Is there anyone here against gay marriage AND civil unions?

[Huerta88]

@Diogenes the Cynic

If only…but we don’t.

No. They can enter into any number of fully enforceable contracts.

They can enter into a contract to lend money. But not if it’s at a usurioius rate of interest. They can enter into a contract to make an investment. But not if it violates the Securities Act of 1933. They can enter into a contract waiving certain rights under law. But not if the waiver is contrary to public policy. They can’t enter into a contract to have sex for money. They can’t enter into a contract to kill someone. Or rather, in each of these cases, the courts will refuse to recognize or enforce such contract. Everyone has the right to enter into a contract to loan money at up to 18% interest. No one has the right to enter into a contract to loan money at 30% intereset (Y. State MV). “How unfair! They are privileging one kind of contract over others!” But my demonstration above shows that the state always does that. There is no recognized right (and no, shouting “equal protection” won’t create one) to enter into any contract you want and have the government enforce it – and that is true even if the government enforces analogous (not identical) agreements as to parties who are situated differently than you (i.e., the 18% lender vs. the 30% lender, or the heterosexual marriage seeker vs. the “gay marriage” seeker). It’s really not difficult to follow, and dissatisfaction with the system that has evolved over half a century of common law doesn’t excuse pretending that common or constitutional law OBVIOUSLY offers you CONCLUSIVE support that it simply doesn’t.

Your problem, or one of them, is that you simply won’t admit that you’re trying to make a policy argument at all, for which you’d have to actually convince people through logic, heuristics, and reasonable appeals to shared principles.

Simpleminded insistence that you OBVIOUSLY HAVE TO BE ALLOWED, as a matter of logic and first principle, to have a contract of “homosexual marriage” enforced is no more legally reasoned or persuausive than arguing that ONLY A MORON WITH NO UNDERSTANDING OF LOGIC AND EQUAL PROTECTION could support a regime in which 18% interest loan contracts are available and enforceable and 19% contracts aren’t – since we live, quite comfortably and constitutionally, in a regime much like the latter example, and no one’s head explodes from lack of “equal protection for whatever contract I want the government to honor and enforce.”

Since you aren’t remotely equipped, as you’ve shown, to argue from first legal principles in a system such as the one we inhabit (are you from N. Korea or somewhere else with no history of democracy or common law? I’m honestly curious – this is sixth grade civics stuff in my country), drop the attempted first-priniciples, jurisprudence and constitutional arguments, and try persuading your fellow citizens (by doing something other than shouting “They’re denying me the right to enter ANY CONTRACT AND THAT’S OBVIOUSLY WRONG BECAUSE OF EQUAL PROTECTION.)”

Just a thought.

[Diogenes_the_Cynic]

Words without content, as usual.

[Bricker]

@Diogenes the Cynic

It is my position that petitioning the courts for “gay rights” is not about asking for anything new, it’s about asserting rights that already exist. It’s not about asking for new law but about striking down discriminatory law. There is no attempt to demand new rights, only an assertion that individuals cannot be deprived of rights simply because they are gay. That is a violation of equal protection and the Supreme Court already ruled that way in the Texas sodomy case.

OK. Then let’s see someone do it. Seize this right that Diogenes has assured you exists. Should be no problem at all. The deprivation of the right to marry simply because you’re gay is a violation of equal protection. The Supreme Court already ruled that way in the Texas sodomy case. Never mind that, as has been explained before, Lawrence was decided on DUE PROCESS grounds. Stick with the brilliant legal acumen of Diogenes, as amply demonstrated by his instant analysis here, and take your right to marriage. Pluck it from the tree on which it grows.

Good luck with that.

[Diogenes_the_Cynic]

I’m saying the right to marry is a right by default and that it can’t be taken away based on sexual orientation.

Due process, whatever. I’m arguing Equal protection and I’m right.

[Huerta88]

@Diogenes the Cynic

Words without content, as usual.

Insults without argument, as always.

You can’t and don’t understand the content, and of course have no counterpoint that would represent the second half of a dialectic. That doesn’t mean the content doesn’t exist.

I will say it’s a hoot being accused of “words without content” from someone with 11,000 posts, and no apparent knowledge (to judge from this post) of the topics on which he prolifically posts. How high can the signal-to-noise ratio really be over the course of churning out 11,000 posts, even allowing for the complete absence of other normal responsibilities or normal social relations?

[Huerta88]

@Diogenes the Cynic

I’m saying the right to marry is a right by default and that it can’t be taken away based on sexual orientation.

Due process, whatever. I’m arguing Equal protection and I’m right.

Y’see, it’s by “default” (that grand old Aristotelean, constitutional, and statutory source of authority). And it’s “always been there.” And he knows he’s right, and can prove it, to anyone who will admit that he’s necessarily right.

Delusions of grandeur don’t begin to enter into it.

[Huerta88]

@Diogenes the Cynic

I’m saying the right to marry is a right by default and that it can’t be taken away based on sexual orientation.

Due process, whatever. I’m arguing Equal protection and I’m right.

Then stop posting on this topic in GD, because it’s apparent you’re not “arguing” at all – you’re stating (ad nauseum) a quasi-theological truth revealed unto you (alone), that a constitutional right unknown to anyone else exists by default, and you’re taking no meaningful part in “arguing” against the cogent positions stated against you. Repetition of your revelation is not argument. There are other forums for that.

[Bricker]

@Diogenes the Cynic

I’m saying the right to marry is a right by default and that it can’t be taken away based on sexual orientation.

Due process, whatever. I’m arguing Equal protection and I’m right.

So what do you picture will happen when this is tried?

Hint: see Citizens for Equal Protection v. Attorney General, No.4:03CV3155, 2003 WL 22571708 (D. Neb. 2003). Federal district court dismissed equal-protection challenge to Nevada’s state constitution restricting marriage to one man and one woman. Or see Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (woman attempting “marriage” to another woman may be fired from job with State Attorney General). See the federal Defense of Marriage Act (federal law entitled to strong presumption of constitutionality).

[Diogenes_the_Cynic]

I think the current SCOTUS would adhere to personal prejudice rather than professional ethics and that they would find an excuse not to protect the 14th amendment.

At this point it would be like trying to overturn segregation in the 1920’s.

[Huerta88]

@Diogenes the Cynic

I think the current SCOTUS would adhere to personal prejudice rather than professional ethics and that they would find an excuse not to protect the 14th amendment.

At this point it would be like trying to overturn segregation in the 1920’s.

I’d say give it up, Bricker, but YMMV. By Diogenes “logic,” every Justice since 1789 has been animated by personal prejudice (except when they found that pre-existing right to sodomy in Lawrence, that was great, even though the members have no professional; but they were evilly-motivated morons in Bowers. And all those cases through the Warren Court in which they discovered new constitutional rights littering the landscape left, right, and center, like Jack Daniel’s bottles after a Skynyrd concert? ALL A CLEVER PLOY BY THE MORON CHEATER BIGOTS, all in preparation to give them the “excuse” not to “protect the 14th Amendment” (wait – is someone trying to repeal it?) by giving him the right to “gay marriage” that BY GOD ALEXANDER HAMILTON PROMISED HIM PERSONALLY.

He hasn’t read the Constitution – that’s now a lead-pipe cinch. If he’s read one Supreme Court opinion, and here I do include a denial of certiorari, I’d be shocked. No one could no less about the abundantly-documented history of the Court over the past 40 years, or he wouldn’t keep making self-caricaturizing references to chimerical conservative judicial activism. And he doesn’t understand how: (a) a common law system; (b) a precedent-based system; or © consitutional jurisprudence and construction does, could, or ever might function as a source of authoriative statements of “rights.”

What’s the point?

[SlyFrog]

@Huerta88

Er, SFrog, I’m hoping you’re seeing where I was going with that, i.e., not in your general direction . . . .

Yep, I got it; no explanation necessary.

[Polerius]

@Huerta88

Everyone has the right to enter into a contract to loan money at up to 18% interest. No one has the right to enter into a contract to loan money at 30% intereset (Y. State MV). “How unfair! They are privileging one kind of contract over others!”

The analogy is bad.

It is more like if they allowed heterosexuals the right to enter into a contract to loan money at up to 18% interest, but allowed homosexuals the right to enter into a contract to loan money only up to 4% interest.

I don’t care what the law says, or what precedence says, about the existence or not of a right to loan money with the same terms as other people, irrespective of their sexual preference.

This is GD, and we are not here to interpret what the law actually says. We can get lawyers to do that. GD is about debating how the law *should * be.

And, as a matter of fairness, if the above loan discrimination law were fact, it would be wrong. As is the marriage discrimination law.

[Hamlet]

Some food for thought:

The leading decision of this Court on the right to marry is Loving v. Virginia, In that case, an interracial couple who had been convicted of violating Virginia’s miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. The Court’s language on the latter point bears repeating:

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
“Marriage is one of the `basic civil rights of man,’ fundamental to our very existence and survival.”

Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, the Court characterized marriage as “the most important relation in life,”, and as “the foundation of the family and of society, without which there would be neither civilization nor progress,”. In Meyer v. Nebraska, the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, and in Skinner v. Oklahoma ex rel. Williamson, marriage was described as “fundamental to the very existence and survival of the race,”

More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process Clause. In Griswold v. Connecticut, the Court observed:

“We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy. See generally Whalen v. Roe. For example, last Term in Carey v. Population Services International, we declared:

“While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions `relating to marriage, procreation, contraception, family relationships, and child rearing and education,”

It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings.

Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place. By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. The statutory classification at issue here, however, clearly does interfere directly and substantially with the right to marry.

ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978)

Can we agree, at the least, that marriage is a fundamental right?

[Huerta88]

@Polerius

The analogy is bad.

It is more like if they allowed heterosexuals the right to enter into a contract to loan money at up to 18% interest, but allowed homosexuals the right to enter into a contract to loan money only up to 4% interest.

I don’t care what the law says, or what precedence says, about the existence or not of a right to loan money with the same terms as other people, irrespective of their sexual preference.

This is GD, and we are not here to interpret what the law actually says. We can get lawyers to do that. GD is about debating how the law *should * be.

And, as a matter of fairness, if the above loan discrimination law were fact, it would be wrong. As is the marriage discrimination law.

The analogy is, in fact, exact, and it is yours that fails to represent the situation correctly. Eye on the ball:

There are two different classes of theoretical contracts (A & B), and two groups of people (X & Y) who may want to enter into one or the other of the types of contract. “X & Y” can be "heterosexual marriage and ‘homosexual marriage’ or “18% loans and 19% loans.” “A & B” can be “practitioners of heterosexuality and practitioners of homosexuality” or “non-loansharks and loansharks.”

In my analogy, all Xs and all Ys can enter into all As. No Xs and no Ys can enter into any Bs. Thus, with respect to each class of contract, the state equally grants or denies enforcement to the contract uniformly without respect to the identity of the A or B trying to enter into it.

In your analogy, Xs are allowed to make either A or B contracts, but Ys can only make class A contracts. Quelle unfair!

However, that’s not the situation at all with “homosexual marriage” or with usury laws (which is the point of the analogy). No one, whether an actual usurer or not, can enter into a loan contract above the lawful maximum rate, and no one can contract a marriage with a person of the same sex (without regard to whether the person seeking such contract is a practicing homosexual or a rampant heterosexual scheming to obtain some financial benefit/status by “marrying” his roomates). So heterosexuals and homosexual are equally free to have the state extend some special status to their decision to contract for marriage with an adult of the opposite sex, and equally unfree to require the state to extend status to their attempt to “marry” a child or a person of the same sex or a redwood tree.

“But I don’t want to marry a person of the opposite sex – but I still want the benefits that come with it!” So you may. And you may persuade your fellow citizens to grant them to you, just as I am free to try to persuade them to give me childcare tax credits and additional personal tax exemptions as though I had a family, even though I don’t want to marry someone of the opposite sex (or anyone), or to award special status and financial benefits based on, say, my deep relationship with my Instant Messenger buddy in Thailand. But in none of these instances can it be said that it is logically necessary or constitutionally required to grant you (or me) the rights or status or enforcement of a contract of class B simply because the government recognizes my (and your) right to make an analogous but different type of contract of type A.

You’re left arguing for a policy preference that the government should create a new category of contract to which it will give recognition, or a new and different class of personal relationships that it will single out from other personal relationships for special status. Fine. Persuade your fellow citizens through the ballot box and the constitutional amendment process. I don’t know that I’ll be following along, but that doesn’t matter if you can muster the prescribed majority. If that’s the project that you’re proposing (and pardon my skepticism that that is not the route you envision to “gay marriage”) – how can I argue?

Funny, though, how no one seems actually to go about enacting their ‘obviously-correct’ policy preferences on this and similar subjects that way – nah, it’s hey presto for the courts and a whole-cloth manufacturing of “constitutional rights” that the framers certainly never envisioned, that the law’s never (till now) recognized, and that the public hasn’t approved through the democratic process. Is that how people with the courage of their convictions typically proceed?

[Bricker]

@Hamlet

Some food for thought:

ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978)

Can we agree, at the least, that marriage is a fundamental right?

That’s what current case law says, yes.

I personally agree with Rehnquist’s dissent in Zablocki, suggesting that regulations under the Equal Protection Clause require only a “rational basis test,” and under the Due Process Clause need only show that it bears a rational relation to a constitutionally permissible end.

[Bricker]

@Huerta88

Funny, though, how no one seems actually to go about enacting their ‘obviously-correct’ policy preferences on this and similar subjects that way – nah, it’s hey presto for the courts and a whole-cloth manufacturing of “constitutional rights” that the framers certainly never envisioned, that the law’s never (till now) recognized, and that the public hasn’t approved through the democratic process. Is that how people with the courage of their convictions typically proceed?

In the current environment, I would think advocates of same-sex marriage would be a bit worried about “winning” a Supreme Court victory at all. What would spur the Federal Marriage Amendment to greater success than a court ruling exemplifying precisely what the FMA proponents have been arguing was necessary all along? (And, incidentally, Congressional FMA opponents have been arguing the the FMA was unnecessary because of DOMA.) An SC ruling that recognition of same-sex marriage was required by the federal constitution would, in my view, ensure quick passage of the FMA.

And that would be a shame, because the FMA goes farther than I believe is wise. The Bricker Amendment, which I proposed some time back on these boards, would be ideal: it would simply state that nothing in the federal constitution shall be construed so as to require the recognition of same-sex marriage. That effectively takes the courts out of play, and does not force the states’ hands one way or the other. Nor does it prevent Congress from repealing the DOMA and passing a federal standard for same-sex marriage if they were so inclined.

Self-governance. The principle that we should hold most dear.

[Burro]

Pretty much everything Huerta88 said is right. The only suspect classes are race, color, religion, national origin, and ethnicity. Notice that gender isn’t even one of them—it’s easier to pass legislation that discriminates based on gender than on race. And sexual orientation has even less protection, if any, than gender. Hopefully, sexual orientation will be able to get the same level of protection as gender within ten years or so, but with Bush potentially appointing up to three new justices to the SCOTUS, the future might not be so bright. Specter has made his stance clear on abortion rights, but I don’t know where he stands on gay rights.

As for the Equality Principle, it simply requires that the government treat similarly situated people similarly. However, this could still give gays a back door to getting married. The main “rational” defense to why marriage should only be for a man and a woman is that it’s a union that can create a child, and historically, that has been good for the state. Gays should not be afforded the same benefits of marriage because their relationship can never produce children. However, the state allows infertile hetero couples and hetero couples who choose not to have children to get married, and those unions can never produce children. Drawing on Huerta88’s analogy, marriage today is like saying

1. people who can see can drive
2. people who once could see but went blind through some tragedy can drive
3. people who were born blind cannot drive
   The Equality Principle would fail for people between groups 2 and 3 since they are similarly situated, yet are treated differently. Of course, in this analogy, if someone brought this to court, the court would have to take away the right to drive from group 2. That would never happen with marriage, however; the court would have to give gays the right to marry.

I hope this made sense to people. I’m taking Con Law now, so if I get anything wrong, let me know. It wouldn’t surprise me if something like this were on the final…

[Hamlet]

@Bricker

That’s what current case law says, yes.

I personally agree with Rehnquist’s dissent in Zablocki, suggesting that regulations under the Equal Protection Clause require only a “rational basis test,” and under the Due Process Clause need only show that it bears a rational relation to a constitutionally permissible end.

From you’re response, I’ll assume you see where I’m going with this. It goes directly to the question of what level of scrutiny should bans on same sex marriage receive in the courts. You seem to feel either 1) marriage is not a fundamental right; or 2) Even if it is a fundamental right, legislation enacted that limits the right to marriage need only meet the rational basis/reasonably related standard. To be honest, I don’t follow you on point #2. A complete denial of the exercise of a fundamental right has, in most every case, been subject to a stricter scrutiny than rational basis. Why the difference in regards to same sex marriage cases?

I would submit that, since marriage is a fundamental right, any legislation on that right should be subject to a higher level of scrutiny than simply rational basis/reasonable related. I would also submit, as the Supreme Court in Massachusettes found, that EVEN IF you only apply the rational basis/reasonably related level of scrutiny, there is no valid, acceptable reason for denying same sex partners the right to marry.

I have a huge problem with courts saying that marriage is a fundamental right, but that same sex marriage is not. It would be akin to re-arguing Loving on the basis that marriage between white people is a fundamental right, but between a black and a white is not. That kind of logic, to me at least, is specious at best.

I think, based on Loving and Zablocki, there is something to be said for the argument that bans on same sex marriage violate the constitution.

On preview:

@Bricker

The Bricker Amendment, which I proposed some time back on these boards, would be ideal: it would simply state that nothing in the federal constitution shall be construed so as to require the recognition of same-sex marriage.

While I agree the FMA goes way farther, I see very little value to your Amendment. I get the whole “to each state their own”, but, if that is your argument, I think you would have to admit that no state, nor the federal government, needs to recognize a marriage from another state, whether same sex or not. Any other rationale basically boils down to the tedious “gays are different” argument.

[John_Mace]

@Bricker

In the current environment, I would think advocates of same-sex marriage would be a bit worried about “winning” a Supreme Court victory at all. What would spur the Federal Marriage Amendment to greater success than a court ruling exemplifying precisely what the FMA proponents have been arguing was necessary all along? (And, incidentally, Congressional FMA opponents have been arguing the the FMA was unnecessary because of DOMA.) An SC ruling that recognition of same-sex marriage was required by the federal constitution would, in my view, ensure quick passage of the FMA.

This is exactly what confuses me about those who would urge such a SC test on the subject of gay marriage. If the FMA actually passed, it would be, for all intents and purposes, imposible to repeal. You’d have to have 3/4 of the state legislatures decide that SSM must be enforced at the federal level, and I just don’t see that ever happening in this century,and maybe even not the next one.

What do you think the odds are, though, that we’ll see a case bumped up to the SCotUS in the next year or so? I can’t help but think that there are gay couples in MA who will try to file joint federal tax returns this April, and will appeal up to the Supreme Court to force the issue. If not that, what do you think the mosly likely scenario will be for the SCotUS to have to consider the issue? I assume that there are many cases which the SCotUS will simply decide not to take, if a lower court rules against federal SSM, but I would expect they’d pretty much have to rule on a case in which the next lower court ruled that SSM was, in fact, guaranteed by the federal consiitution.

[Polerius]

@Huerta88

The analogy is, in fact, exact, and it is yours that fails to represent the situation correctly.

Well of *course *! :rolleyes:

There are two different classes of theoretical contracts (A & B), and two groups of people (X & Y) who may want to enter into one or the other of the types of contract. “X & Y” can be "heterosexual marriage and ‘homosexual marriage’ or “18% loans and 19% loans.” “A & B” can be “practitioners of heterosexuality and practitioners of homosexuality” or “non-loansharks and loansharks.”

In my analogy, all Xs and all Ys can enter into all As. No Xs and no Ys can enter into any Bs. Thus, with respect to each class of contract, the state equally grants or denies enforcement to the contract uniformly without respect to the identity of the A or B trying to enter into it.

OK, let “X & Y” be " ‘intra-racial marriage’ and ‘inter-racial marriage’ “, and let “A & B” be " ‘practitioners of intra-racial dating’ and ‘practitioners of inter-racial dating’”.

Assume both A & B are allowed to enter into contracts of type X, but not of type Y.
Is that OK with you?

So heterosexuals and homosexual are equally free to have the state extend some special status to their decision to contract for marriage with an adult of the opposite sex, and equally unfree to require the state to extend status to their attempt to “marry” a child or a person of the same sex or a redwood tree.

Continuing with my above example:
“So blacks and whites are equally free to have the state extend some special status to their decision to contract for marriage with an adult of the same race, and equally unfree to require the state to extend status to their attempt to “marry” a child or a person of the opposite race or a redwood tree.”

You’re fine with this?