Should gay people be allowed to spawn?

[Annie-Xmas]

Neil Patrick Harris and his partner David Bertka are expecting twins via a surogate mother. My sister the lesbian's parnter had two children via AID. Mrs. Hal Briston was a gestational surrogate for a gay couple.

What are thoughts on this?

[Bricker]

How should we stop them? Judo?

A flippant response, but seriously: I can't imagine much more odious infringement on liberty than telling a person they're not allowed to procreate.

[Buck Godot]

What are thoughts on this?

Congratulations!
Is it a Boy or a Girl?
Are they handing out cigars?

Other than that I don't think its much of my business.

[Marley23]

When did this become society's business, or the government's?

[Nava]

Well, as you know, gay people have been spawning (what a charming expression) since there is gay people, they just did it the old-fashioned way. Same as fertile straights, come to think of it.

Now, there are several questions one may be looking at:
1) Should gay people be allowed to spawn?
A: What do you propose as an alternative, forced sterilization? For what Kinsey number ranges, extreme gayness, bi, has looked at someone from the same gender and thought "nice ass" once?

2) Should gay people be able to use assisted fertility methods?
A: Same as straights, yes.

3) Should that be covered under whatever health schemes are in place locally?
A: In my opinion, those schemes shouldn't take sexual orientation into account.

[Contrapuntal]

Neil Patrick Harris and his partner David Bertka are expecting twins via a surogate mother. My sister the lesbian's parnter had two children via AID. Mrs. Hal Briston was a gestational surrogate for a gay couple.

What are thoughts on this?Thoughts on this are just fine.

[El_Kabong]

Neil Patrick Harris and his partner David Bertka are expecting twins via a surogate mother. My sister the lesbian's parnter had two children via AID. Mrs. Hal Briston was a gestational surrogate for a gay couple.

What are thoughts on this?


Explain to me what, in your view, is the harm of gay people 'spawning', as you put it, and maybe we can move on from there.

[Rhythmdvl]

How should we stop them?Fabulously!
A flippant response, but seriously: I can't imagine much more odious infringement on liberty than telling a person they're not allowed to procreate.But it wouldn't contravene the text of the Federal Constitution. Only an activist judge would strike such a law down.

[Chessic Sense]

Every piece of literature I've seen on the issue has concluded that gay couples are equal, if not better, at parenting than straights. While I don't find it too hard to dismiss the "better" notion as self-selection bias*, I don't see any reason why a gay couple shouldn't have a baby.

*How many straight couples have "oops" babies? How many gay couples? Which do you think would be better at raising kids?

[Czarcasm]

Neil Patrick Harris and his partner David Bertka are expecting twins via a surogate mother. My sister the lesbian's parnter had two children via AID. Mrs. Hal Briston was a gestational surrogate for a gay couple.

What are thoughts on this?I've got no problem with it.
Since you brought it up in the first place, what are your thoughts on it?

[kayaker]

If anything, maybe we should stop straight people from spawning.

[sandra_nz]

I think it's fantastic when people who dearly want to become parents but aren't able through traditional means are able to find a way of doing so.

[John Mace]

I don't know what the OP is getting at. Even the most religious, conservative person on this MB isn't going to support a ban on gay people "spawning".

As for me, as long as they can swim upriver, I say let them spawn 'til dawn!

[WhyNot]

Jeez, Annie, was your account hacked? Or is this a parody of another thread I missed? It doesn't sound like you in the OP.

But...just in case you're off your meds* or somethin' and want an actual answer, I'll join the chorus with: my thoughts are somewhere between "none of my business" and "Congratulations! What a cute baby! My babysitting rates start at $10 an hour," depending on how well I know the spawners in question.


*rhetorically speaking. Annie's not on or off any pertinent meds that I know of. ;)

[gonzomax]

It is none of my business.

[Hamlet]

How should we stop them? Judo?

A flippant response, but seriously: I can't imagine much more odious infringement on liberty than telling a person they're not allowed to procreate.Under your legal analysis though, it would be "Constitutional", wouldn't it?

[Myrnalene]

What the hell are you trying to do in this thread?

[Bricker]

How should we stop them?Fabulously!
A flippant response, but seriously: I can't imagine much more odious infringement on liberty than telling a person they're not allowed to procreate.But it wouldn't contravene the text of the Federal Constitution. Only an activist judge would strike such a law down.

Well, I suppose it depends on your definition of 'activist.'

It's true that the text of the Constitution is silent on the precise issue. But there is long-standing case law that supports the proposition that procreation is a basic liberty. In 1942, in Skinner v. Oklahoma, the court discussed a law permitting sterilization of habitual criminals, and said: The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.

And there is long-standing case law that the the Constitution protects liberties that are basic, that are implied by th every concept of ordered liberty, as discussed in 1937's Palko v. Connecticut: In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states.

You could perhaps argue that the judges in 1939 and 1942 were activist. But even if they were, it's too late to correct that error. Today, those concepts are a basic part of our jurisprudence, with substantial portions of constitutional framework underpinned by their rationale. Upsetting the applecart by making such a sweeping change would itself be activist.

[Bricker]

How should we stop them? Judo?

A flippant response, but seriously: I can't imagine much more odious infringement on liberty than telling a person they're not allowed to procreate.Under your legal analysis though, it would be "Constitutional", wouldn't it?

See above.

[Czarcasm]

Jeez, Annie, was your account hacked? Or is this a parody of another thread I missed? It doesn't sound like you in the OP.

But...just in case you're off your meds* or somethin' and want an actual answer, I'll join the chorus with: my thoughts are somewhere between "none of my business" and "Congratulations! What a cute baby! My babysitting rates start at $10 an hour," depending on how well I know the spawners in question.


*rhetorically speaking. Annie's not on or off any pertinent meds that I know of. ;)In her defense, I don't think her post indicates that she is against it, and I hope she just used the term "spawn" as a cute shortcut.

[Marley23]

Jeez, Annie, was your account hacked? Or is this a parody of another thread I missed? It doesn't sound like you in the OP.
I think people may be assuming Annie X-Mas disapproves of gay people having children when she might've just been asking how people feel about the subject. She started a thread in Cafe Society about the news, too. (http://boards.straightdope.com/sdmb/showthread.php?p=12805948)

[Annie-Xmas]

Whoa, people, I have made many, many references to my sister the lesbian, her partner and their family. I know that they are better parents than our parents ever were. I am in no way against gay parenting.

I was mostly upset at the shit being flung about Harris and Bertka on varous Internet sites, and wanted to get some feedback on the idea.

[John Mace]

Whoa, people, I have made many, many references to my sister the lesbian, her partner and their family. I know that they are better parents than our parents ever were. I am in no way against gay parenting.

I was mostly upset at the shit being flung about Harris and Bertka on varous Internet sites, and wanted to get some feedback on the idea.

How many posters have you ever encountered here who supported a ban on gays reproducing? And I'm not talking about a few trolls who have showed up and been banned.

[Hamlet]

Under your legal analysis though, it would be "Constitutional", wouldn't it?

See above.I asked about YOUR view of the Constitution, not prior caselaw. I have a sneaking suspicion that you tend to hide YOUR view on the Constitution with posts like yours above, and I want to have that suspicion alleviated.

[Bricker]

Whoa, people, I have made many, many references to my sister the lesbian, her partner and their family. I know that they are better parents than our parents ever were. I am in no way against gay parenting.

I was mostly upset at the shit being flung about Harris and Bertka on varous Internet sites, and wanted to get some feedback on the idea.

I knew you were not likely to be upset at the idea, you being... well.. you. :)

But this is not to say that the process doesn't have its difficulties, difficulties that also arise when an opposite-sex couple that is mutually infertile explores other options.

For example: what rights, if any, does the surrogate mother have to the child?

In the case of opposite sex couples, there is a possibility of the biological parents being the intended parents, with the surrogate mother serving only as a host. (As Phoebe Buffay's character on Friends put it when she was a surrogate mother for her brother and brother's wife: "No, no, no! It's totally their bun. I'm just the oven.") And of course, in that circumstance, we might say that the surrogate mother has very little right to change her mind and try to keep the baby.

But does she, even then, have no right at all?

And what of the more common situation for same-sex couples, and not unheard of for opposite sex couples: the surrogate mother is also a biological mother, but has agreed ahead of time to relinquish parental rights after birth? May she change her mind?

None of these are reasons to forbid the practice, but all suggest that the law is not yet quite caught up to the science and the society here.

[Bricker]

See above.I asked about YOUR view of the Constitution, not prior caselaw. I have a sneaking suspicion that you tend to hide YOUR view on the Constitution with posts like yours above, and I want to have that suspicion alleviated.

So if I were a judge today, sitting in federal district court, what would I do?

I would strike down a law that purported to forbid homosexuals from reproducing as violative of the Fourteenth Amendment, and cite Skinner as the precedent I was relying upon.

[XT]

Wait....gay people SPAWN?? I thought they reproduced by parthenogenesis...

(for the humor impaired, as some posting to the thread seem to be, this is a 'joke')

-XT

[Myrnalene]

Whoa, people, I have made many, many references to my sister the lesbian, her partner and their family. I know that they are better parents than our parents ever were. I am in no way against gay parenting.


Why do you always, always, always refer to you sister as your sisterthelesbian? Even in contexts where it is clear (such as when discussing her life with her partner) that she is a lesbian, so the addendum is not needed? You have done it twice already just in this thread.

It's sort of makes you look like she's just a token for you, just so you know. It's a little gross.

[Hamlet]

So if I were a judge today, sitting in federal district court, what would I do?No. As I already said: "I asked about YOUR view of the Constitution, not prior caselaw." Ignore prior caselaw and tell me YOUR view.

[Der Trihs]

Every piece of literature I've seen on the issue has concluded that gay couples are equal, if not better, at parenting than straights. While I don't find it too hard to dismiss the "better" notion as self-selection bias*, I don't see any reason why a gay couple shouldn't have a baby.

*How many straight couples have "oops" babies? How many gay couples? Which do you think would be better at raising kids?I'm not sure that the fact that same sex couples are far less likely to accidentally have children qualifies as self selection bias; I'd consider it a genuine advantage.

[Enderw24]

Gay males can only spawn if they find a like-minded lesbian couple to procreate with. The gay males can then impregnate the females and the resulting two babies be divided equally amongst the couples (resulting in one each and not a double-Solomonic approach).
If a single baby were to be produced from the coupling, the males shall get the child on Monday, Wednesdays and Fridays while the females get the offspring on Tuesdays, Thursdays and Saturdays. Fertility tests shall be performed on the non-producing couple to determine if the fault lay with the male or female. Whomever is to blame, the other couple shall receive the child on Sundays.
In the event of fraternal twins, both twins shall remain with the females as it was the mother who produced two eggs. In the event of identical twins, both twins shall go to the male as it was his powerful sperm that ripped the egg in two.
In the rare case of triplets, one child shall go to each couple with the third to be determined by a best out of five coinflip.
In order to ensure accuracy from the start, both couples must register with and be licensed by the Department of Health and Human Services and each of their procreation sessions must be witnessed by an independent governmental official.

I believe these strict procedures will lead to appropriate spawning scenarios to be implemented in the fairest manner possible.

[needscoffee]

I believe that people who keep their stuffed animals inside the rear window of their cars should be discouraged from spawning.

[Bricker]

So if I were a judge today, sitting in federal district court, what would I do?No. As I already said: "I asked about YOUR view of the Constitution, not prior caselaw." Ignore prior caselaw and tell me YOUR view.

My view of what the Constitution requires? A law that purported to forbid homosexuals from reproducing is violative of the Fourteenth Amendment.

[Gorsnak]

Not only should they be allowed to spawn, but we should construct queer ladders to allow them to get past the dams on the route upstream.

[Rhythmdvl]

No. As I already said: "I asked about YOUR view of the Constitution, not prior caselaw." Ignore prior caselaw and tell me YOUR view.

My view of what the Constitution requires? A law that purported to forbid homosexuals from reproducing is violative of the Fourteenth Amendment.And since there is no text to that effect, you see why textualist/originalist arguments may be pursuasive, but are not all encompassing with regards to Constitutional theory and interpretation.

Welcome to the dark side. I hear there are cookies somewhere.

[Hamlet]

My view of what the Constitution requires? A law that purported to forbid homosexuals from reproducing is violative of the Fourteenth Amendment.Care to expound? Surely you don't think the founders of the 14th Amendment intended it to cover homosexuals having the right to become parents. Is it procedural due process? If the law included a hearing, attorney, etc.? Fine then?

What about the will of the people? Isn't procreative ability, morality, and tradition enough of a rational basis for the legislation to survive?

[Bricker]

My view of what the Constitution requires? A law that purported to forbid homosexuals from reproducing is violative of the Fourteenth Amendment.And since there is no text to that effect, you see why textualist/originalist arguments may be pursuasive, but are not all encompassing with regards to Constitutional theory and interpretation.

Welcome to the dark side. I hear there are cookies somewhere.

Care to expound? Surely you don't think the founders of the 14th Amendment intended it to cover homosexuals having the right to become parents. Is it procedural due process? If the law included a hearing, attorney, etc.? Fine then?

What about the will of the people? Isn't procreative ability, morality, and tradition enough of a rational basis for the legislation to survive?

Apparently I'm not allowed to mention things like caselaw, so I'm not sure how I can expound.

My conclusion is required by case law. If this question were being presented tabula rasa, in 1869, let's say, then my answer would potentially be different, and would turn on just how the law actually prevented the conception of babies by homosexuals.

[Hamlet]

Apparently I'm not allowed to mention things like caselaw, so I'm not sure how I can expound.These questions really aren't that difficult, Bricker. Although I do understand why you want to fight the hypothetical, and why you seem to have so much trouble answering the questions.

My conclusion is required by case law. If this question were being presented tabula rasa, in 1869, let's say, then my answer would be different.And your answer would be?

I know you see where I'm going. You saw it with the first question I asked, and have been fighting tooth and nail to avoid actually admitting it.

[Really Not All That Bright]

It's true that the text of the Constitution is silent on the precise issue. But there is long-standing case law that supports the proposition that procreation is a basic liberty. In 1942, in Skinner v. Oklahoma, the court discussed a law permitting sterilization of habitual criminals...
There is a large gap, to my mind, between denying states the rights to involuntarily sterilize people and denying them the right to limit or ban procreation by gay people where sterilization, per se, is not involved.

[BrainGlutton]

Of course they should be allowed to spawn; otherwise they'll replenish their ranks by recruiting small boys, like they always do. Lesser evil, y'know? ;)

[RickJay]

So if I were a judge today, sitting in federal district court, what would I do?No. As I already said: "I asked about YOUR view of the Constitution, not prior caselaw." Ignore prior caselaw and tell me YOUR view.
Your question's nonsensical. You can't interpret the Constitution without reference to caselaw. You're asking a question that cannot be logically answered.

[pravnik]

No. As I already said: "I asked about YOUR view of the Constitution, not prior caselaw." Ignore prior caselaw and tell me YOUR view.
Your question's nonsensical. You can't interpret the Constitution without reference to caselaw. You're asking a question that cannot be logically answered.It's not nonsensical at all; John Marshall managed to interpret the Constitution without significant prior case law to guide him for three decades. Hamlet is simply asking Bricker what he believes to be the correct interpretation of the law without reference to stare decisis, which is what a federal district judge would be bound by.

[Rhythmdvl]

No. As I already said: "I asked about YOUR view of the Constitution, not prior caselaw." Ignore prior caselaw and tell me YOUR view.
Your question's nonsensical. You can't interpret the Constitution without reference to caselaw. You're asking a question that cannot be logically answered.

It's far from nonsensical.

There is a theory of Constitutional interpretation that is as threadbare as the Emperor's new clothes: Textualism.

Ardent textualists are fond of decrying "new" rights of privacy and other rights derived from Constitutional principles as being illegitimate because they lack textual foundation. Bricker is one of the more vocal and reflexive proponents of textual interpretations being correct, while all others are pure fancy and wrongly decided.

That they can do this while conceding the pragmatic reality caselaw is not at issue. However, relying on it for their own arguments for what should/should not be Constitutional severely undercuts their arguments that textualism is a solid/complete theory, and severely undercuts their arguments against finding other penumbratic rights within the Constitution.

[Whack-a-Mole]

No. As I already said: "I asked about YOUR view of the Constitution, not prior caselaw." Ignore prior caselaw and tell me YOUR view.
Your question's nonsensical. You can't interpret the Constitution without reference to caselaw. You're asking a question that cannot be logically answered.

Why?

What if you were a judge with the hypothetical case before you on July 10, 1868 (the day after the 14th amendment was adopted)?

There always has to be a first case for the rest to cite as precedent. As such one could reasonably ask how someone else would decide absent precedent.

[Hamlet]

Your question's nonsensical. You can't interpret the Constitution without reference to caselaw. You're asking a question that cannot be logically answered.Nevermind.

[Bricker]

It's true that the text of the Constitution is silent on the precise issue. But there is long-standing case law that supports the proposition that procreation is a basic liberty. In 1942, in Skinner v. Oklahoma, the court discussed a law permitting sterilization of habitual criminals...
There is a large gap, to my mind, between denying states the rights to involuntarily sterilize people and denying them the right to limit or ban procreation by gay people where sterilization, per se, is not involved.

Of course.

If I had to tackle this question as a federal judge in 1869, I'd need to know more of how the law sought to accomplish this "ban."

[Bricker]

Your question's nonsensical. You can't interpret the Constitution without reference to caselaw. You're asking a question that cannot be logically answered.

It's far from nonsensical.

There is a theory of Constitutional interpretation that is as threadbare as the Emperor's new clothes: Textualism.

Ardent textualists are fond of decrying "new" rights of privacy and other rights derived from Constitutional principles as being illegitimate because they lack textual foundation. Bricker is one of the more vocal and reflexive proponents of textual interpretations being correct, while all others are pure fancy and wrongly decided.

That they can do this while conceding the pragmatic reality caselaw is not at issue. However, relying on it for their own arguments for what should/should not be Constitutional severely undercuts their arguments that textualism is a solid/complete theory, and severely undercuts their arguments against finding other penumbratic rights within the Constitution.

Absurd.

I'm perfectly prepared to address what was Constitutional or not on January 1, 1869. Give me the text of the law in question.

[Bricker]

Your question's nonsensical. You can't interpret the Constitution without reference to caselaw. You're asking a question that cannot be logically answered.

Why?

What if you were a judge with the hypothetical case before you on July 10, 1868 (the day after the 14th amendment was adopted)?

There always has to be a first case for the rest to cite as precedent. As such one could reasonably ask how someone else would decide absent precedent.

Of course. But to answer this, it's no longer enough to simply say that the forbids gay people from "spawning." What does that mean, specifically? In the very first response in this thread, I asked if judo would be used to stop them. So you tell me what the law says, I'll tell you if it's Constitutional on January 1, 1869.

[Annie-Xmas]

Whoa, people, I have made many, many references to my sister the lesbian, her partner and their family. I know that they are better parents than our parents ever were. I am in no way against gay parenting.


Why do you always, always, always refer to you sister as your sisterthelesbian? Even in contexts where it is clear (such as when discussing her life with her partner) that she is a lesbian, so the addendum is not needed? You have done it twice already just in this thread.

It's sort of makes you look like she's just a token for you, just so you know. It's a little gross.

That's a family thing: We always refer to our relatives as the _______, the ___________. I'm"my ________, the theatre freak." I don't know who started it, but it's a family mindset.

When my sister the lesbian visited my office, we were in the break room and she was catching me up on all the relatives. A co-worker walked by and then walked back and was standing there just listening. I finally said "Yes?" and he asked "Does anyone in your family use their names?"

My sister also uses he word "spawn" to mean "gay reproduction."

[Whack-a-Mole]

Of course. But to answer this, it's no longer enough to simply say that the forbids gay people from "spawning." What does that mean, specifically? In the very first response in this thread, I asked if judo would be used to stop them. So you tell me what the law says, I'll tell you if it's Constitutional on January 1, 1869.

I am not going to pen a law in proper legalese for this thread but I presume the law would either criminalize gay people who spawn or, more likely, have the state take away the spawn of gay couples.

You are right there is no reasonable way to actually stop a gay man providing his semen to a woman for her to conceive.

Criminal sanctions would seem too draconian.

So, I suspect the law would actually be one that forbids a gay couple from parenting. Basically a child could not be raised in a household where the couple was the same sex.

Child is put up for adoption or sent to an orphanage.

Under such a law, presumably, no (or very few) homosexual couples would bother having children.

[Hamlet]

Good Ol' Bricker.

Good Ol' rules in the Great Debates forum.

How about this? The State of Pedantic in the USA (subject to the US Constitution) has an entire system set up to deal with adoptions, foster children, and parental rights/responsibilities that everyone agrees meet the requirements of "procedural due process". In that vast repository of statutory law, the legislature includes this phrase: "“[n]o person otherwise eligible to adopt, become a foster parent, or enjoy parental rights under this statute may adopt, become a foster parent, or enjoy parental rights if that person is found by a preponderence of the evidence to be a homosexual”.

Good enough? Or must I provide you with the entire code of Pedantic? Also, I think we can set aside any federalism/incorporation issues for the purposes of this hypothetical.

[Bricker]

Of course. But to answer this, it's no longer enough to simply say that the forbids gay people from "spawning." What does that mean, specifically? In the very first response in this thread, I asked if judo would be used to stop them. So you tell me what the law says, I'll tell you if it's Constitutional on January 1, 1869.

I am not going to pen a law in proper legalese for this thread but I presume the law would either criminalize gay people who spawn or, more likely, have the state take away the spawn of gay couples.

You are right there is no reasonable way to actually stop a gay man providing his semen to a woman for her to conceive.

Criminal sanctions would seem too draconian.

So, I suspect the law would actually be one that forbids a gay couple from parenting. Basically a child could not be raised in a household where the couple was the same sex.

Child is put up for adoption or sent to an orphanage.

Under such a law, presumably, no (or very few) homosexual couples would bother having children.

Good Ol' Bricker.

Good Ol' rules in the Great Debates forum.

How about this? The State of Pedantic in the USA (subject to the US Constitution) has an entire system set up to deal with adoptions, foster children, and parental rights/responsibilities that everyone agrees meet the requirements of "procedural due process". In that vast repository of statutory law, the legislature includes this phrase: "“[n]o person otherwise eligible to adopt, become a foster parent, or enjoy parental rights under this statute may adopt, become a foster parent, or enjoy parental rights if that person is found by a preponderence of the evidence to be a homosexual”.

Good enough? Or must I provide you with the entire code of Pedantic? Also, I think we can set aside any federalism/incorporation issues for the purposes of this hypothetical.

Let's take Hamlet's example.

And let's agree that we're in 1869, with the ink still wet on the brand-new Fourteenth Amendment.

And let's say we must consider three cases: an aggrieved same-sex couple that wishes to adopt, and his been denied by the Pedantic State Adoption Agency; a homosexual person who wishes to become a foster parent but has been denied by the Pedantic State Child Welfare Agency; and a lesbian couple raising a child that is the biological issue of one of them, where the child has been taken away by the Pedantic State Child Welfare Agency.

Does that suit everyone?

[Hamlet]

Let's take Hamlet's example.

And let's agree that we're in 1869, with the ink still wet on the brand-new Fourteenth Amendment.

And let's say we must consider three cases: an aggrieved same-sex couple that wishes to adopt, and his been denied by the Pedantic State Adoption Agency; a homosexual person who wishes to become a foster parent but has been denied by the Pedantic State Child Welfare Agency; and a lesbian couple raising a child that is the biological issue of one of them, where the child has been taken away by the Pedantic State Child Welfare Agency.

Does that suit everyone?Sounds good. But please use the current state of research/information about homosexual parents rather than confining yourself to the state of belief in the 1860's.

[Rhythmdvl]

Since the OP is asking about spawning, I would add:
A married male and female couple visits their OBGYN. The doctor informs the couple that the wife is pregnant with the male's child. The doctor also informs the couple that because the doctor has knowledge that one of them actively and regularly engages in homosexual acts, the doctor must report these proclivities to the relevant authorities and that upon delivery the infant will be removed from the delivery room and shunted off to an orphanarium or other suitable foster care facility. The couple does not intend to divorce. The couple does not deny the homosexual acts took place in the past or will take place in the future. The couple is in an otherwise stable relationship and there are no other faults sufficient to remove the child.

[panache45]

Gay people are allowed to spoon, so why not spawn? It's only a difference of two letters.

[Enderw24]

Gay people are allowed to spoon, so why not spawn? It's only a difference of two letters.

You know what else is only a difference of two letters? Gays and HITLER.

[Bricker]

Does that suit everyone?Sounds good. But please use the current state of research/information about homosexual parents rather than confining yourself to the state of belief in the 1860's.[/QUOTE]

You're asking me to apply the law of 1859 to the facts as they're known today. I'm happy to do that, but I want the distinction made clear.

Our federal constitution creates a federal government that is supreme in its bailiwick, but has only limited, enumerated powers. The plenary power in government belongs to each state. The Constitution is the supreme law of the land.

The Fourteenth Amendment offers sweeping language with respect to constraints against the plenary power of the state. In particular, it provides that states may not abridge the privileges or immunities of citizens; deprive any person of life, liberty, or property, without due process of law; or deny to any person within its jurisdiction the equal protection of the laws.

The language of the Constitution must control our results, but that language cannot be interpreted to lead to an absurd conclusion, or to effect a nullity. The language of the amendment, read as it is, essentially strips away the distinct sovereignty of the states and places in the purview of the federal government every law. This was not the understanding of those who ratified it; it is an absurd result.

Read literally, no state could make any law affecting any two classes of persons unequally, lest one class complain that they were being denied the equal protection of the law. A child forbidden to vote because of age is clearly "a person" within the state's jurisdiction. No one imagines that the Fourteenth Amendment is intended to remove the state's ability to curtail that child's ability to vote. Yet by the plain words, a statute forbidding the child to vote treats that child unequally, and denies him the "equal protection" of the law.

Yet at the same time, the amendment cannot be a nullity; it must offer some significant protections that did not, heretofore, exist.

Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage.

Hence the fifteenth amendment, which declares that 'the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.' The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.

We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, [83 U.S. 36, 72] mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.

We do not say that no one else but the engro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it.

Accordingly, the strongest protections from this amendment apply when a racial classification is created by the state. This type of classification does not, however, apply in the instant case.

(to be continued)

Note: the italicized section is lifted from the Slaughter-house Cases, not as "precedent," but as adopted "original" reasoning. I provide this citation to avoid plaigarizing.

[Bricker]

Our example of the child voter is instructive. The observer instinctively knows that such a ban is permissible, even though it flouts the plain guarantee of "equal protection." We may not, however, concede to the judiciary the power to "instinctively" weigh prohibitions and decide their constitutionality thereby. In our system of government, we expect that substantive governmental policy is created and promulgated by the electorate, acting through its elected representatives.

Why then is it permissible to ban the child voter? Because the government is advancing a legitimate interest of government, supporting a legitimate goal of government, and has done so by offering up a regulation that is rationally related to that goal.

The holding today, then, in weighing each of the cases here must proceed through that same sieve: is the government (a) advancing a legitimate interest; (b) supporting a legitimate goal; and (b) offering up a regulation that is rationally related to that goal?

This analysis will give effect to the equal protection clause, not absurdly aggrandizing it to the point it subsumes all state sovereignty nor nullifying it to meaninglessness.


(to be continued)

[Bricker]

Because we give great deference to laws passed by our elected representatives, and because those laws enjoy the strong presumption of constitutionality, the legitimate government interest is likewise presumed to exist, and this presumption is rebutted only if the reviewing court cannot conceive of any possible qualifying interest and goal.

The process described herein is not of constitutional dimension, but rather of the inherent rule-making power of the federal courts (absent Congressional change).

Having established the process, we now turn to the facts at hand.

It is well-established that opposite sex couples do not enjoy any particular measurable advantage over same-sex couples for the purpose of providing a stable household. The state has a legitimate interest in encouraging procreation, of course, but that interest is not implicated here, where the procreation has already occurred and the only question left is the placement of the child. The state has not advanced**, and I am not aware, of any legitimate interest or goal that is related to limiting only opposite-sex couples to adopt, foster, or care for a child.

Therefore, each regulation identified by Pedantic fails to satisfy the Equal Protection Clause of the Fourteenth Amendment.


** If someone wants to advance a goal I haven't thought of, of course, that might change this sentence and the result.

[Rhythmdvl]

Rebuttal notes:

1) The state has a legitimate interest in prohibiting the dissemination of obscenity. Obscenity is defined by local customs and mores. The state, through its electoral process, has deemed homosexual conduct to be per se obscene. The state has also determined that allowing a known homosexual couple to raise a child is an affront to traditional concepts of marriage and further promotes homosexuality—it is also per se obscene.

2) The plain text of 14th Amendment “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” contains no provision for slicing up the population into protected classes.

The child voting example does not hold. First, the Federal Constitution does not control a states’ internal voting rules. If the Federal law grants suffrage to a certain group, than state laws to the contrary would be in violation of the Constitution. However, if Federal law restricts voting to certain groups, and state laws do not go further, there is no violation of the 14th Amendment.

3) The Federal Constitution contains no reference to the right to raise a child. The law in question is a state law. Though the law may violate the state’s constitution, there are no Federal Constitutional grounds for attacking the law.

[tim314]

Bricker, what if it was argued (as I imagine it would be at the time) that homosexual behavior is immoral*, and the state has a legitimate interest in preventing children from being exposed to such immorality.

I imagine that Justice Scalia feels that "moral disapprobation of homosexual conduct" can be the basis for a legitimate state interest, at least based on his dissent in Lawrence.

* To be clear, this is not my belief.

[kopek]

If anything, maybe we should stop straight people from spawning.


If I could figure out how to give a standing ovation here, I would.


At OutRageous Bingo, the caller sometimes asks all us straight people to stand up. He will then either ask us how it feels to be the minority (all in good fun) or thank us for making so many gay and lesbian children. I've told him for years that he and his partner should take on some of the job for us but they really aren't into the idea of parenting. Of course, neither am I so --------- I really can't blame them.

[Hamlet]

It is well-established that opposite sex couples do not enjoy any particular measurable advantage over same-sex couples for the purpose of providing a stable household. The state has a legitimate interest in encouraging procreation, of course, but that interest is not implicated here, where the procreation has already occurred and the only question left is the placement of the child. The state has not advanced**, and I am not aware, of any legitimate interest or goal that is related to limiting only opposite-sex couples to adopt, foster, or care for a child.See now, that wasn't so hard.

While I agree with your conclusion, that the legislation doesn't even meet the rational basis test, I find it an intriguing answer from someone like you who has expressed great displeasure for any legislation failing the rational basis test. After hearing your belief that laws prohibiting sodomy and laws prohibiting same sex marriage all pass rational basis test, I'm a bit suprised (happily though) that you don't put any stock in the "tradition", "children need role models of both sexes", the loss of Roman Catholic adoptions, "biological impossibility", "gay lifestyle", "moral disapprobation of homosexual conduct", "kids will be shunned", and the rest of the tripe put forth as reasons for the ban, though.

By the by, I'm assuming your ruling would be different without the studies into same sex parenting that have been done in the last decade, correct? When would the statute have been become unconstitutional, to you? Was it the most recent study came out about same sex parents? Before then? Were they important to your rejection of the reasons put forth for the ban?

[Hamlet]

For reference:

"Cognizant ofthe narrow parameters of our review, we now analyze the challenged Florida law. Florida contends that the statute is only one aspect of its broader adoption policy, which is designed to create adoptive homes that resemble the nuclear family as closely as possible. Florida argues that the statute is rationally related to Florida's interest in furthering the best interests of adopted children by placing them in families with married mothers and fathers. Such homes, Florida asserts, provide the stability that marriage affords and the presence of both male and female authority figures, which it considers critical to optimal childhood development and socialization. In particular, Florida emphasizes a vital role that dual-gender parenting plays in shaping sexual and gender identity and in providing heterosexual role modeling. Florida argues that disallowing adoption into homosexual households, which are necessarily motherless or fatherless and lack the stability that comes with marriage, is a rational means of furthering Florida's interest in promoting adoption by marital families.

Florida clearly has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization ofits adopted children. It is chiefly from parental figures that children learn about the world and their place in it, and the formative influence of parents ''Florida also asserts that the statute is eationally related to its interest in promoting public morality both in the context of child rearing and in the context of determining which types of households should be accorded legal recognition as families. Appellants respond that public morality cannot serve as a legitimate state interest. Because of our conclusion that Florida's interest in promoting married-couple adoption provides a rational basis, it is unnecessary for us to resolve the question. We do note, however, the Supreme Court's conclusion that there is not only a legitimate interest, but "a substantial government interest in protecting order and morality, and its observation that "[un] democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people."

We also note that our own recent precedent has unequivocally affirmed the furtherance of public morality as a legitimate state interest. It extends well beyond the years spent under their roof, shaping their children's psychology, character, and personality for years to come. In time, children grow up to become full members of society, which they in turn influence, whether for good or ill. The adage that "the hand that rocks the cradle rules the world" hardly overstates the ripple effect that parents have on the public good by virtue of their role in raising their children. It is hard to conceive an interest more legitimate and more paramount for the state than promoting an optimal social structure for educating, socializing, and preparing its future citizens to become productive participants in civil society--particularlywhen those future citizens are displaced children for whom the state is standing j~loco parentis.

More importantly for present purposes, the state has a legitimate interest in encouraging this optimal family structure by seeking to place adoptive children in homes that have both a mother and father. Florida argues that its preference for adoptive marital families is based on the premise that the marital family structure is more stable than other household arrangements and that children benefit from the presence ofboth a father and mother in the home. Given that appellants have offered no competent evidence to the contrary, we find this premise to be one of those "unprovable assumptions" that nevertheless can provide a legitimate basis for legislative action. Although social theorists from Plato to Simone de Beauvoir have proposed alternative child-rearing arrangements, none has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model. Against this "sum of experience," it is rational for Florida to conclude that it is in the best interests of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored by both a father and a mother." [citations removed throughout]

From Lofton v. Kearney, 93 F.Supp.2d 1343

[Bricker]

See now, that wasn't so hard.

It was three posts worth of typing.



While I agree with your conclusion, that the legislation doesn't even meet the rational basis test, I find it an intriguing answer from someone like you who has expressed great displeasure for any legislation failing the rational basis test. After hearing your belief that laws prohibiting sodomy and laws prohibiting same sex marriage all pass rational basis test, I'm a bit suprised (happily though) that you don't put any stock in the "tradition",

Tradition alone cannot serve as a rational basis, else the state could refuse any change at all.


"children need role models of both sexes",

Demolished by research. I could accept that in the absence of evidence, but not when it's been countered by uncontraverted research.

the loss of Roman Catholic adoptions,

Didn't think of this one, but I believe that's an impermissible criteria because of the First Amendment.


"biological impossibility",

No biological impossbility: the kids exist. Question was who can raise them, a task clearly not biologically impossible for same-sex couples.


"gay lifestyle",

Killed by research.

"moral disapprobation of homosexual conduct",

This is the closest call. But as with "tradition," if the state is permitted to define its own moral code, then what would be off-limits for that code? It's an open-ended claim.

I do think a less-onerous policy that provided for kids to not be exposed to a succession of short-term romantic or sexual partners of the foster parent would pass muster, but that criteria would be applicable against straigh foster parents as well.

"kids will be shunned",

Killed by research.

By the by, I'm assuming your ruling would be different without the studies into same sex parenting that have been done in the last decade, correct? When would the statute have been become unconstitutional, to you? Was it the most recent study came out about same sex parents? Before then? Were they important to your rejection of the reasons put forth for the ban?

Critical. Absent factual contradictions, I'm obligated to accept the state's claims. No research, no contradictions.

[Fear Itself]

What are thoughts on this?I think the next time a gay person asks you if they can make a baby, you should say "no".

[suranyi]

How should we stop them? Judo?

A flippant response, but seriously: I can't imagine much more odious infringement on liberty than telling a person they're not allowed to procreate.

Yes indeed. The same freedom that allows NPH to have a child also allows the Duggards to have as many children as they want. Its fundamental.

[Bryan Ekers]

Seems to me if you want to keep gays from reproducing, you should encourage social acceptance of homosexuality, so gay teens can casually adopt that lifestyle instead of spending years or decades trying to conform and getting into hetero breeding relationships.

Wait....gay people SPAWN?? I thought they reproduced by parthenogenesis...

And it used to be "parsenogenesis" until they gayed it all up!

[Bricker]

And it used to be "parsenogenesis" until they gayed it all up!

THAT is funny.

[villa]

Good Ol' Bricker.

Good Ol' rules in the Great Debates forum.

How about this? The State of Pedantic in the USA (subject to the US Constitution) has an entire system set up to deal with adoptions, foster children, and parental rights/responsibilities that everyone agrees meet the requirements of "procedural due process". In that vast repository of statutory law, the legislature includes this phrase: "“[n]o person otherwise eligible to adopt, become a foster parent, or enjoy parental rights under this statute may adopt, become a foster parent, or enjoy parental rights if that person is found by a preponderence of the evidence to be a homosexual”.

Good enough? Or must I provide you with the entire code of Pedantic? Also, I think we can set aside any federalism/incorporation issues for the purposes of this hypothetical.

The problem I see with such a law indicates the problem with much anti-gay legislation - it is almost impossible to define what homosexual is for legal purposes. You can have laws (like Colorado) preventing homosexuality being afforded legal protection, and you can have laws, such as those struck by Lawrence with prohibit actions (note I am not saying such laws are constitutional, but that they can be written) but it is much harder to enact a law that isn't vague which says homosexuals cannot do X or Y.

[Hamlet]

[Tradition alone cannot serve as a rational basis, else the state could refuse any change at all.Sodomy?

This is the closest call. But as with "tradition," if the state is permitted to define its own moral code, then what would be off-limits for that code? It's an open-ended claim. Sodomy?

Critical. Absent factual contradictions, I'm obligated to accept the state's claims. No research, no contradictions.In many cases in these "homosexuals can't adopt" hearings, doctors testify on behalf of the State that there are studies showing that the optimal parenting is one father/one mother. You're willing to go so far as to reject that testimony (rightly so, I agree), but not on sodomy? And you still allow for the massive amount of deference to the legislature to allow the "procreation" argument to win the day for same sex marriage. While I'm thrilled that we have found something we can agree on, I'm hoping it's just a first step into your acceptance that sodomy laws and laws forbidding same sex marriage likewise cannot meet the rational basis test.

[Evil Captor]

Gay couple's can't spawn, it's a biological law. Human laws are beside the point. They can adopt other people's children or mate outside their gender preferences, and I see no problem with either so long as they are as sane as the average heterosexual couple, not exactly a high bar to jump.

[Bricker]

Sodomy?

Sodomy?


Geeze, you don't have to ask me for sodomy TWICE.

Everything OK at home?

:D

Critical. Absent factual contradictions, I'm obligated to accept the state's claims. No research, no contradictions.In many cases in these "homosexuals can't adopt" hearings, doctors testify on behalf of the State that there are studies showing that the optimal parenting is one father/one mother. You're willing to go so far as to reject that testimony (rightly so, I agree), but not on sodomy?

Testimony that says "There are studies?" Let's see the studies. I'd absolutely change my mind if there's a credible study that says one-man-one-woman is demonstrably better than other options. Where's that study?

As to sodomy... I'd have to think about it, but off the cuff (I was going to say 'off the top of my head,' but when the subject is sodomy dumb pun opportunities should be avoided if possible) I'd say that I'm now having trouble identifying a state interest.

[tomndebb]

Hamlet and Rhythmdvl, if you need to continue your hijack, open a separate thread. It is no longer acceptable in this thread.

Further, if I encounter either of you badgering another poster, demanding that that poster express a personal belief when they have not chosen to offer one, you will be Warned for harrassment.

[ /Moderating ]

[Hamlet]

Geeze, you don't have to ask me for sodomy TWICE.So how you doin'?

Testimony that says "There are studies?" Let's see the studies. I'd absolutely change my mind if there's a credible study that says one-man-one-woman is demonstrably better than other options. Where's that study?In the case I quoted earlier, the Court stated: "[T]he question of the effects of homosexual parenting on childhood development is one on which even experts of good faith reasonably disagree. Given this state of affairs, it is not irrational for the Florida legislature to credit one side of the debate over the other. Nor is it irrational for the legislature to proceed with deliberate caution before placing adoptive children in an alternative, but unproven, family structure that has not yet been conclusively demonstrated to be equivalent to the marital family structure that has established a proven track record spanning centuries."

If you'd like a quick laugh, one of the "experts" who testified in these cases is none other than George Reker, he of "rentboy" and "long stroke" fame. You can read about some of the other "experts" (like Lynn Wardle) testimony in this brief filed by the "Liberty Counsel" (http://lc.org/media/9980/attachments/brief_amicus_casename_fl_ssadopt.pdf)(warning .pdf).

While I think it's clear that the vast majority of social scientists have agreed with your and mine conclusions (and many courts), I think you are seriously underestimating the right's ability to find "experts" to support their preconceived notions, even in court testimony. While same sex marriage is certainly getting a lot of press, there are parts of this great country that are still wanting to stop homosexuals from raising children that need to be fought.

As to sodomy... I'd have to think about it, but off the cuff (I was going to say 'off the top of my head,' but when the subject is sodomy dumb pun opportunities should be avoided if possible) I'd say that I'm now having trouble identifying a state interest.Good to hear.

[Hamlet]

Hamlet and Rhythmdvl, if you need to continue your hijack, open a separate thread. It is no longer acceptable in this thread.

Further, if I encounter either of you badgering another poster, demanding that that poster express a personal belief when they have not chosen to offer one, you will be Warned for harrassment.

[ /Moderating ]Suddenly whether or not courts allow or should allow gay people to be parents is a hijack of a thread titled "should gay people be allowed to spawn"?

Really?

[panache45]

Gay couple's can't spawn, it's a biological law.

Unless, of course, one is a gay man and the other is a lesbian. :p

[DanBlather]

We have had a perfectly adequate solution for this for centuries until liberals fucked it all up. Gay people stay closeted and have children with spouses that are unaware of their proclivities and then go to public bathrooms to have anonymous sex with strangers. Then when they are about to be outed they commit suicide and the families pretend like it never happened. Not that everyone does this, mind you. Some become Priests because they can't deal with their latent homosexual desires and then instill the guilt in others so that they'll remain in the closet and we can all pretend that such nastiness does not exist.

[SciFiSam]

I like that there's a gay parenting thread in Great Debates which is solely piss-taking. We've come just far enough for this. :D

I'm not sure why there's any censure of the obvious piss-takers. They're playing underling demons' advocates!

[Whack-a-Mole]

While I think it's clear that the vast majority of social scientists have agreed with your and mine conclusions (and many courts), I think you are seriously underestimating the right's ability to find "experts" to support their preconceived notions, even in court testimony. While same sex marriage is certainly getting a lot of press, there are parts of this great country that are still wanting to stop homosexuals from raising children that need to be fought.


How are we "underestimating" the right on this?

Seems the court you mentioned uncritically accepted the evidence of the "experts" when rendering its decision.

Perhaps because of that the folks in the recent Perry case were prepared. This was a big case, as huge as we have seen in the US on this subject, and the best the defense managed were two expert witnesses. Those witnesses were then shredded on the stand and to some extent even backed up the plaintiff's case. Judge Walker's decision noted the utter lack of expertise of the experts to the point of making it laughable.

That is the best the conservative right can come up with. Huge case, lots of money backing them, a country of 350 million people and they could only find two experts who weren't even experts on this?

Color me unimpressed.

[Sleeps With Butterflies]

Neil Patrick Harris and his partner David Bertka are expecting twins via a surogate mother. My sister the lesbian's parnter had two children via AID. Mrs. Hal Briston was a gestational surrogate for a gay couple.

What are thoughts on this?

Nevermind

[Nametag]

To be honest, I find the idea of gays spawning repulsive. It goes against nature.

The thought of gay people thrashing in shallow water, laying their eggs and spilling sperm all over the place, positively turns my stomach. (This prospect is equally appalling with straight people. Spawning is best left to fish.)

[BigT]

:( Nametag took my joke.

[Peremensoe]

:( Nametag took my joke.

See Gorsnak, #34.

[Gyrate]

I certainly strenuously object to these guys (http://www.dailymail.co.uk/news/article-1291890/Gay-fathers-Barrie-Tony-Drewitt-Barlow-celebrate-arrival-twins-triple-christening-ceremony.html) spawning. I mean, I don't care that they're gay but naming your kids Aspen and Saffron is beyond the pale.

[BobLibDem]

I don't care if they spawn. Just let me know where so I don't swim there.

[Gyrate]

Spawning is best left to fish.To be fair, gay men may not swim upstream like salmon but they still sometimes get swallowed by bears.