Huerta88, the parallelism between loansharks and homosexuals was great :rolleyes:
It could have been any other proscribed conduct. As you can imagine, there were worse examples. Hell, it could have been someone entering into a contract to sell fish and chips wrapped in newspaper as opposed to sterile wax paper. The point is, in this particular analogy, one form of contract is one the government/its constituents choose to lend their enforcement/imprimatur to, the other is a type it deems less socially useful and hence not enforceable.
So, you’re still fine with inter-racial marriage bans?
So you agree to state recognition of marriage between a man and his German Shepard?
“Still fine?” And still beating my wife, right?
Three alternative answers to your hypothetical.
-
Your question suggests one of the deep and fundamental flaws in debate on social and legal issues in modern society. I can’t really tell whether this thread is a thread about what the Constitution or laws do require, or what they should require, or what we’d do if we ran the circus. Threads do veer around (I’m probably guilty of this myself), but if we’re in constitutional analysis mode, and then you ask “are you fine with this?”, something’s wrong, because my being “fine” with something doesn’t make it constitutional or unconstitutional, or even obviously a good policy or bad policy. I’m sensitive on this issue because of the number of times I run into highly-opinionated, legally-hopeless people who confuse their strong advocacy of/opposition to a policy (being “fine” or “not fine” with it) with its being “a constitutional right” or “unconstitutional.” These legal terms of art are threatening to become mere intensifiers – “that is a wicked bad policy! Man, it’s like wicked unconstitutional bad.” Anyhow, my point: my being (personally) “not fine” with laws against interracial marriage is a basis for me to vote against them as I would, but doesn’t in itself make them unconstitutional or even mean that I can expect everyone else to oppose them as a matter of logical necessity just because I do. Same for my being relatively “fine” with omitting recognition for “homosexual marriage” – I’d never argue that my “fineness” with such non-recognition is an absolute reason why it’s “constitutionally mandated” that the country cannot ever recognize such “marriages,” or for why my fellow citizens are logically forbidden to have and act on a different position, e.g., to lobby against such laws on the grounds that they’re not-fine. I sometimes suspect that my efforts to distinguish my personal preferences from constitutional mandates or legal absolutes is not the norm in these discussions, but who knows.
-
The Constitution in multiple sections provides explicit protection for racial minorities that it doesn’t for homosexuals. The default rule is that the states can make the laws they want on contracts, or law enforcement, or whatever, unless they’re clearly forbidden by the Constitution. In this test, blacks have, in practice, an easier time meeting a threshold of calling constitutionality into question because they’re an explicitly protected group under the Constitution. Singling out black marriage for your parade of horribles makes it somewhat of an exception that proves the rule – it’s pretty easy and lawful for the State to decide whichever contracts/marriages it wants to honor, at its option, unless of course it screws a suspect class (like blacks). Great, but homosexuals (or 19% lenders) aren’t a suspect class, whereas blacks are.
Don’t worry, though, the lack of explicit suspect class protection for homosexuals in the Constitution isn’t, in my estimation, an insuperable barrier to the right Supreme Court discovering one in the folds and penumbras of some Amendment or another. And so the crowd who prefers getting their victories in the court and not the electoral booth can keep playing that jackpot.
- Another problem with your parade of horribles example is that it illustrates that our system of checks and balances provides some reasonable safety valves. If someone attempted to pass a law against intereracial marriage tomorrow, a constitutional amendment explicitly guaranteeing the right to interractial marriage would swiftly be enacted. On the other hand, America’s probably closer to passing an amendment against “gay marriage” than in favor of it. So in the interracial marriage instance, the practical effect of either an equal protection or constitutional amendment victory for blacks would be the same. On “gay marriage,” the effect of a contriving such a right via a constitutional challenge is to thwart the will of much of the populace.
That’s a really silly line of reasoning. Constitutional protections do not apply to non-human animals. And there is no way of knowing the wishes of a non-human animal wrt marriage, even if the protections DID apply. Similarly a man cannot marry a woman in a coma just because HE wants to marry her.
No reason to keep arguing about the details, but I’d like to address this issue:
Regarding slavery and civil rights, THANK GOD “the will of much of the populace” was thwarted.
That is, if the will of much of the populace is thwarted, this is not in and of itself a bad thing, if the populace is being immoral and bigotted.
I see that Bricker and Huerta (and yes, you should consider dropping the “88”) are doing a fine job on addressing the constitutional issues, so I’ll just nitpick this one data point.
How many of those 18.4% of childless married women are planning on having kids at some point? I’d wager a healthy number. Indeed, that’s exactly the situation my wife and I are in – 31, married for eight years, and just now starting to plan to have kids. Just because we don’t have children yet doesn’t mean we never will.
I, like Bricker, fully support legislatively-enacted civil unions, and while I’ve got a gut-level reservation or two about the legislative enactment of full-on gay marriage, at the end of the day I favor that outcome as well.
Having said that, the whole “but we let infertile couples marry” schtick is silly. There is a respectable argument to be made that marriage is principally an institution crafted for child-rearing. But government has to make concessions to administrative reality. It’s just flat out a lot more efficient to let all heterosexuals marry rather than checking the ovulating status and sperm count of every prospective bride and groom.
After all, we don’t let kids drive until age 15 or 16, either, and we impose that restriction in the name of safety, even though some 14 year olds are probably excellent drivers and some 16 year olds are quite clearly public menaces. The existence of that bright line, drawn for administrative convenience, does not make the public safety rationale irrational. And neither does the fact that some infertile couples marry establish that the childrearing rationale for marriage is without merit.
If you want to argue that marriage isn’t principally about childrearing, fine; I’m not terribly taken with that notion myself. But that particular line of argument is a silly way of advancing that thesis.
The 13th Amendment was passed by the supermajorities required to amend the constitution.
The 1964 Civil Rights Act was passed by legislative majorities in both houses of Congress.
I didn’t know “wagering” was a valid form of proof.
Can we have some cites please?
It is without merit.
Is calling an argument “silly” a formal debate tactic also?
That doesn’t prove that the majority of the *people * wanted it to happen.
In fact, using your debate technique from above, I’d wager that a large percentage, if not the majority, of people in the South were against Civil Rights.
There is no mechanism for a national, popular referendum. Those legislative actions were passed by a majority of the people’s representatives. That’s the only measure we have.
I think we’re still working backwards as it pertains to the issue. The issue is not whether a super majority is needed to grant gay people equal rights but that legislation has been passed abridging those constututionally protected rights without a super majority, or more precisely, without the constitutopnal changes that would be required to make that legislation legitimate.
I didn’t imply otherwise.
I just said that the Civil Rights Act “thwarted the will of much of the populace.”
This can happen even if something passes via legislative means.
There is no way to know the “will of the populace” except as expressed thru their legislators. And even if there were some states in which we KNEW the will of the populace was to deny civil rights to racial minorites, that’s not how things work at the national level. It’s the will of the populace OF THE ENTIRE COUNTRY, or THE MAJORITY OF THE STATES that matters on federal issues.
This is not a nit-pick. It’s a very dangerous idea to advocate “thwarting the will of the populace” because there is no way of controlling things so that the will only gets thwarted when YOU want it to be thwarted.
Just because I can’t conceive a child with my boyfriend doesn’t mean I never want to raise children. I definitely want to have at least one child.
The argument about infertile heterosexual couples being able to marry is not silly – what’s silly is the desperation to fall back on arguments about child-rearing when you’re talking about homosexual marriage. I haven’t read the text of all the marriage bans that were put in place on Tuesday, but I have never seen one that mentioned child-rearing. They only say that “marriage” is between a man and a woman, and a man and a woman exclusively.
What about a couple who plans to adopt children? Sure, fine. Unless they’re a gay couple.
What about a woman who wants to have invitro fertilization, or have a surrogate father for a baby she plans to raise with her wife? No dice.
What about a man who has a child and wants to raise that child with his husband? Can’t have that either.
Sure, the childrearing rationale for marriage has some merit. But not enough to use it to prevent those who don’t want to have children from marrying. We don’t do that now for anyone except for homosexual couples who don’t want to marry. That’s the issue. It’s not fair, it’s not equal. And the child conceiving rationale, on the other hand, has no merit at all. It’s obvious why I can’t conceive a child with my boyfriend, I know enough about biology to get that, thanks. But I haven’t heard anyone give sufficient reason why I wouldn’t be able to raise a child with my husband.
You can debate until you’re blue in the face about what marriage should be – I’m saying, this is what marriage is now, and no one has adequately explained why I can’t have it. Because it’s not about the continuation of the species, it’s not about the welfare of children. It’s about trying to stamp out homosexuality by reinforcing the notion that it is not condoned. It’s all about that “gut-level reservation” that you talk about, disguised as something else.
But why are you focusing only on the will of the populace at the national level?
Doesn’t the will of a state’s populace have any weight?
Wasn’t the National Guard violating the will of the people of Arkansas?
Of course, you can argue the national angle, but I don’t see how it takes away the fact that the will of the people of a state was thwarted.
Today we all see that it was a good thing that this happened.
Agreed.
That’s why I’m *not * advocating “thwarting the will of the populace”.
It’s just that in history there have been some cases where the will of the populace was thwarted, but it turned out to be a good thing.
This maybe a bad example, but an analogy is monarchy. That is, I don’t advocate monarchy (for many reasons, one of them being that you don’t know who you’re going to get), but I can recognize that in history there have been some monarchs that were good for their countries.
Sure. There’s a reason I said it in response to an equally silly statement.
[/quote]
Constitutional protections do not apply to non-human animals. And there is no way of knowing the wishes of a non-human animal wrt marriage, even if the protections DID apply. Similarly a man cannot marry a woman in a coma just because HE wants to marry her.
[/QUOTE]
Exactly. Constitutional protections do not apply to non-human animals. We don’t care whether they want to be married, so their “opinion” is irrelevant (which is clear, they don’t get an opinion in whether they want to be a pet). So the desire of the human is what matters. And I tell you that according the logic I see thrown around here, you are not receiving equal protection under the Constitution if homosexuals and heterosexuals can get married, but you and your dog cannot. Otherwise, you are saying that a different genital/genus-species arrangement determines whether you can or cannot get married, which is clearly wrong.
Sorry. I guess I missed the context.
No “legislation has been passed” abridging any recognized right to “homosexual marriage.” Rather the absence of any legislative, congressional, or Supreme Court enunciation of a right to “homosexual marriage” means that there is no right to be abridged.
Who (other than you and other individual citizens, certainly not a majority or supermajority) has clearly announced and promised to enforce a “constitutionally protected” right to homosexual marriage?
It would be a neat trick to say "My opponents must pass a Constitutional Amendment by a super-majority (glad you’re picking up some incidental knowledge about how the Constitution actually works in the course of blasting out fatwas about how you “know” it must work), explicitly banning “gay marriage,” in order to overcome the “constitutionally protected” (yet never-explicit, never-recognized, and never-enforced) “constitutional right” to “gay marriage” (for which Diogenes, naturally, doesn’t have to adduce a majority or supermajority – though we did have such a constituency at some time in the “inherent” past, you betcha, but it’d just be too doggone much administrative inconvenience to re-form that coalition that clearly agreed with us that they were passing a pro-sodomy 14th Amendment – not that they wouldn’t re-form, oh they would for sure . . . ad nauseum).
Unfortunately, too-cute quasi-legal arguments tend to get about as much serious play as any form of cuteness: a pat on the head and not much more. I doubt any serious jurist, of the most liberal stripe, would give your looking-glass view of where things stand right now, vis a vis the current existence of a clear constitutional right to “gay marriage,” anything nearly as congenial a reception as even a pat on the head. Calling such jurists corrupt bigot morons because of this may feel good, and if so, go right ahead; they’re not listening, that’s for sure.