriage is way more than a contract. Marriage is the promotion of nuclear families. Successful nuclear families are the bedrock of our entire society. Why give home owners a tax deduction that renters don't get? Home ownership is good for the community. Traditional nuclear families are good for the community. I would argue promoting monogamy, household formation and a different kind of nuclear family is also good for the community. That's a good reason for the community to move toward including gay marriage but it's not constitutionally guaranteed.
You apparently do not understand the meaning of the term hypocrite, so perhaps I should not be upset that you called me one. In the post you originally called me a hypocrite, you quoted a post I posted to Barcs about incest, and whether a social and legal approval of incest by adults would increase the incidence of that activity in children. That is an entirely separate question, one having to do with the effect of governmental policy on social behavior, from the question of whether homosexual activity should be looked on purely as a trait or instead a mix of a trait and behavior. You obviously lost the track of the argument there, since behavior by people is very much a relevant subject of governmental activity, or rather what if any response by government should obtain in regard to social behavior. I have tried to explain this to you before, last year I seem to recall, and you seem either too stupid to understand it, or willfully choose not to acknowledge the point. The point is it is not analogous to have a law that distinguishes among people due to immutable characteristics argued to be the same as a law that distinguishes types of behaviors. It may be relevant if the behavior in question is associated with some trait that might be immutable, but that does not make it the same as a law based solely on a distinction between those having differing immutable characteristics. I am going to assume you will not concede this point, and in fact either pretend to not understand it or perhaps you really are too stupid to see the point. In either event I doubt much in the way of valuable discussion will proceed from your answer. Similarly the point about bisexuality was completely flubbed by you. People who engage in bisexual activities are not merely people attracted to people of both sexes. They also ENGAGE IN SEXUAL ACTIVITY with both sexes, and in each individual case where they do so, they ACT UPON THEIR DESIRE TO ENGAGE IN SUCH ACTIVITY BY CHOOSING TO DO SO. In other words, it is not merely a matter of mere attraction.
That was my whole point with the tradition argument. It doesn't matter when mainstream society made it illegal. It's a terrible argument. When did marriage between a black and white person become a right before the civil rights movement? Why would it be fair to allow that? It goes against tradition lol. Humans rights are human rights. What that argument essentially says, is that since the right hasn't been granted yet by the constitution, that it shouldn't be. It's completely illogical. WE THE PEOPLE. Not we the straight white males. Humans should ALL have equal rights. Restricting one group from an activity that everyone else can do goes against this very concept that the country was founded on. I don't care that governments discriminate all the time. That doesn't make it right. Serial killers kill all the time, that's what they do. Who are we to stop them? What bugs and worms crawled out of ooze? I was talking about the evolution of sexual reproduction and demonstrating how it has changed over time. Homosexuality has been around longer than humans have, so ignoring it or repressing it is silly. People just need to realize where we came from, we are all equal and the same. People blindly believe a religion and expect the rest of the world to do the same. The problem is that the belief is not usually logical and DOES AND HAS caused harm and suffering to others, something that allowing homosexual marriage will not do. No it's not. We already went over this. Societal tradition prohibits inter racial marriage and allows slavery. It is NOT a valid reason, in the least. It is a cop out when it comes to discussing the issue itself and how it affects people TODAY. The homophobes intentionally divert the issue with stupid arguments like this. Definitions of words change all the time, clinging onto one specific definition as defined thousands of years ago is ludicrous. It's a nonsequitar and has nothing to do with the argument itself. It is simply a way to attempt to justify hatred of a group of people because people think it's nasty and can't relate to it. I still haven't seen a single valid factual argument against homosexual marriage. Every single one invokes speculation, guesswork, and citing the past, which is useless. You don't definitively or legally define something by lack of evidence from the other side. Absence of evidence is not evidence of absence. If neither side can prove anything about that, then we should move on and explore the actual facts, not the non-facts. Right now there are no facts that suggest any sociological problems by allowing it. If they can present facts of the contrary they might have a point, but they don't. I wasn't advocating completely ignoring tradition, I was saying that tradition in itself isn't a good reason to argue against giving equal rights to a group of people. You need more than that. Traditionally, when groups are oppressed, they become upset and angry and fight for their rights, usually succeeding. There's a tradition we can't ignore. The right to protest and the right to pursue happiness. Pursuit of happiness gets trampled by not allowed gay marriage. One tradition that is constant in society is CHANGE. Conservatives and religious nutjobs can't stand this, but it's the most basic fact in the history of our planet and cannot be denied. Tradition shows that gays will get the right to marry eventually, just as all groups who have fought for this right in the past have. It's just a matter of how long it takes and how persistent the bigots are. People seriously act like their life will be negatively affected by this, but it won't. They'll forget about it for a while, until some new group starts asking for equality, and then they'll go back to the same nonsensical arguments and bigotry.
These multi-post responses get tiresome, and some of this might get repetitive, because the issue we’re talking about is just clear as a bell. No one with an unsuspended law license would – or HAS – argued to a real-live judge that tradition isn’t a valid Constitutional reason for upholding a man-woman definition of marriage. It’s an indisputable Constitutional point. Don’t blame me, and don’t try to argue against it. It’s just a truism. Which is why the gay marriage lawyers didn’t bother with it. Instead, they spent their time in argument trying to convince the Court that the standard needed to be higher. Except, the Court had the opportunity to do just that in a case concerning a Colorado statute not too long ago. None of the justices chose to do that. What’s more, the liberal wing of the Court knows this well; which is why they spent their time pressing for a legal standard that was just a tad higher. Because tradition IS a Constitutionally valid reason for the law. That bold part should be easily answerable by anyone who has studied US history. And it’s good you brought this up, because so many people drop the issue of gay marriage into the same category as race. As if the history were even remotely comparable. It should be galling to minority races; but from a Constitutional perspective, it’s a point we shouldn’t waste much time arguing. In fairness to you, the gay marriage plaintiffs tried to make this point. The Court didn’t spend very much time on it, though. Because they know that we give laws concerning race the highest scrutiny. Not so, homosexuality. You could argue that we SHOULD, if you want. Again, the Court has rejected that argument already. We adopted the 13th Amendment to remove all the “badges and incidents of slavery.” You know this. Miscegenation statutes were adopted specifically to prevent intermarriage with slaves. You can hold your breath and will it to be that the Court considers marriage between two people of the same sex the same way it considers marriage between people of two races. I could give you better arguments, though. Also, I think it’s important to highlight that blue part up there, because it shows a basic misunderstanding that you have about our Constitution and our courts. We don’t GRANT people rights. I hope you can shake that idea, because so much of our daily lives revolves around the proper concept that we are born with all of our rights, and they are inalienable. We have a Bill of Rights in our Constitution to protect them, not to grant them. And, although we may all be “created equal,” our Constitution doesn’t waste time making sure that everyone remains equal. It never could, so it doesn’t try. That’s the whole point here. I won’t spend a lot of time with this point, because it’s really no point at all. You REALLYREALLYREALLY think that all governments everywhere should recognize gay marriage. I get it. But if you strip aside the emotion that limits your argument to just moral outrage, you’ll realize that a person can be in favor of gay marriage and oppose stretching the Constitution to require all states and all people to acknowledge it. I’m sorry, it is. And yes, we did go over the point already. But I’m making a Constitutional argument that very few people who know Constitutional law would dispute, and you’re stuck in the world of moral outrage. The issue is in front of a Court, not a book club. Also, it's just factually incorrect to suggest that societal tradition prohibited interracial marriage and allowed slavery. We’re talking about a court case. So, yes, you do. Again, this is the way our laws and our courts work. If you bring a legal grievance into a court, you have a legal burden to prove your case with facts, testimony, studies, learned opinions. You know – evidence. The other party doesn’t have to prove anything at all. Have you gone through the testimony or the evidence that was presented to the court? It’s all available online. And the great part for you is that you don’t even need to agree with the side you don’t like. You don’t understand the point before the Court. Tradition is absolutely sufficient to meet the standard, unless you change the Constitutional standard. If you don’t understand what I mean by that, then it makes no sense to discuss this further.
As many regular posters who post on the threads here having political content know, I am usually in disagreement with Jack. And here I will concede might be one of those cases where we do not disagree on the policy issue itself, or more accurately seem to have areas of agreement along with some areas of disagreement. But when it comes to accurately describing the way the legal system works, and how Constitutional law in particular works, Jack has been much more right than wrong here. It is distressing to see partisans such as Barcs showing a lack of understanding of what Jack is describing. In some fairness to Barcs, perhaps part of the problem historically has been that the courts, with both liberal and conservative results depending on the makeup of the court in question, do engage from time to time in what amounts to the creation of some new policy. Otherwise termed judicial activism, which of course is the kind of term opponents to such actions use. No doubt the supporters of gay marriage feel, even if they understand such issues as the varying standards of equal protection, that now is the time for the S Ct to make policy in this area, and overturn the various state laws that limit marriage to between a man and woman. Of course it would probably be a strategic mistake for such proponents to say that is the essence of what is involved here. And so we hear arguments made that would, if accepted, make a ruling on behalf of the plaintiffs here appear more incrementalist, more in keeping with application of time tested and more judicial than legislative approaches. But imo there are problems with those judicial approaches with the pro gay marriage arguments. No doubt this is a source of frustration and annoyance to proponents of the homosexual agenda, but these issues are real.
SundayJack, I appreciate you taking the time to more thoroughly explain your position. It makes more sense now and I see where you are coming from. To avoid going back and forth and repeating points. I'm going to break it down into a few points and respond to the couple I felt we disagree on. 1. My main point: When I jumped into the thread again, I was asking about how allowing gays to marry could cause harm or suffering to others. Nobody has done this as of yet without speculating. This is as valid a reason as any to legalize it. Changing a definition of a word legally does not harm anybody or prevent anybody else from living their lives as they see fit. I know that I'm arguing based on my moral core values, but it's not just emotional. It's logical to treat others how you would like to be treated, as you will form better relationships. Also, historically, oppression is bad. Looking back on things like slavery and segregation, it seems almost laughable that people actually acted like that. I firmly believe one day we'll look back on gay marriage like this, but obviously not as extreme. 2. Tradition and constitution: I understand where you are coming from, but it seems that you aren't really arguing against me. You are bringing up why tradition might be considered constitutionally valid, and I can see that, however it is not the be all end all when it comes to law or logic. Tradition is simply customs that we are used to. "It is the way it is" isn't a valid argument for maintaining the status quo, I'm sorry. If that's not what you are arguing then we essentially agree. 3. Race and history: I know that the history of civil rights is not the same as gay marriage. Many folks get deeply offended when the 2 are compared, however they are similar in this fact: People are being oppressed because of something they have no control over. They are being judged as unworthy to marry because of their sexual orientation (in the past the judgement was made based on race). It doesn't matter that the civil rights movement was fighting much more or that the oppression was much worse. Oppression should not be tolerated, even if it's the tiniest thing. It should also be noted that for the most part, gay marriage advocates do not usually bring this argument up, unless it's to counter the tradition argument. It is not an argument to legalize it, it's a fact that tradition is not enough on its own to justify something like that. It is also well known that homophobia runs rampant in the black community, which is a prime reason why so many get offended by being compared to a homosexual. What they don't realize, is that the purpose is to show the oppression, not so say they are the same thing. It's not just moral outrage and emotion. It's logical to treat other people equally, and to not judge them based on superficial differences in a appearance or behavior. But again, the bolded argument can be applied to inter racial marriage as well. Why stretch the constitution to force all the states to recognize inter racial marriage? I know you don't like that comparison, but it's 100% valid, because you brought up an argument that shows clear double standards. Arguments like that should be avoided altogether and yes, part of the problem is the standards of the court system. If it were up to me, I'd stick with science rather than some old judge deciding things about an entire group of people. The last italicized statement is confusing. My knowledge of history suggests it WAS prohibited and slavery WAS allowed. Slavery was indeed a tradition for a long time. Maybe your definition of tradition is different from mine? Also moral outrage and equality is a valid reason, it's not just about stretching the constitution. That seems more like an excuse for not wanting to take the time and do the work, although I'm not as familiar with constitutional law. If I was, I would be trying to fit the moral argument with the constitutional one. It seems like they are apples and oranges, however. In court you need facts to prove something. You can't just state it and expect it to stand until the other side proves you wrong. Burden of proof does not work that way. If you make the statement, you need to prove it or it is not admissible evidence. It's like the "you can't prove god doesn't exist" nonsense. If something cannot be proven the argument should be ignored by the judge and jury. That applies to both sides.
To some, getting pissed off at others is considered legitimate harm (to the provocateur). Think of the oppressed.
What does that even mean? Human rights are a developing concept based on our experience. The natural order of things is we live on a food chain where the strong eat the week. Without developing social concepts your rights are based on nothing more than your personal position on the food chain. Misogyny is still practiced in most of the world including the "Secular" world. Killing those we see as different is as normal as respecting those who are different. Human rights are most assuredly developed concepts over time.
This is very confusing, maybe it's just the wording. How does being angry at somebody, cause harm or suffering to anybody? Let's say I'm angry at you. Does me being angry make you suffer? No, it doesn't because it's MY emotion. Does it make me suffer? No it doesn't, because I can ignore your behavior or control my emotions. If I do suffer as a result I probably would need to see a shrink. No matter what you do in the world, it will piss somebody off. You can't please everybody, but simply being angry doesn't cause any suffering unless you take it to the next level and initiate harmful actions because you can't control your emotion. But then, the actions are what is harmful, not the emotion itself.
Perhaps I worded that poorly. When I'm talking about human rights, I'm talking about the equality of all humans and treatment with respect to that fact. It's not about constitutional rights or technical law as dictated by governments and rulers. It's about the undeniable principles of human existence that allow for them to function as an intelligent society where equality and empathy are the key principles in its foundation. I think that's why I kind of went off onto a tangent with Sunday Jack about constitution. It was really unintentional. America has attempted to define this principle but has not ever actually practiced it. Take the phrase "All people are created equal". I don't understand how that can be a main principle that you found your country on, when it is selectively applied. If homosexuals cannot marry, then they cannot possibly be considered equal, which goes against our "prime directive" so to speak. It really is that simple. If you want to say all people are equal, then actually practice it. Don't dance around it like you did with so many other races and peoples throughout history. And when I call equality a fact of existence, I'm not saying that everybody is exactly the same in all ways. I'm saying that everybody has the inherent right to exist and live free from the oppression of others. This right exists regardless of how past societies have trampled on it or selectively applied it. It is indeed a fact and nobody can provide any evidence to suggest otherwise.
*To clarify, my previous response was sarcastic, meant to mock those who get pissed off at other peoples' behavior as though they can't look away or get a life or DIAF. Are you expressing your emotions? How can I ignore your anger if it's been adopted into law? Of course, if you internalize the anger, it's not *directly* harmful. However, even saying angry comments is extremely harmful by inflicting emotional abuse upon someone else, invalidating their feelings, etc. Furthermore, I would argue that the internalization of said anger leads to situations like this http://www.huffingtonpost.com/2013/04/11/gay-man-arrested-missouri-hospital_n_3060488.html And because the federal laws are insufficient in this area, the oppressed suffer while the angry get their wine and cheese. If you've ever been discriminated against for something that's out of your control then you'll know what I'm talking about but it's difficult to illustrate exactly how a bunch of people talking about gays as though their animals makes (for example) one of my closest friends feel inhumane and sub-human. I can't explain their emotional reaction but I can argue that their right to self-preservation and personal autonomy wholly trumps the right to express anger without question.
Regarding the bolded part, I must say this is the first time I have heard anyone, whether pro or con gay marriage, make the argument that the difference between marriage between a man and a woman and gay marriage is superficial. It is not superficial, for the obvious reason that procreation cannot follow in the normal course from the latter. One important purpose of marriage as a civil institution is that it is the preferred framework for raising children. That is not a superficial difference, and frankly I have never heard anyone arguing that it should be seen as such. I have elsewhere shown as have others that your analogy between lack of recognition for gay marriages and the ban on interracial marriage is very weak, failing to recognize that such laws were on their face in violation of the Civil War amendments to the Constitution, among other factors. I also find your arguments that the law should treat everyone the same as unpersuasive. The law constantly makes distinctions among people, and even more so among behaviors. The essence of equal protection as a concept may wel start with equal treatment as a basic concept, but a concept that immediately also recognizes a basis for treating people differently, based on the applicable standard of scrutiny applied, when there is a sufficient state purpose for doing so. I believe there are Constitutionally valid reasons for treating homosexual and heterosexual marriage differently. If there are, the courts should not be the venue for changing the law. The basis for changing the law becomes essentially a policy, and not Constitutional, argument. And the proper venue for changing policy of that sort is the legislature, not the courts.
Somebody's sexual orientation/attraction is just as superficial as skin color, hair color, height, or religion. It is an irrelevant factor and folks should not be judged or persecuted based on this. The procreation argument has already been shot down as there is no factual basis to show any harm arising by raising kids with a same sex couple OR in not having children. In fact, I applaud couples who do not have children, with the world so overpopulated. You might as well ban impotent people from marriage if procreation is the argument. Obviously it's a weak argument with double standards, JUST LIKE THE TRADITION ARGUMENT. Who cares about preferred frameworks, lol. It's irrelevant and in no way shape or form does it demonstrate the harm in gay marriage. One important purpose of marriage is love. People seem to forget the one that matters most. Yes, the difference IS superficial. It's just another factor that people are wrongly judged over. It's no different than judging somebody because their skin is a different color. Of course it's not the exact same thing, but it has to do with prejudice. I already explained that the argument of inter racial marriage is only viable when debunking the tradition argument. It is not an argument in itself for legalization gay marriage. It is a double standard that becomes exposed when the opposition to gay marriage talk about "the way it's been", because it brings up a whole gaggle of traditions that have been wrong and immoral in many ways. You can't use double standards as a logical reason for a decision. People seem to miss this every time.
The procreation argument has not been shot down. Homosexual unions are incapable of producing children that are the children of both parties. There is a valid state purpose in encouraging the formation of families where the biological parents of the child enter into or more accurately in most cases remain in a union that becomes the framework for raising the children. While obviously adoption is a fallback arrangement as it were, for equal protection purposes the interest of the state in encouraging the family framework that is optimal for raising children is sufficient. In that connection and at the very least the state may presume that children that are born into a heterosexual marriage are the offspring of those parents, obviating the need for any legal proceedings to establish legal parentage, as is the case with adoptions. This may seem trivial to those pursuing the gay agenda here, but it legally is not trivial, and is sufficient for equal protection purposes. Your argument distinguishing between those marriages that produce children and those that do not is problematic on several counts. Most obviously enforcement of such a distinction would involve an ACTIVE involvement by the state to enforce such a distinction, contrasting the passive role the state plays in doing nothing more than granting the marriage license to those who apply. In addition it ignores that childbirth does not precede the union of the parents. There is a valid state interest, obviously, in encouraging those who have conceived the child to be and remain together not only after the child is born, but during pregancy. n short it makes no sense to require that the birth of a child be a condition precedent to marriage.
