My comments were limited to the absence of the logical fallacy.
You may be right. I will say that if an attorney is going to be working in a thread with lay people, using terms that have both a technical legal meaning and a colloquial meaning, and the attorney is using the term in its technical legal sense, it’d be helpful for the attorney to specify that sense and to define it. IF jtgain was using that technical legal meaning, then yes, it may be inappropriate to suggest he was fallaciously appealing to tradition; but I don’t think a lay person reading his comments could reasonably be expected to interpret them in that technical legal sense, and so calling it an “appeal to tradition” is only incompetent argumentation if the level of competency expected is a thorough knowledge of legal terminology.
And mine were to its presence in the vast number of posts jtgain has made on this subject in innumerable threads. The fact that the law is based on precedent, and precedent is ultimately rooted in tradition, is a moot point. It is not that he is appealing to tradition, it is the way in which he is invoking tradition in his arguments that strikes me as fallacious. Obviously, others disagree on that score.
Your argument has merit.
Of course, in another thread, you are passionately arguing for a meaning of “bigotry,” that is unique to you, and which you have acknowledged is unsupported by the dictionary. In other words, in that instance you seem comfortable with using a term in a way that’s contrary to the way other “lay people” use it, and defending your interpretation over the dictionary’s. Here, in contrast, you argue quite reasonably that an unusual definition should at least be highlighted and defined up front.
I think you’re correct here, and wrong there.
I think your analogy is poor, but explaining why necessarily involves bringing that argument over here, which is a terrible idea, so I’m just going to leave it at that. If you’ve got issues with my argument in that thread, I’d appreciate your addressing it there, not here.
These threads are confusing because arguments are crossed, but my use of the term “fundamental right” was one of art related to substantive due process. As Alito, Scalia, and Thomas have said, same sex marriage cannot qualify because it is not deeply rooted in this nation’s history and traditions, nor is it implicit in the concept of ordered liberty.
It is not a violation of the equal protection clause because sexual orientation has not been defined as a protected class, therefore rational basis applies. Protection of the public health, safety, and morality has historically been a rational basis for laws.
The definition of protected classes is always subject to change. Fifty years from now, having a particular gene or genetic trait may be protected, although it is not today.
Neither was miscegenation, but none of those worthies are willing to admit that their argument requires us to abandon Loving. So the “deep rooting” requirement seems a bit transitory, despite Scalia’s constant paeans to it.
I would agree that miscegenation is not deeply rooted in the nation’s history and traditions and would not find a fundamental right to miscegenation.
However, such laws were aimed at probably the highest protection class we have: race. In fact, THE class that the framers of the 14th amendment intended to protect. The purpose of the law was to promote the purity of the white race. It was not as simple as the defenders made it out to be: It treats everyone equal, whites were forbidden to marry blacks just the same as blacks to marry whites.
It did not treat both races equally as it was meant to further white supremacy.
This argument was mentioned in Loving, but the one that gets the most press is the “fundamental right to marry” which with I agree.
If one wonders why SSM wasn’t legalized with Loving and then finds the answer, the reason why those same arguments don’t apply to SSM become apparent.
Really? Somebody should have told Thomas Jefferson & Sally Hemings.
Or many others in our nations’ historical families.
Have you seen the Jefferson-Hemmings marriage license or even the banns from his church?
Regardless whether inter-racial sex occurred, (pretty much all sex occurs if the occasion presents itself), the anti-miscegenation laws proscribed inter-racial marriage.
Because in 1967 a prediliction to homosexuality was still considered to be a mental illness. That’s why SSM wasn’t legalized with Loving: Black people were understood to be a class (or a race) of people, while gay people were considered a defective version of people.
Fast forward to 2015. We no longer consider gay people to be a defective version of people, but just a variant. So the argument for excluding their entire class can no longer be made the same as it could in 1967, but must take new information into account, viz. gay people are just like regular people, only gay.
The word can mean either marriage or sexual relations. See, e.g., former Va Code § 258. I suspect jtgain meant “marriage.”
Hogwash. The Supreme Court was limited by their time, and was not culturally able to recognize gays as people. This was an era when sexual deviancy was a sign of moral degeneracy, not even a mental illness, but a personal evil.
We know better today, and can see that sexual preference is very closely akin to race in being an innate personal characteristic, fully worthy of constitutional protection under the 14th Amendment.
Don’t try to extrapolate the limitations of earlier eras into some kind of universal natural law.
Just like we have defenders of heterosexual-only marriage saying that it treats everyone equal; gay men are free to marry women just like heterosexual men are.
And if anti-miscegenation laws were meant to further white supremacy, anti-SSM laws are meant to favor heterosexual supremacy. There really is nothing you’re saying here that differentiates mixed-race marriage from same-sex marriage. The same ideas for and against all apply.
You’ve drawn a path in 45 years from “evil” to “protection under the 14th amendment.” You would have to agree that such a progress is a drastic one, and must also agree that not every single person in the country would agree with your subjective belief.
“We know better today” is a troubling phrase. Who is this “we,” kemosabe? Why does this “we” remove all discretion from the legislators/voters of over 30 states who have constitutional amendments banning SSM?
How does this new understanding work and where is the tipping point where all opposition becomes irrational? Is it when homosexuality was removed from the DSM? Is it when Hollywood began supporting gay rights? When some churches dropped their opposition to homosexuality? When the Democratic Party began to support SSM?
Who is this ruling elite caste who knows better than the peons who vote in elections and serve in state legislatures? If you applied your beliefs to other matters in society, you would have to agree that it is a dangerous proposition for representative democracy that certain things are no longer subject to democratic rule when a vague number of undefined things happen.
None of those have anything to do with the irrationality of the opposition. The opposition was always irrational. These are just indicators of recognition.
I slightly disagree. Reason can only work with the information it has. Fifty years ago, most non-experts had information from experts that homosexuality was a mental disorder, and so it’s not unreasonable for folks to trust those experts and to conclude taht granting marriage rights to gay folks was analogous to granting them to a washing-machine-lover. Today, of course, folks have more accurate information from experts, and so it’s totally unreasonable for them to make such an analogy.
The courts agree, and that’s what matters. The courts are recognizing that gays are a population needing protection.
Almost the whole of the scientific and medical communities.
For the same reason we overruled the legislators of several states who worked very hard to prevent blacks from voting. The laws are now seen as wrong.
There is no magical tipping point. Progress is gradual. There are still people who believe that mixed-race marriages are wrong. You never get total unanimity.
We, the people, who elect them.
Give me some examples.
The whole point of the existence of the Constitution is to set limits on democratic rule; otherwise, the “tyranny of the majority” would always be in control.
Exactly. Agreement. We can’t judge the legal minds of eras past too harshly, because they simply had no way of knowing what we know today. Progress has been made, and ignorance has been pushed back. This is the key rebuttal to an argument from tradition: we know better today.
The courts do not agree. The Sixth Circuit disagrees with you. The Supreme Court will rule this summer. This is what we are talking about.
What does that have to do with anything? So it is an inherited trait. Why does it follow that marriage must be recognized?
False equivalence. It’s on you to show why race is the same thing.
I’m not talking about total unanimity. Just the point where such opposition is no longer rational.
We the people passed DOMA and constitutional amendments in 30 plus states against SSM.
Yes, that is the point of the Constitution. Something we make up 225 years after it is written is pretty much the definition of something that wasn’t included.
Again, who is this “we”? It must be the elite because it is not the legislators or the voters of the states who have banned SSM, despite this ivory tower knowledge of who knows better.