True. So best to start getting things sorted now, rather than let the confusing patchwork of contradictory status quos continue.
Are you familiar with the logical fallacy Appeal to tradition? Because most of your argument seems to come down to it.
Not only does he fall back on the same arguments, jtgain even uses the same curious terminology that bigots of a previous era used to avoid actually saying the word “slavery”.
Bigotry really doesn’t change much over the years…
{Hypothetical case of a same-sex couple married in one state, not married in another, one partner gets married to someone else in that second state, etc.}
This is an argument for the “full faith and credit” clause, and to oppose a patchwork quilt of different rules and regulations in the several states. Such nightmares could only happen when there is no uniform rule in all the states.
We probably pretty much all agree here that such nightmare scenarios are bad, and regulations should not permit them to happen. Throwing the definition of marriage back to the states is what causes such nightmares. A universal recognition of marriage rights will prevent such incidents.
Now: can this kind of reasoning show whether recognition of same-sex marriages – or a ban on them – will be more effective in avoiding these kinds of nightmare situations? Why would a blanket ban be better than a blanket acceptance?
Or, if we let each state regulate marriage as it sees fit, there is no confusing patchwork.
Also, it is not an appeal to tradition. It is the belief that such ideas related to marriage continue in force to this day.
Really? This lazy “argument” in the form of name calling again? I would expect such juvenile behavior on Yahoo! Answers, but in a board committed to fighting ignorance, posters should bring their A-game, or so I’ve been told.
Just because slave owners and Jim Crow proponents used the phrases “domestic institutions” and “states rights” as a fig leaf to their onerous practices does not mean that states don’t have legitimate powers and that the regulation of domestic relations aren’t part of the purview of individual states; nor does that mean that those phrases are forever tainted. I’ll use different words that mean exactly the same thing if it makes you happy.
I’m sure that George Wallace took a healthy dump the morning before he stood in the schoolhouse door. If you did the same thing, then you must be a closet segregationist.
How do you figure that? I could be married in some states but not others, and that’s not a confusing patchwork?
In the real world, this does not seem to have yet occurred, (or we would have heard of it by now). Making the definition of marriage uniform for the nation will reduce the chances of this happening–and the sooner it happens the less likely your scenario can occur.
= = =
And I have no idea how you can claim that
Each state regulating marriage as it sees fit is pretty much the best exemplar of “patchwork” regulations.
ENOUGH with the accusations of bigotry!
They serve no purpose in this discussion except to try to demonize one’s opponents.
Unless one refers to a specific, non-SDMB member who has expressed explicit bigotry regarding the topic, the next use of the words bigot, bigotry, or similar expressions will get a Warning.
Figure out a way to discuss the matter on its merits without resorting to insults.
[ /Moderating ]
The judge just stayed her decision for 14 days or until February 9th to allow an appeal to the Circuit Court and beyond if necessary. The FL case went the same way and they stay was allowed to expire. I expect the same thing to happen here.
It’s not that they have to show irreparable harm from gay marriage. It’s that they have to show irreparable harm from being denied a stay. And there is one (possibly) irreparable harm at issue: if the state ultimately prevails on appeal, it has a bunch of same-sex marriages that do not fit into its legal framework. The state then faces a frankly unpalatable choice of treating those marriages as null and void - though they were legal when celebrated - or recognizing rights for a very small group of citizens that others don’t have.
They could of course avoid this issue entirely by just recognizing gay marriage. But you don’t get to say, “well, none of this would be a problem if they did what we wanted.” That’s why the issue is litigated in the first place.
Having said all that, I don’t see any reason to grant a stay in these cases where (1) all the facts are stipulated, and (2) the appellate court has already heard and decided the identical issue. If there were substantive differences in the way Florida and Alabama treated marriage, or the plaintiffs were not similarly situated, then I would say Alabama should have the chance to argue the issue itself. But I’m pretty sure there aren’t, so I don’t.
A patchwork is not a patchwork, and an appeal to traditional ideas is not an appeal to tradition.
Rarely does one see such undisguised examples of doublethink.
Since you already did precisely that twice in the previously quoted portion of your post, and it evidently did not make anybody any happier, why do you think that third time will be the charm?
Well, the states are also arguing that their interest in two-parent families is why they must be allowed to ensure that same-sex couples can’t jointly adopt, ensuring that the children in question will have only one legal parent. So there’s that.
It was an easier sell in the days where same-sex marriage wasn’t legal anywhere, because then the costs and benefits were all hypothetical. But now it’s increasingly a matter of asking actual people to sacrifice rights that they would have had in the next state over, and which would be granted as a matter of course for an identically situated opposite-sex couple, for the sake of someone else’s principles in the abstract.
Great post.
As for the cases that SCOTUS will hear, they are limiting the arguments to 14th Amendment issues as opposed to 10th. My limited understanding of this tells me that they don’t think that this is a States Rights thing but a Civil Rights thing so the whole argument that States have the right to regulate marriage being the main issue isn’t accurate anyway. Is this correct?
He’s also argued that gay marriage is harmful because it does harm.
If this is the caliber of lawyers defending SSM bans, this case should be a slam-dunk.
I favor adoption of same-sex marriage.
But I cannot stand it when people arguing my side of an issue do so incompetently.
From Appeal to Tradition:
In this matter, the law recognizes rights that “are deeply rooted in our nation’s history and tradition.” (See, e.g., Washington v. Glucksberg, 521 U.S. 702 (1997)). Therefore, the fallacy “Appeal to Tradition,” is not applicable here, because, like the wine example cited above, in legal analysis the presence of tradition IS relevant.
There are plenty of strong, CORRECT arguments that weigh against same-sex marriage bans, most notably laid out in Windsor.
“Appeal to Tradition,” present as a fallacy, is not a viable argument.
Sounds like a great way to justify bigotry.
Consider Nizkor’s second example of appeal to tradition:
jtgain’s appeal to tradition is far more similar to this example than it is to a suggestion that wines improve in flavor as they age. He is indeed committing the fallacious version of the argument.
To the extent that the law suggests the way things have always been done has some sort of inherent superiority to a new way, by virtue of having been done this way for a long time, the law itself partakes of this fallacy.
While maintaining that a lot of your posts on the subject are an appeal to tradition fallacy, this is actually an interesting hypo, without an unambiguous answer (thus interesting). Here’s my answer:
The law should serve citizens, respecting to the extent possible their freedom to make choices and to live by their choices. In this case. the couple clearly intended to separate in 2008 and behaved as though they’d separated. At this point, the best way to go forward seems to me to write a law that allows parties in this specific situation (married legally in a state that recognized SSM, divorced informally in a state that didn’t recognize them) to obtain a retroactive divorce dating back to evidence of their informal separation; that marriage that was no recognized for so long would, according to this retroactive divorce, continue not to be recognized. In the event that parties dispute whether or when such a separation occurred, a judge would help sort out the details, as happens in other difficult divorce cases.
You’re right that there are a few weird wrinkles that’ll happen as we transition to full equality of marriage. But they’re going to be very rare, and laws to acknowledge them are certainly possible.
Sure. Another example is that SSI is trying to claim that they overpaid benefits for people in SSM because after Windsor SSI refused to recalculate the incomes for married SSI recipients if the marriages were same sex. Even when those recipients asked for recalculations.
SSI: Here’s your money.
Recipients: I’m married now, so you should be calculating including my spouse’s income.
SSI: Don’t worry about it! Here’s your money.
Recipients: Okay. It was going to hurt to get that cut in payments.
SSI (a year later): We overpaid you. You’re actually married, so we should have been calculating including your spouse’s income.
Recipients: But you said it was okay!
SSI: We’ll just cut your current benefits until we’ve recouped the amount. Have a nice day!
I wonder: are there any recorded cases of similar weirdness after Loving v. Virginia? I wonder whether the hypothetical could be rewritten with a mixed-race couple moving to a state that didn’t recognize their marriage and then separating.