I hereby withdraw my previous acquiescence to your having agreed with me and ask, nay demand, that you withdraw it at once.
I want you firmly in the opposing camp.
Bricker, in light of the above would you like to take this opportunity to reevaluate your position?
“Reevaluate?” Or “regret?”
My position here has two components. The first is the proper role for the judiciary in making new law by way of new constitutional prenumbral rights; I have consistently opposed this, and I’d be just as critical of a decision that sought to invalidate a same-sex marriage law by finding same-sex marriage violated some constitutional principle.
The second is the belief that public policy at this time is better served by a civil-union alternative to marriage for same-sex couples. I would certainly concede to the people of Massachusetts the right to make that detremination for themselves, by way of their elected representatives, although if asked for advice I’d advise against it.
It’s unclear to me which component has drawn milum’s approval.
- Rick
Dogface:
(I’m sure you don’t mean that you wouldn’t consider marrried atheists to be truly married)
Actually, some couples consider themselves as having been married in a de-facto sense long before the actual ceremony. More than anything else, marriage is a commitment, an agreement, a promise to form a permanent, exclusive relationship with another person and share a houshold together, etc. The ceremony is just window dressing. And the government reconition is in regards to those stipulations you mentioned which are relatively unimportant. It’s how you and your partner think about each other that counts. The religious ceremony does add the weight of solemnity to the vows, and the witnesses are there so you can’t deny it later, but I don’t think God has anything to do with it.
A question I would like to ask in response to “marriage is defined as a union between a man and a woman” is, how do you define LOVE? Isn’t it ironic that that word almost never comes up in this issue?
I called your comment stupid, not you personally.
My apologies about mislabeling TVAA’s comments as yours, though – I was cut-and-pasting the coding to save time and forgot to change the name.
It’s not necessarily relevant. A man may feel romantic love for two women, but I assume you’re not contending that is the sine qua non for simultaneous marriage to two women.
Or maybe you are.
In any event, I’d define “love” as the feeling for another person such that his or her happiness and welfare is as important to you as your own.
I don’t think that helps us define what marriage should be. Certainly a marriage should be based on love, but love alone does not create sufficient conditions for a marriage.
- Rick
Which points to a problem with the proposed Dogface Amendment (Which IMO is summed up as: “Since calling Civil Marriage and Sacramental Marriage by the same word causes problems, let’s use that word to refer only to the Sacramental kind, and find something else to call the Civil one while leaving it identical in all its legal sense”[li]). You’re dealing with something very close to the heart of a lot of human beings and a very deeply ingrained social concept. If mommy and daddy got hitched in a civil ceremony, are we to teach the kids that they are NOT married, they are NOT to be called husband-and-wife? We’d have an easier time getting atheists to be called “brights”.[/li]
[li]And I’m sure you can probably see one objection to that strategy right away: why should it be the Civil that surrenders the word to the Religious?() Why not have it be that the Civil institution is the one who gets to keep the word “marriage”, and the Religious one is the one that as to find an entirely new word? Call it Sacramental Matrimony and the people involved are said to be matrimonied, and called spouse and spousess?[/li]
()And before anyone argues what I think they will: In the West, Civil Marriage predates Christian Sacramental Matrimony. And though I’ll respect Dogface’s holding to the tenets of his faith as to marriage, they are NOT persuasive when arguing policy with someone outside the faith, as in such a case the discussion has to assume marriage was established by human society, NOT by God.
[QUOTE]
*Originally posted by JRDelirious *
[li]And I’m sure you can probably see one objection to that strategy right away: why should it be the Civil that surrenders the word to the Religious?(**) Why not have it be that the Civil institution is the one who gets to keep the word “marriage”, and the Religious one is the one that as to find an entirely new word? Call it Sacramental Matrimony and the people involved are said to be matrimonied, and called spouse and spousess?[/li][/QUOTE]
Because right now there is no same-sex marriage. Getting enough people to agree to surrender the fucntional aspect will be tough enough; getting people to agree to giving up the word marriage on the religious side may make the hill too steep to climb. I’m a perfect example: I support a civil union type solution, but am opposed to it being called a marriage. You may wail at the unfairness, or you may accomplish substantial progress.
- Rick
Or, you know, we could just sit and whine about it “always having been that way” like the folks on your side of the argument do.
Tradition is shit. Period. I don’t care what people did 100 years ago. I don’t care what people did 50 years ago. I don’t care what the majority of people do now.
If there were true justice in our judicial system, you folks wouldn’t have the option of “surrendering the functional aspect,” just as the rights-deniers in the 60s didn’t have the option of surrendering their particular prejudices.
Point the first. Constitutions, by definition, are broad statements of principles. They are not sharply defined, even state constitutions which are typically far larger and comprehensive than the federal constitution. If you could please justify why you believe there would/should be no “penumbras” in intentionally broad statements.
I understand that you feel the legislatures should discover these “penumbras” and build legal frameworks to protect these rights pro-actively. Still, it can not be helped that there would be situations where the legislatures did not fully flesh out all of the rights intended to be protected by the broad statements in the constitutions. What, exactly, is the problem with the courts making rulings to protect the rights implied by the constitution and which the legislatures, for whatever reason, have failed to address?**
Point 1. The difference between a Civil Union granting all the same legal rights(inheritance, co-ownership of property, tax status, etc) and a Marriage is either wholly semantical(there is no actual difference except the term) or the two are differentiated by the involvement/sanction of religious bodies.
Taking these two possible differences in turn, I personally see no inherent value in the term “Marriage” which would justify creating an entire new class of legal situations, Civil Unions. The paperwork, the “Civil Union license”, the “Civil Union, Filing Jointly” tax status, etc. would create two identical sets of law. If Civil Unions are actually going to be considered the legal equal of Marriage(as the law requires), then, by definition, all of the laws and statutes regarding Marriage have to be replicated with virtually nothing changed except for a search/replace all “Marriage” with “Civil Union”. I can’t justify growing the, already bloated IMHO, bureaucracy for such a change. What about the word “Marriage” is so inviolate(from a secular standpoint, as SOCAS requires) as to justify this creation of an entirely new legal framework when one already exists which is, by definition, exactly what is needed? You claim this increase in bureaucratic red tape is in the best interests of society(the direct quote is “public policy at this time is better served by a civil-union alternative to marriage for same-sex couples”) and you would recommend this solution. I’d like you to support it on secular grounds if you would please.
The second difference between a Civil Union and Marriage is the history of Marriage as being a dual-natured institution. The civil component, and the religious component. If your objection is of a religious nature, I would ask you to consider two points. First, the doctrine of seperation of church and state. Secondly, consider the burden restricting homosexual unions to “Civil Union” status instead of “Marriage” status would place on a religious institution which supports homosexual marriage. A church which sanctions both heterosexual and homosexual marriage can perform a marriage ceremony for a heterosexual couple and have it considered a “Marriage” and perform a marriage ceremony for a homosexual couple and it is still only considered a “Civil Union”. In this case there is no significant difference in the eyes of the law(Civil Union and Marriage provide the EXACT same treatment under the law) and there is no difference in the eyes of the Church. So why the distinction? If you respect religion, why are you still demanding this church apply the “civil union” label when they see no difference?
I recall a defense of the proposal for making the purely semantical distinction between a Civil Union and a Marriage which said that making Marriage, as a legal concept, inclusive of same-sex couples, this was an imposition on the religious aspect of the institution. The religious aspect of the institution was not willing to apply the term Marriage to same sex couples. Therefore it would abridge the church’s right to define its own ordinances. A same-sex Marriage performed in a purely secular civil ceremony(such as a Justice of the Peace) would have, implicitly, the church’s sanction because the term “Marriage” carries a common connotation of having been sanctioned by a church. Now, with the proposition that same-sex unions must all be considered Civil Unions, again there are churches which will be imposed upon. Churches which consider Marriage to be inclusive of both homosexual and heterosexual unions are being ordered to use different terminology for the unions they perform. Both solutions impose burdens on religious institutions. Either the religious institutions which regard same sex unions as legitimate Marriages must be burdened, or the religious institutions which regard same sex marriages as illegitimate must be burdened. Which is it to be, and why?
Enjoy,
Steven
The problem with this approach is that it’s unpersuasive. You may not care. You have a certain view of what is right, of what is just. But you are not an autonomous island. You are, in fact, arguing for a change to our system of laws, a change which our system generally demands be met with the approval of a majority of the participants therein. You don’t care what the majority wants now – but without the majority, you cannot accomplish what you seek.
In other words, just because you say so, don’t make it so. If you can’t convince me, and others of my ilk, your convictions alone will not change the system. Like it or not, what you need is approval from enough people - or from the right people - to compel change.
- Rick
But you’re not going to be persuaded, because there’s no rational basis other than “we’ve never done it that way.”
“It might harm society,” is unpersuasive to us. People argued that about racial equality. People argued that about women’s suffrage. People argued that about democracy!
The government has no business impeding the enjoyment of a right unless it can show a compelling government interest in restricting that right. Loving vs. Virginia established that marriage is a right in the USA. Government non-recognition of marriage for gay couples is a restriction on that right. The government has no compelling interest in doing this other than “Ewwwww!”, which, as has been mentioned, is not a very persuasive argument to people who aren’t mired in “the way we’ve always done it.”
I think that it is interesting how the insurance industry sits back reasonably quiet and lets the religious right fight its battle for them.
I’m not so sure that is the case. As a single person, my life and health insurance premiums are incredibly lower than a married with kids person. I think the insurance companies have already baked into their premiums marriage, so whether it is gay or straight marriage probably makes no difference to them.
Bricker, you seem to be serious about a law’s legitimacy resting on, and only on, momentary majority popular opinion, and not on constitutional principle. If that’s accurate, it’s a pretty remarkable statement. Is it what you really mean?
Absolutely not.
My reading of Bricker’s point seems fairly simple, and I hope that doesn’t just mean I’m a simpleton for it. The 9th notwithstanding, rights need to be discovered ie legally recognized before they have any weight, even if we do retain all rights not explicitly forbidden. Hence the mention of Miranda. On one hand, the right existed beforehand; on the other, no one could point to anything to explain how it would exist or in what manner it would be applied etc. It is one thing to say these rights are already there in some vague “but no one said I couldn’t” sense, and quite another to have a legal definition and understanding of them—something, we might see, that is necessary in the legal system.
I hope I got that right. If not, then I plead temporary stupidity due to lack of sleep, and move that this post be stricken from the record. The jury will disregard etc.
If that’s what he means, he’s still wrong - the definition of the legal rights and responsibilities of marriage is pretty explicit. All that has been “found” is that legal rights are for everyone.
But, Bricker, you’d do much better by expounding on the intersection of your legal and social philosophy yourself. That last post of yours did not push back the curtains of ignorance one bit.
It seems to me that all “constitutional principles” (which so far haven’t been specifically identified by those relying on them in this thread), laws, rights and the like are “vague.” In all cases, no one really knows what the limits are until there is a dispute about the limits. I don’t think there are very many of the Articles in the US Constitution that haven’t been subjected to a judicial finding as to exactly what is meant by the particular Article in a particular case, which then serves as a finding for all similar cases. And it seems obvious to me that the application of those “constitutional principles” will shift over time so much that it isn’t outlandish to say that the “principle” itself no longer means what it used to. For example, what constitutes and action that “promotes the general welfare” is not necessarily the same action now as was the case in 1789. And even what constitutes the “general welfare” doesn’t even mean the same thing now as then.
As to the existence of rights, I would argue that, legal nit picking aside, we have mainly acted that way in the past, Scalia notwithstanding.
Take the simple case of driving an automobile. At the beginning all you needed in order to drive one was to have one, owned or borrowed. Cars were operated according to the same rules of the road that applied to horses and you didn’t need a license. It soon became clear that cars were not horses which, unless blind or badly frightened, will not run into things and a certain amount of training in driving a car would be desirable. And so the unlimited right to drive a car was replaced by a whole body of laws including the need to get a driver’s license which requires that you prove you know how to drive one.
I do think that we have, and should have, a perfect right to do whatever we please as long as it doesn’t disturb the “domestic tranquillity” whether or not it is “legally recognized (in erislover’s phrase).” If, and only if, someone disputes that and claims that our actions cause them injury should the law step in and have a court resolve the dispute.
And, as I said, so far these high and mighty “constitutional princliples” upon which all is presumed to rest haven’t been specified by thise citing them.
I believe they are living in an ivory tower who think that there are unalterable principles beyond the simple idea of allowing maximum personal freedom while at the same time maintaining public order and predictability. In other words, like almost everything in the sociolegal area, it is a balancing process between individuals and society at large. And it seems to me that the burden of proof should be on society at large.
In addition, we shouldn’t ask lawyers to define this for us. They often are so busy examining the bark on the trees that they seldom step back to even see the tree, let alone the forest.
Elvis1ives
How would that counteract what I said? It couldn’t have been so explicit as to cause the entire state to go, “Hey, look, gays can marry!” Granted, I must admit the possibility that most of the state is entirely obtuse; after all, look how they drive. But in any event, the judge’s decision was necessary to get here. It’s eternal truth is irrelevant except in a philosophical sense. As a matter of principle, I think anything not explicitly forbidden is legal, but my principles have very little to do with how our government actually is.
I think that’s a huge point, David Simmons, and even if I didn’t paraphrase Bricker well at all I am more than happy to take sides with it anyway. Laws are viewed from a certain perspective, and that perspective can’t be shown to be legally incorrect until it is legally shown to be incorrect, as was the case here, even if the text of any particular law wasn’t completely explicit.
Cite, schmite… that’s “clearly” what they meant! 
On one hand, I am pretty happy that MA will pretty much have to issue marriage licenses, and that the time it takes to change the state constitution might very well tip the public back in favor of it; on the other, I worry that the federal government will whip something up in the interem.