I think we may be looking at a classic case of Ivory Tower syndrome here.
Dewey, I believe you when you say that in tort circles, “forced to hire” is understood to mean, “faces financial penalties if refuses to hire based solely on a protected characteristic.” Although that’s not the plain English meaning of the language, Lord knows that the law isn’t famous for its plain English.
However, you gotta understand that not everyone who participates in a discussion of the civil rights of homosexuals is versed in tortspeak. Many people use the phrase “forced to hire” to mean, well, “forced to hire.” And they hear attorneys claiming that civil rights protection forces people to hire homosexual job applicants, and they believe that, well, that civil rights protection forces people to hire homosexual job applicants.
And they think that’s a damn stupid law, because maybe the homosexual job applicant isn’t qualified for the position. And why would a lawyer lie about what the law says?
You may be right that you used the language correctly (in a tort law context) when you used the phrase “forced to hire.” At the same time, Otto may be correct to point out that the phrase is often misconstrued to mean what it plainly says, and that all too often the way the phrase is used in civil rights discussions conveys an incorrect understanding of the state of tort law.
While you’re technically correct, it’s very important to understand how language is used in nonlegal settings, because those nonlegal settings can lead to very legal state initiatives and other campaigns to change the law.
All the discussion of proper rhetoric aside, doesn’t anyone see something a little hypocritical about arguing both for an end to laws that don’t allow people to freely and openly choose the relationships they want, and at the same time defending laws that prevent from freely and openly hiring the sorts of people they want?
I’m not saying that there’s not a good answer that explains the distinction, but on the face of it, BOTH sorts of laws are restrictions of people’s freedom to enter into (and, as far as marriage) legally contractual) relationships of mutual consent. Both seem wrong: we should be free from people telling us who we can openly admit to fucking or not fucking, AND free from people telling us who we openly admit to hire or not hire. That some people in society don’t like our preferences for moral reasons (whether they be anti-gay, or anti-private-discrimination) is beside the point. They aren’t involved, no one is hurting them, it isn’t any of their (legal) bussiness.
As far as Sant’s comments go, I agree that laws allowing homosexuality do mostly open the door to allowing incest under certain conditions. As DtC says… I’m not sure what the big deal about that would be. He’s off his rocker about everything else.
Not to take anything away from the rightness of your main point but for the sake of accuracy I have to point out that adultery is illegal in lots of places. Wisconsin law seems pretty typical:
The state has no business regulating this either and I hope that Santorum’s legal analysis on this point is correct and that adultery laws would fall if challenged. I have no particular quarrel with Santorum’s legal opinion; it’s the bigotry of the remainder of his statement that’s appalling.
In a semi-related story, the New Hampshire supreme court is trying to decide whether gay sex counts as adultery for purposes of the state’s divorce law. And in an unrelated but telling story, The US is set to abstain from a vote by the United Nations Human Rights Commission calling on member states to act against discrimination based on sexual orientation.
Ah, but bigamy and polyamory are two very different things. One need not be a polyamorist to be a bigamist and vice versa. Bigamy is only at issue when someone chooses to be married to two people simultaneously. Marriage is a public institution. What one does within the confines of their marriage is private, but the fact that one is or is not married is part of the public record. (Somewhere on the planet, at least.) One cannot cling to their “right to privacy” as a means of escaping scrutiny (or penalty) when they’re multiply married.
If someone is polyamorous, that’s fine and dandy, it’s when they want public sanction of two (or more) marriages that problems arise, for obvious reasons – typically (though not always) because bigamous marriages involve a level of deceit which, when discovered, causes familial relationships to fall into states of considerable disarray, which is not in society’s greater interest. As such, we retain bigamy laws and will retain them, even if marriage is redefined and more than two parties can be legally considered a part of a legal marriage. Even at that point, one couldn’t enter into an additional marriage without the consent of their first spouse.
As for adultery, I agree that it should not be a part of criminal law, but for obvious reasons it must remain an actionable injury as a part of civil (family) law.
Well, DCU the comments may not be anti-gay on their face, but in context (they were specifically discussing the Texas case current being heard by SCOTUS) it’s not hard to see an underlying current of bias – especially in view of Santorum being an extremely conservative Catholic. (That’s not a slam against Santorum nor conservative faith groups with which he has aligned himself, simply a statement.)
However, I think that both and Santorum overreach thusly – the courts have long held that private behaviors can be constitutionally proscribed if there are societal aims which are furthered by the prohibitions.
While this case may, in practice, end up protecting all manner of behavior based upon the right to privacy, it would take further challenges to be able to apply this decision to cases which are not specifically on point – in other words, cases where the criminal charges are directly related to sodomy laws.
Apples are not oranges, a gay relationship between two adults is not the same as adultery or a bigamist’s second or third marriage because of the risk of harm to other parties (and destruction of family units) inherent in both of those acts. Nor is it the same as an incestual relationship between two adults, which has always been a legal taboo because of the risk to potential children. (The whole consanguinity birth defect thing.)
There is no reason to suggest that because the court recognizes that the private sexual relations of two gay adults poses no harm to any other parties – absent other impediments to that relationship such as legal spouses in the picture – that it just throws open the doors for anybody to do any old thing any time they please with anyone that they please. Perhaps it will take further tangles with the courts or new legislation in some states to make this clear, but only someone who presumes that every judge in the country would rely the loosest interpretation of a precedent in this case when making other decisions could draw the sky-is-falling conclusion that Santorum has.
Furthermore all of this is presuming that the grounds by which the SCOTUS would decide that the Texas law is unconstitutional would be that it is violative of the right to privacy. The SCOTUS may go that way, but they could also accept the other argument offered, that the law cannot stand because it violates equal protection – rejecting the privacy issue, or not addressing it at all. If SCOTUS goes that way (a long shot, but possible depending on which alliance gets the majority) then this entire argument is moot on its face.
On a personal note, this whole situation saddens me. When my husband and I lived in PA, we supported Santorum and both worked on his campaign. (Mr. tlw in a paid staff capacity.) At that time, he was clearly not in favor of gay marriage (in line with the GOP party line of the time) but he never publicly espoused the types of “gays are dangerous to the moral fabric of our society” type of view that seems to be part and parcel of the argument he’s just put forth. It’s frustrating beyond words.
Dewey, I think a previous question bears answering - Does the Constitution allow for consensual, private, heterosexual sex?. If it does, how can consensual, private, homosexual sex be disallowed? If it doesn’t, what ground do these laws stand on?
On the one hand, Santorum makes me glad I moved out of Pennsylvania. On the other hand, go Governor Rendell!
No, it wasn’t. I tracks a perfectly legitimate constitutional argument. Call that “parsing the legal distinctions” if you want. The fact that you have to bring in additional evidence is proof that the comment “by itself” is fine – it only becomes not-fine when the additional evidence is considered. **
I fail utterly to see how I was “wrong.” I said, repeatedly, that Santorum may well be a rabid homophobe, and that my only point was that his comment, standing alone, was not sufficient to hang that label on him. I never once said Santorum wasn’t a homophobe; I only said the meager evidence provided in the OP was insufficient to reach that conclusion.
Not true. Bigamy is marriage to a second spouse while already legally married to another. It is quite independent of any of the involved spouses’ knowledge of the other marriage. When members of Utah’s Mormon splinter sects are prosecuted for multiple wives, the charge is bigamy, even though all of the wives are perfectly aware of one another (indeed, they all live together).
I assume by “allow” you mean “protect.” Clearly the Constitution “allows” for a great many things, in the sense that it does not forbid them. What activities it “protects” from encroachment by Congress and the states is a much narrower question.
On a personal-viewpoint level, I think the Supreme Court’s privacy rulings are a crock of shit, even if I agree with the results as a policy matter. The Constitution is silent on issues like birth control, abortion, and yes, permissible sexual conduct, and it is intellectually dishonest to pretend it isn’t.
On a “what the courts have said” level, the Court’s rulings on privacy in the sexual arena have explicitly been limited to protecting procreative choices (e.g., birth control and abortion). That would arguably extend to vaginal sexual intercourse as a procreative choice. It arguably would not extend to other heterosexual sexual activities. Indeed, the statute upheld in Bowers did not make gender distinctions – sodomy was illegal regardless of whether the anus penetrated was that of a man or a woman.
On a “what will the courts actually do” level, they’ll probably overturn, not on any principled legal analysis (though they’ll certainly fake it well enough), but because they just don’t like the law. The courts have rarely let pesky things like what the Constitution actually says interfere with their desire to shape the world in a manner they favor.
This is an interesting question. It seems to me that, if the Supreme Court says that the right to make procreation decisions is protected, then surely the right of two fertile heterosexual people to have sex is somewhat protected.
But if that’s the case, do we find that once a member of a couple is no longer fertile, their right to have sex is no longer constitutionally protected? What if one member of a couple is sterile – can the state legitimately prohibit them from having consensual heterosexual sex, whereas they cannot prevent a fertile person from the same sex?
I’d think you’d run into equal protection problems there: if a fertile couple’s right to have sex is protected, then equal protection would suggest than an infertile couple’s right to have sex is also protected, wouldn’t it?
And if so, wouldn’t that same principle apply to most consensual sexual activity between adults?
Some incest, of course, could be prohibited based on potential harm to potential children – but you couldn’t prohibit incest between (ick ick ick) two sisters, for example, based on that logic.
And presumably you could prohibit adultery by arguing that it causes real harm to the spouse who is cheated on. That might be a poor argument, but at least there’s enough harm there to hang your hat on.
But I’m not seeing how a court can protect reproductive decisions, not protect gay sex, and not run afoul of equal protection clauses.
Would you please explain how “…it destroys the basic unit of our society because it condones behavior that’s antithetical to strong healthy families…” and “[d]oes that undermine the fabric of our society? I would argue yes, it does…” and “[w]hether it’s polygamy, whether it’s adultery, where it’s sodomy, all of those things, are antithetical to a healthy, stable, traditional family.” could possibly be interpreted by any reasonable person as anything other than anti-gay? How can you possibly think that saying that constitutionally protecting the right of gay people to have private consensual sex is antithetical to healthy families and undermining of society as a whole is a pro-gay or a gay-neutral position? Are you in fact ingesting large quantities of crack right now?
In happier news, some members of the GOP are finally starting to repudiate Senator Asshat.
Timidly phrased, but in the face of the deafening silence from the White House and the actual support offered by other Republican leaders, at least it’s something even ifonly an attempt at damage control on behalf of the party as a whole.
Your need to lump in homosexuality with incest and bigamy make your arguments little different than those of the more anti-gay members of Congress as well as James Dobson, Pat Robertson, and Pat Buchanan.
Using those as a parallel, you cast aspersions about the legality as well as the morality of being homosexual.
To deny that is disingenuous, but I am quite sure that you will claim it is not so and I am just twisting your words, clear though they are.
The slippery slope argument is just a tool to deny gays and lesbians their rights and equality under the law.
Would that you had seen the error of your ways.
Law has NO PLACE saying who can and who cannot get married,.
None.
There is no place for laws that “protect marriage.”
The law has no place governing reproductive rights.
Law and justice are two different things. The law has been abused and taken as a tool of those who feel they have the divine right to decide what is good for all based on their narrow views.
Law is a whore that has been used and put away wet.
I wonder what you gain from your position in this debate besides intellectual masturbation or just being a complete ass.
And yes, you are a moron. A person of intellect would look at the data presented to them and might see how they are wrong. You hold to your narrow position with the zeal of the newly converted.
sigh
That is not what I said.
You seem duty bound to parse Stantorum’s words to make what he said acceptable, and all dissenters are wrong.
I said tha as gobear lives in the midst of the flurry of politics, it is covered more comprehensively there than just about any other place in the United States.
Nope; polygamy is just having more than one marriage. (Polygyny and polyandry may lead to harem situations, if they’re describing the entire situation rather than the attachments of a particular individual. A polygynous family situation would have one man with a harem of women; on the other hand, my husband is polygynous, as he has three partners, but our overall situation is not polygynous – each of the people he’s involved with has at least two partners, and most of us are polyandrous. )
Personally, I’m in favor of the legalisation of polygamy and the continuing illegalisation of bigamy, which I consider a form of fraud. Making marriage into a contract that can be adopted by a variety of different people with different preferred family structures doesn’t invalidate the meaningfulness of laws forbidding signing that contract under false pretences.
Kindly show me where in the OP those remarks appear. They do not.
Calling Santorum a homophobe based exclusively on the quotation from the link provided by the OP, without more, was unwarranted. Calling him a homophobe based on other public statements he has made and actions he has taken may in fact be warranted. Why this is a difficult distinction for you to understand is quite puzzling.
Sweetie, do try to pay attention. If the constitution protects a broad right for adults to engage in whatever consensual sexual acts they choose, then the constitution necessarily protects adult incest right alongside homosexuality. Recognizing that fact is not a “lumping in” of homosexuality with incest; it is merely following through the argument presented to its logical conclusion.
Let me make this as simple as I can for you: Heterosexual vaginal intercourse, heterosexual anal and oral intercourse, homosexual anal and oral intercourse, incest, bondage, S&M, teabagging, Dirty Sanchezes, and any number of other sexual practices all fall into the category of “consensual adult sexual acts.” If the constitution protects all “consensual adult sexual acts,” then it protects all the activities that term describes, from the most boring missionary-position romp to the most lavish Roman-style orgies. Needless to say, pointing out that fact is not a comparison of missionary sex with Roman orgies. Understand? **
Please re-read what I wrote about precedent and the way it operates in our legal system.
Better yet, please explain on what principled basis the court could say adult homosexual sex is protected by the constitution, but adult incest is not. **
As a policy matter, I tend to agree. Texas should repeal it’s law as soon as possible. But that doesn’t make the law unconstitutional. **
I’m curious as to what “position in the debate” you are ascribing to me. I’m opposed to the Texas law as a matter of policy; I just don’t see a constitutional basis for overturning it. Nor am I a huge fan of Santorum; I just think the original quotation was, standing alone, not particularly terrible. If the OP wanted to level a serious charge of homophobia, he chose a lousy quote with which to do it, particularly given that there are apparently a wealth of other nasty things Santorum has said from which he could have chosen. **
Again, I really am curious: what “position” do you think I’m defending, anyway? My point was a fairly narrow one about the need for adequate evidence, yet for some reason you keep trying to expand it into a defense of Santorum and homophobia. It’s frankly quite bizzare. **
Really?
You wrote: “gobear lives in that area, you dolt. I think he, better than most, would know what is going down as he is innundated with that information constantly.” You further wrote: “I lived in that area in 1996. I know what it is like and how political news becomes as common as the air one breathes.”
How on earth can that be interpreted as anything but a suggestion that gobear is in a better position to judge this issue because he “lives in the area.”?
I stand by my position: I do not accept “he’s evil, trust me” as an argument, from gobear or anyone else, no matter how close they live to the subject of the accusation. It was perfectly acceptable for me to suggest that stronger evidence than the quote in the OP and gobear’s “trust me” statement was needed. I further note that such additional evidence has since been provided.
**
I have no dog in this hunt. Indeed, I explicitly noted that Santorum may in fact be a raging homophobe in most of my posts. My only point was that the OP’s quote, standing alone, was not damning. **
Does gobear live in Pennsylvania (as your earlier post implied) or in DC (as this post implies)? I don’t know, nor do I care. A person’s physical location does not absolve them of the necessity of supporting their accusations with credible evidence.
(1) cjhoworth notes that Senator Santorum makes a statement about homosexuality. cjhoworth, being a constiuent of the Senator, is familiar with his past words, voting records, and political intiatives and thus applies this background knowledge, known as context, to make an interpretation of the Senator’s statement.
(2) DCU, applying his tediously deconstructionist mind, takes issue with this interpretation, saying that such an inference is completely inappropriate because, despite knowing his past record and remarks, cjhoworth should take every word of the Senator’s statement at face value, completely ignoring context altogether (known as operating in a vacuum).
(3) Turns out, the rest of the board discovers that in the very same statement, the Senator says an enormous amount of other things that are not only more obviously inflammatory, but also substantiate the interpretation sjhoworth originally made.
(4) DCU (covering ears): “La la la la la la It wasn’t in the OP la la la la that’s all I’m talking about la la la la la I can’t hear you la la la la!”
> If the constitutional right to privacy encompasses all consensual adult relations, then it necessarily encompasses the things Santorum mentions. Pointing that out ought not get the homophobe label hung around your neck.
Taking your argument at face value, what you can safely infer from Santorum’s remarks that he thinks sex between consenting adults should be legally regulated for the sake of “strengthening” the family.
Ignoring for a moment the huge hole in his logic that unregulated sex between adults weakens of the family, I would say that drawing a line at homosexual relationships IS homophobic. It’s basically saying “the sexual practices in your relationships cannot be protected since it might lead to protecting other sexual practices, therefore you cannot practice them.” If that’s the crux of his argument, then he’s basically willing to deny a whole class of people the right to privacy based on sexual orientation. And that in and of itself IS homophobic.
)