I’m sorry to hear that.
EDIT: I’m a dude who voluntarily and exclusively enters into romantic relationships with other dudes.
But one person can’t get married; it takes two. 
To play devil’s advocate here: An opponent of gay marriage might say that what marriage fundamentally is, is a bond between a man and a woman, and that all people do have a right to this, so no one’s rights are being denied them; everyone’s being treated equally. A gay person might argue, “But I should have the right to marry the person of my choice, as straight people do!” But really, everyone has restrictions on whom they can marry; no one has the right to marry someone who’s already married to somebody else, or who doesn’t consent to marry them, or who’s under age, or who died 200 years ago.
I am not giving an argument against same-sex marriage; I’m only saying I don’t think there’s a sufficient argument for same-sex marriage on the basis of “rights” alone.
I don’t see why Kim & I should have more rights than my (now deceased) cousin and his long-time, monogamous, live-in male lover, who had a hard time getting to see my cousin on his deathbed, and lost the house they lived in, because he and my cousin had the same sort of genitalia.
I don’t see why either. I am a fierce opponent of the sentiment behind prop 8. But I think the Ninth Amendment is kind of murky regarding this. None of the rights “retained by the people” include marriage. This thread could just as well be about how we define “right” as we define “marriage.”
But since there are certain things that people who are married can do that people in a civil union can’t do I’d hope the Supreme Court would rule against prop 8. I’m thinking of things like filing a joint tax return. But maybe that would just make the IRS change its policies.
How do you know? The rights aren’t enumerated so the only thing you can say with certainty is that the 9th doesn’t apply to the specific rights already addressed in the Constitution. The whole purpose of the thread is to “decide” whether or not, marriage is a right. If it is, then there’s a strong argument to be made that the 9th does apply.
I don’t know. You need to decide on what is a “right” before you can decide if marriage is a right. That’s why I think it’s murky. The motivation behind prop 8 wasn’t constitutional. It was religious. It’s pointless, in my opinion, but they somehow got a enough people to vote for it. I would hope that because marriage affords more than just social status, the Supreme Court will eventually deem prop 8 unconstitutional.
But I’m not a lawyer, so YMMV.
I think there’s sufficient context that a right could be defined as “something the government can’t restrict or eliminate without a compelling public interest”.
FWIW, we completely agree on this. I am ashamed of my state for voting for something even worse than Proposition 8.
I think that the UN declaration makes a strong case that marriage is a right; it doesn’t help the issue of defining what marriage is however. One suspects that if the UN had defined its terms they would not have included same sex couples within the definition. (Not a comment on right or wrong, a mere recognition of the belief systems across the UN membership which includes many fundamentalist worldviews - Islamic and otherwise - and the Chinese and Russian worldviews which are not any more accepting even if not religious in justification.)
I’m not sure about this. Certainly, they would have left polygamy in, since there are UN members that think that’s perfectly fine. If you have a marriage between one man and 30 women, isn’t that same sex marriage between the women, with one man thrown in? In any case, they definitely could not have said “One man and one woman” – it would have been “One man and multiple women” (which I imagine is the only kind of polygamy around for the countries that currently practice it), or “Some number of men and women” – it would have been tricky to specifically disallow SSM, while allowing various forms of polygamy.
Anyway, other UN members are perfectly fine with SSM (UK, maybe? Sweden? Can’t recall.)
My guess is that they left it open on purpose and were focusing on the consensual portion.
I think SSM is allowed in Japan.
Somewhat off topic but, can a man and a woman enter into a civil union?
In many states they can.
since marriage requires at least 2 adults, no individual has the right to be married*. But the right to build a commited relationship with another I believe should be open to everybody. IIRC the UN stated that the family was the fundamental unit of society, I don’t see how you can allow childless unions and polygamy, but not SSM, I really don’t.
*I wish I could find the Bim that’s been denying me all these years and give her a good talking to. I keed.
I don’t think this holds up. If two people, willing and unencumbered by any other obligation can’t get married soley because they are the same gender then their marriage rights are being limited in ways that no one elses are. Blacks and whites used to have the right to marry anyone except each other once too.
This is a common point, and one I’ve put a lot of thought into.
It’s a logically comelling argument, but I think it begins to fray if one asks he question as to which policy practically maximizes equality. If I give you as equally possible alternatives two policy states - onbe in which marriage is allowed only between a man and a woman and one in which marriage is allowed between same sex couples as well as straight - it’s difficult to say the first state maximizes equal treatment before the law.
Consider the case of Loving v. Virginia. **(In which the Supreme Court, in answer to the OP, specifically said marriage was a right.) ** Logically, one could argue that the Commonwealth of Virginia was treating all people equally, in that it permitted everyone the right to marry someone of the same race. (Of course, the statute’s definition of race was a bit broad, but let’s ignore that for the moment.) The finding of the USSC (unanimously) was that this was horseshit, and that the law was obviously racially biased and intended to limit a “basic civil right” (their words) on the basis of race.
I think the same logic applies to gay marriage. You can SAY that anti-gay-marriage policies don’t discriminate, but practically speaking that’s no different from anti-miscengation laws; even though all persons are technically subject to the same law the effect of the law is profoundly, and deliberately, different on different classes of citizen.
Of course, you might point out that we limit marriage in other ways. We don’t allow people to marry young children or dead people or people who are already married. But in those cases there’s a “legitimate overriding purpose” (against, quoting from Lovin v. Virginia) for state interference - in the case of children protection from criminal exploitation, and in the latter two cases because those don’t fulfill the central point of legal recognition of marriage. Prohibitions against gay marriage don’t fulfill what the USSC called a “legitimate overriding purpose”
Since my last contribution to this thread, I read the Anna Quindlen column in Newsweek in which she discussed this case. And now I’m more inclined to agree with your point of view. At the very least, recognizing same-sex marriage as a basic right seems consistent with this earlier ruling.
The logic escapes me.
Could you more fully describe what the central point of legal recognition of marriage means and why someone already married doesn’t fulfill it?
I’m guessing you meant this article. In it, she didn’t describe much about the case except for the facts. Could you point out why the basic right seems consistent with the ruling in Loving based on this article?
Hmmm… just for the sake of it, let’s look seriously at the “slippery slope” points that always get thrown up by opponents of gay marriage – hopefully without teeing off gay people.
First, I see a way to break this into two categories: (1) gay marriage, incestuous marriage, bigamous marriage, polygamous and other group marriage; (2) pedophilic marriage, bestialist marriage, marriage to inanimate objects. The difference here is that group (1) involve people capable of consenting to contracts, while group (2) involve at least one party who is legally incapable of doing so. In fact, with the pedophilia issue, that is specifically addresed – generally a teen a year or two below the age of consent may marry with the consent of parents or the court. This differs in no significant way from any other contract entered into by a minor – an adult presumed to have mature judgment and the child’s best wishes at heart must sign off on said contract. An animal or an inanimate object is clearly incapable of contracting marriage to a human in a meaningful human-marriage sense; though some animals pair-bond, and the relationship of human and pet/work animal may be wonderfully complex, it does not rise to what constitutes a human-human marital bond.
With regard to group (1), though, a more complex analysis is needed. First, bigamy. It is the essence of the typical marriage contract that it provides for exclusivity. Couples with open marriages intentionally go against the grain there – and such couples do not commit bigamy. (I should probably define terms – I’m using “bigamy” to signify one person contracting marriage with two or more others as separate unions, presumably without the knowledge of the others that they are not the sole spouse of their spouse. Polygamy to me signifies group marriage in which all parties are aware and at least do not withhold consent. Mormon-splinter patriarchal polygyny is at one extreme; commune group marriages at the other, but the essence is a single household or family in which more than two persons are united in the same marital bond.)
Now bigamy in the sense I use it is fraudulent int two ways: it’s a contract not entered into in good faith on one part, and it’s a case where exclusivity is granted separately to two different parties. By parallel, Cecil contracted with the Reader for exclusive rights to print and syndicate the SD. (That they were able to pass this with other assets to CLE is irrelevant to the issue here. But Cecil cannot now contract with the Village Voice to grant them exclusive rights to print and syndicate his column – he in fact cannot even sell any rights to it to them, because CLE owns those rights. It’s that sort of fraud that voids bigamy.
Incest is prohibited by the “ick factor” – the incest taboo. But I submit that that taboo, far from being superstition, is founded in a racial knowledge of practical genetics – “If people screw their siblings, the children tend to come out odd and be drains on the village. So we prohibit it.” Not that anthropologically the exceptions, permitting or requiring sibling unions, were accompanied by ruthles culling of the deformed, as in Egypt and Peru.
Free-consent polygamy is another issue altogether. But the major objection there is one with some sense – there is no precedent for how to handle marriage and family law for such institutions. This does not, or should not, automatically bar such unions – it simply says that such a structure needs to be erected, either by the legislature or by private contract between the parties, to make such a relationship legally effective.
Note that none of the above applies to same-sex monogamous marriage. The parties are of age to consent, are not encumbered with other marriages, are not attempting to contract with another party incapable of contracting, and are entering into a contract paralleling what is already legally recognized, viz., one m,an/one woman marriages.
Which are, in the U.S. defined as a fundamental right. The only two ways to supersede a Supreme Court judgment on a constitutional question are (a) bring a new case and convince the court to reverse itself, not likely in the Loving case; or (2) amend the Constitution. And anything that takes positive steps to remove the right to marry as a generalized right is probably going to get strong opposition.
First, I think this is a wonderful summary of the issues. I just wanted to nitpick one piece of this:
My understanding is that it is likely that the incest taboo is probably built in to our brains/instincts. I’m not sure if that what you meant by “racial knowledge”, but that term sounds like a cultural term, not a genetics term.
Steven Pinker goes into this a bit in “How the Mind Works.” Anyway, the bottom line is that it’s pretty likely that we are genetically “programmed” or inclined to avoid incest, it’s not just a cultural phenomenon. Even if there were no taboos against it, it seems unlikely that there would be slippery slope that included incest as a common result.
Anyway, I don’t mean to hijack this excellent thread. Kudos again on your phenomenal summary of the issues.