You are just plain weird. Receptiveness, or openness to arguments has nothing to do with it. I will never be open to any argument you make. However, if you were to somehow come up with a rational argument against gay marriage, then I would be forced to admit to that fact. I don’t see how you can keep ignoring the fact that people are asked to make reasonable arguments in support of their position. Possibly, you are projecting opinions of how you feel the world should be onto how you believe people should hold conversations. These standards, however, are not how the world works.
The above comment was in response to ElvisL1ves, not elucidator.
elucidator:
You and I have a fundamental disconnect of another nature.
You say:
OK. I accept that.
The problem is that you’re basically designing your own test for the validity of equal protection law. What you propose is not unreasonable - after all, you’re couching it in terms of reasonableness! - but it’s not the system of judicial evaluation that exists right now.
You do well to mention “common law” here, because I believe you are arguing, though you may not know it, for a return to the common-law system of old. In the days of yore, when judges represented the Crown, they were guided, more than by any other principle, by the goal of seeing justice done. They fashioned equitable solutions to problems of fact, and created guiding principles that were intended to be followed by others. If a subsequent decision applying that principle created an unjust result, the clever common-law judge distinguished the cases.
English statutory law existed, but it was virtually silent on a wide swatch of subjects – including contracts.
Let me tell you the story of Hadley v. Baxendale. A mill was faced with a critical problem when their main crankshaft broke. Unable to work until a new one was installed, they were required to send the old one by courier to the manufacturer, miles away.
After they sent the part, the mill told the courier that they were unable to work at all until the new part arrived. The mill asked the courier how long the return delivery would take. The courier promised next-day delivery – but, due to their negligence, several days elapsed before they delivered the part. So the mill brought the courier to court, saying that the courier had breached his contract and asking, as damages for the breach, his total lost profits for the extra days he was out of service. The courier responded that he couldn’t be responsible for such damages.
The judge found in favor of the courier. His decision was that the courier could only be liable for the kind of damages that were reasonably contemplated by both parties at the time the contract was made.
There was no Parliament law in support of that decision. There was no previous court decision on which to rely. The judge simply decided what was fair, and ended the case… as well as, of course, creating a principle of law that would be applied to countless other cases as well as tormenting countless generations of first-year law students.
This system existed in England, and in our colonial days here as well. Even the original legislatures were considered “courts” – this is why Massachusetts’ legislature is still called the General Court of Massachusetts. But we had a little disagreement in 1776, and we replaced the idea of judges as representatives of the King. In place of that model, we instituted democracy. In our new system, legislatures would be elected by the people, and the laws they make would reflect the will of the people. Mindful of the problems in that approach, we decided that a majority of people were necessary for some exercises of democracy, and a supermajority in others. But at the heart of our new system was the idea that the people, through their elected representatives, were the sovereign power.
Of course, plenty of refinements have happened since then. Judges still exist, and still follow the precedents created by the common law. But today, we expect that judges will confine themselves to interpreting the law created by the legislature, not devising their own… even if their solutions are more reasonable then the legislature’s.
It’s true that in the short term, we may expect some less-than-optimal results from this system. A fair and wise judge, unbowed by political pressure, can doubtless craft better solutions for us than a legislature swayed by the political breeze of the moment.
But by the same token, a fair and wise monarch can undoubtedly rule us better than an elected politician swayed by the political breeze of the moment.
We rejected that method of governance, because we saw what happens when the supply of fair-and-wise men runs dry. So, too, must we reject the supreme legislative power being given to judges now, even if, individually, their acts are wise and just.
This is why I favor the process over the result. The process is, in the long run, far more important.
No, I don’t believe you would admit to a rational argument against gay marriage, because you set the bar too high. I believe, in your mind, a rational argument is one that convinces you of the correctness of the position. That’s not what “rational argument” means here. In Equal Protection analysis, “rational” refers to the acknowledgment that the competing argument is based on reason. It doesn’t have to convince you. It may be something you weigh against an even MORE rational argument and find wanting. It just has to be based on some sort of reason and logic.
In other words, you want the court to act as the legislature. The court is supposed to review the acts of the lgislature with great deference. But you’re not according great deference to the legislature. You are substituting your judgement for theirs, saying, in essence, that they reached the wrong result.
In short, you’re not using the correct rules to arrive at a decision. You’re using your own rules, not the rules of Equal Protection analysis.
Well, you believe incorrectly, If you were to posit a rational argument, I would most likely be swayed by it. However, you refusal to do so isn’t helping your case.
I see. It’s like" A ban on guns" can mean either handguns, or all firearms in a discussion. However, I am still :dubious: Your definition appears to be no different from the definition of sophistry .
No, I want laws made that people can say actually make sense most of the time. Not one based on the fact that people think gays are icky. The legislator, or the common people can create laws all they want. When the courts find a law doesn’t make sense, as they have, the judges tell the legislature to actually write laws that make sense, as they had, or suffer the result of a law which makes no sense being struck down.
No, I am arguing using the actual meaning of the word. You, however are using a definition that combines “Optimum results” with “convincing” As I am not a lawyer, and have never heard of this definition before, that is to be expected.
Elvis, **Scott **and '**luci **: You guys are stuck in a semantic quagmire, trying to use a layman’s definition for legal terms that mean something very specific when making judicial arguments. 'Luci’s idea, interesting as it might be, simply is not the way the legal system currently works. This Boston Globe article should be of interest. Note:
The rest of the article goes on to describe “rational basis-plus”, which is kind of what you guys are arguing, but which O’Conner still says doesn’t mandate gay marriage (a lot of hand waving on her part, if you ask me).
And you see the age correlation because age correlates with driving experience. Who’s to say you aren’t just using age as an inferior proxy for driving experience?
Been there, done that… but it’s cute that you assume I haven’t.
If my 14 and 15 year old relatives had mastered the mechanical aspects of driving, and if my insurance would cover them, I’d let them drive my car, because IMO the emotional requirements of driving are grossly overstated. If they can handle archery and target shooting, they can handle driving.
Here’s a simple examination that costs nothing: ask marital candidates a few questions like “Are you and your spouse unwilling or unable to have children?” “Have you ever undergone a hysterectomy/vasectomy, been injured in such a way that your reproductive organs were damaged, or been declared sterile by a physician?” If they answer yes, reply “I’m sorry, marriage is for people who are going to have kids. Next?”
Sure, it means trusting the candidates to be honest, but it’s better than nothing. It would provide official evidence that marriage really is about procreation, and if by some chance the state found out later that someone really is unable or unwilling to have kids, it could revoke their marriage license. As it stands today, however, no one makes even the slightest attempt to ensure that a man and a woman who want to get married are going to procreate.
The law has no business discriminating on the basis of something that can’t be measured.
Ever been to Colonial Williamsburg, Dewey?
If you have, you’ve probably seen the Colonial Williamsburg Fife and Drum Junior Corps march. You’ll know if you’ve seen them; there the one’s in the white coats and the silly-looking multicolored breeches. They range from about ten to fourteen years of age.
Now, their tuning is franky awful, and they still need to work on their intros, but their drill and their actual playing (if you don’t catch them on a bad day) isn’t bad. Moreover, knowing that such alumni as I are frequently in the crowds watching them, they do not break attention. Ever. Not even when a horsefly is crawling around their face.
Why do a bunch of ten- to fourteen-year-olds do this, even on days when the crowds are so sparse that it’s clear that none of us are watching? Simple: it’s driven home from the moment they enter the Corps as recruits that this is the behavior that is expected of them. That, more than any fear of punishment, is how the Corps keeps disclipline.
Of course, if you know that every single teenager is an immature, petulant child who shouldn’t be trusted with string, let alone a car, and you treat every teenager as such, then that’s exactly what you’ll get, on up through and past adulthood.
Finally, I’ll reiterate my challenge: if you can’t test for maturity, how do you know it’s needed to drive safely? And if you can test for it, why not do that test instead of an age test?
Fair enough – although we’ve had many threads here that have undertaken to explain Equal Protection jurisprudence in detail.
And while most news reports don’t bother explaining the process, the Boston Glove article quoted by John Mace at least offers an overview.
I grant you that legal terms of art can be confusing, especially when they sound as though they are referring to an ordinary conversational term.
But the fact of the matter is that this IS a legal term of art, and it DOES have a specific meaning… which is why I devoted considerable text above explaining it.
If you go back over this thread, and the many others touching on this subject, I think you’ll be surprised to learn just how patient **Bricker **has been in trying to explain the way the phrase “rational basis” is used in a judicial context. Most people are too busy verbalizing their own subjective definition to take the time to learn something about how the legal system actually operates.
IANAL, but I am a scientist, and I can appreciate how terms can have very precise meanings in a professional sense that conflict with our everyday definition of the very same term.
Then you haven’t been reading either. The point is that Bricker doesn’t have an argument that can be evaluated, regardless of what criteria would be appropriate if he had one. He’s attempted to divert the discussion, successfully in your case, into the quagmire of semantics about the standards of judging arguments in order to avoid admitting that there fucking isn’t an argument.
One more time: you don’t agree there exists ANY law that you personally don’t agree with, but which nonetheless has a rational basis. Since you don’t accept that standard when applied ANYWHERE, how can I possibly offer an argument here in this specific case?
Many threads, you say? Unfortunately, I do not read each and every thread. I have searched the term, and have found the vast majority of threads mentioning it are in regards to equal rights.
Now, when I made a topic on South Park targeting straw men of real issues, I tried to explain what I meant time and time again. I restated my case, and used different ways of explaining it. I did not simply say, “No, you are using the term wrong.” As Bricker seems to have been doing, instead of presenting real arguments. Now, he may have used the terms rational a lot, but I have just searched through the arguments in this thread, and before being overwhelm by the sheer amount of crap, I noted no good attempts to define his term. (In other words, I quit after the first page. No use wasting my time arguing for gay rights against an argument I have seen nowhere present in actual legal cases on the matter.)
P.S. Fine, so in law, the term rational means nothing more then “It can convince the majority of those who vote on it.” In that case, I hereby change my request for Bricker to present a rational, (In the normal sense) argument against same sex marriage, into a request for an argument that can at least not be defeated by a one-liner.
Examples: Claim: The purpose of Marriage is procreation. (Sarcastic) Response: My god, your right! I am going to start a petition calling for mandatory fertility testing for couples who wish to be married, and further more, all marriages are to be dissolved after 12 months, should the wife not be pregnant. All adults above the age where pregnancy is viable shall not be allowed to marry.
C: Marriage is quite important to society, and we can not have something that endangers is importance. R: All right then, let’s outlaw all Vegas quickie style weddings.
I could go one, but what it boils down to is there is no reason, presented in front of a court, that under this test would show why courts should deny people their rights. Looking back on previous threads, it seems that one way to do so is to ignore the fact that common sense enters into it at any point. Sure, people can argue as much as they like about legal precedent, but when it comes down to it, the fact they are arguing against a state constitution which quite clearly support equality.
By doing so. Freaking post an argument, already. Heh. Argument. What a bizarre looking word.
No, I’ve never said that either. You don’t convince a person of anything constructive by lying to their faces about what they’ve said. No one else is going to make a case for you, Counselor, you have to do it yourself.
What **Scott ** said. Go ahead and offer one. Tell us what bases you believe are behind the prohibition of gay marriage and *then * we can discuss their rationality. But don’t feign indignation about anyone’s refusal to consider a position that you refuse to state.
I came home last night to a defunct internet connection, and as I’m juggling projects today my answers here will be brief and directed at those queries addressed to me. My apologies if I missed any of them. More, perhaps, in a couple of days when the cable company fixes my home connection.
I note **Bricker **has, as always, picked up the substance of the constitutional argument quite well, and rather than be repetitive, I simply endorse his arguments on those points.
I’m glad you mentioned insurance. Ever wonder why young drivers are so expensive to insure?
Two reasons that such an approach would not work. First, because people have been known to change their minds about having children – biological clocks start ticking loudly. Second, because it encourages people to lie. In the same way that sham infidelity served as the basis of many a divorce before the advent of no-fault, this approach would simply lead to an epidemic of lying.
Yes I have. To your larger point – look up the term “self-selection.” This is a little like saying most teens are athletic, or are at least capable of athleticism, and pointing to the varsity football squad as proof.
This is nowhere near what I actually said.
This gets dicey, because SDP and equal protection are often lumped in the same ruling, and the courts aren’t always clear on where one stops and the other begins. Thus, we get “strict scrutiny” for “fundamental rights” – i.e., a test cribbed from equal protection applied to a substantive right with a genesis in substantive due process.
Having said that, I think equal protection, as traditionally understood and with the tests correctly applied, would indeed sustain such a law, though, as I’ve stated, such a law would without doubt fail under modern substantive due process jurisprudence.
I mean, really: what’s the argument that equal protection would forbid such a thing?
I can only conclude that you haven’t read a damn thing I’ve written. “Rational basis” has a specific legal meaning; applying that test neutrally to these facts does not yield the conclusion drawn by the Massachusetts court. It is an exceptionally low bar.
Can you not see how one can find an argument unpersuasive (even utterly unpersuasive) and still find that argument survives the negligible threshhold of rationality?
Is this all you’re capable of? I have yet to see you present an actual argument – all you’ve done is say “you’re full of shit, and you must just hate gays.” I’m paraphrasing, but that’s pretty much the gist of your participation in this thread.
The Boston Globe article I linked to earlier made it quite clear that any number of arguments could used in court to pass a “rational basis” test. The point is not to convince YOU there is a “rational basis”, but to convince the court. You want Bricker to convince you, and that simply isn’t going to happen.
Using the layman’s definition of the term, neither he nor you nor I would agree that there is a “rational basis” for banning SSM.
Nt quite, but that’s a better definition than you’ve been using, so perhaps I should quit while ahead.
Here’s why you’re still missing the boat.
We’ve talked about driving in this thread. The legislature sets the minimum driving age at 16. The purpose of this is to ensure physical and emotional maturity for drivers. Is there a better way to do it? Maybe there is. But as a judge, you don’t get to say, “There’s a better way, therefore the way you’ve chosen fails the rational basis test.”
(Incidentally, under the strict scrutiny test, you DO get to say that! Under strict scrutiny, the law must be “narrowly tailored” to reach the government objective. So if we were using the strict scrutiny test here, your proposed responses would be very legitimate.)
So, let’s place the driving rules into your “claim/response” format:
Claim: Setting the driving age at 16 advances the government goal of ensuring physical and emotional maturity for drivers.
Scott-type Response: Fine, let’s test drivers in simulators, and let’s cancel the licenses of any speeders or reckless drivers, because that proves their lack of maturity.
What’s the flaw here? You don’t get to mandate your own solution as a judge, EVEN IF IT’S A BETTER ONE THAN THE legislature’s. You are not another law-maker. You are limited to judging if the legislature’s solution has some basis in reason. No doubt it’s not perfect: some 16 year olds are not mature enough to get licenses; some 14-year olds ARE mature enough and are unfairly denied. Your system of testing in a simulator might beeter select skilled drivers than a mere age test. But that’s not the standard. You can only ask: is the age solution supported by some measure of reason? Yes: many 16 year olds are sufficiently mature, it’s as good an age as 15 or 17. Some aren’t mature enough; some younger mature drivers are excluded. But it’s quick, inexpensive, and easy to check age.
Now let’s do yours…
Is the proceration restriction supported by reason? Sure. Is it the best solution? No. Some infertile couples are permitted to marry. But it’s quick and easy to check the private parts of a couple and determine that there’s one of each variety, and that handles much of the load. Best way? No. But there’s reasoning behind it.
I don’t buy this one myself. If marriage is important, then letting same-sex couples marry furthers the interest of marriage. So I’d agree with you here: if the goal is “Marriage is important,” then a law forbidding same-sex maariage does not further that purpose.
First off, give a freaking reason why gays should not be allowed to be married or face a lifetime of being called a bigot, regardless of your intent, seeing as how, despite the fact your arguements reach the same goal as that of bigots, you claim not to be one.
I read the whole of the Mass decision, soon after it was made, over the course of a few days, and that is it. Being a lay person, that it is, besides newspaper summaries of decisions against SSM, all of which frankly where full of shit.
Well, let me give a real analysis of a hypothetical situation in which I would advocate a judge asking or a law to be changed.
Judge: I find that the courts are being overwhelmed by cases in which under-age drivers have been arrested. The vast majority of such drivers were otherwise complying with all laws. I see no reason to sentence them, but must do so under the law. Unless the legislature can present a ration argument (Used in your sense) why the law should stay the same, I will stoop persecuting drivers under the age of 16, and 14 or above, as per the paper issued by the last (person in charge of such things.)
This is a complete straw man, and I suppose I played into it in the above example of how I would like things to be. The majority of charges of “judicial activism” have been brought against judges who are ruling against new laws, in favor of old one. They are not striking down old ones, but saying that there is no reason the new one should displace the meaning of the old one.
Crazy reasoning, yes. Any glance at male/female couples becoming married at age 80, regardless of Viagra, would lead one to conclude the women womb could likely not “handle the load” Oh, and re checking if they have “one of each”, it isn’t that would be true if it really happened, but in fact, male-male couples have been allowed to marry, due to the fact that legally, one of them is female, having been born that way. It is would take reconstitute surgery to allow the formerly female partner to bear children, so no, they are not “checking the privet parts”
For one thing, I am not arguing that marriage is import, the concept, society does that for itself. What I am arguing is that there is no sane reason to deny equality to this group. For another thing, the Britney Alexander/Spears case. Claiming such marriages serve the goal “Marriage is important,” then… all is nought.
All of which are not the product of reasoning from principle or history or constitutional precedent, but rationalizations, invented after the fact for the clear purpose of making gaybashing respectable. That includes, of course, the absurd “procreation restriction” Bricker is offering as his best hope of vindication. Dewey has either stopped pretending to claim that that one has any validity, or he’s still confused between format and substance.
Obviously you don’t have an argument to propose that is derived from principle or history or constitutional precedent, either. At what point are you guys going to face what is in front of you, as the MA SJC already did?
Whoa, whoa, whoa…tone it down on this one, ok? Bricker is NOT a bigot, and especially not a homophobe. He actually was persuaded in a not-so-distant-past thread that gay marriage was a good idea and that it should be pursued.
Bricker is not arguing against gay marriage. He’s arguing against the way that it’s being implemented in the (currently single) instance that it is being implemented, and he’s arguing against the spread of that method any further. He has problems with the judicial arena being the one to open up marriage to us. He doesn’t have problems with marriage being opened to us, period. He simply thinks that the cause would be better served by it happening legislatively and popularly rather than through the courts.
It’s very unfair to label him a homophobe over a disagreement with method, rather than substance.
