No. If I were king then we’d strike “marriage” as a state-defined term in its entirety, giving us:
Section 12: Civil Unions. Civil unions are a familial union between any two people, regardless of sex. They bring with them the following collection of benefits and responsibilities… (followed by 12 pages of details.)
But that thousands of years of historical weight and tradition applies to opposite-sex unions, and the gay couple is not entitled to the term for this reason.
You can call yourself whatever you please. But there remains a valid distinction between the two entities – which is why, today, we have terms like “biological parent” to distinguish an adoptive parent from a natural parent. “Ward” and guardian" have meanings as well, referring to guardianship that is not solemnized by full and permanant custody.
And should an adoptive parent be upset that he can never be called a biological parent? I can well imagine he isn’t happy, and that his relationship with his adoptive child is not accorded the same term as used to describe the child’s relationship with the biological parent. My point is that SOME distinction between the two is necessary and proper, because the two relationships are NOT the same.
And it’s a good analogy: one is not “less than” the other. A biological parent may be loved and revered, and the adoption happened because the parent died. Or the biological parent may have given up the child at birth, and be completely irrelevant to the child’s upbringing, memories, and love.
We’re getting into semantics here, and awfully nitpicky; let me quote some of the important bits from my posts:
Passion is part of the equation, but it’s not enough. Sometimes shouting gets you somewhere, but it should be part of a strategy, not in lieu of one.
I suspect we agree on the substance, and are quibbling over word choice. If you go back and note the post I was responding to with my analogy, my point may be clearer. (It was basically saying, “We don’t need to be nice, because we’re right.”)
Obviously it’s a logical fallacy; at the same time, I’d hardly say that logic is the primary way decisions get made in our society. An appeal to emotion is pretty innocuous in the grand scheme of things, and until the anti-equality forces stop using it, it’d be the height of foolishness for pro-equality folks to give up such an effective tool.
The Bricker Plan has even less chance of passage than getting Marriage opened to homosexuals. I recognize that your plan would be equality, and as gobear has said many times, you can call it Shirley as long as it gets the legal equality; but it’s not going to happen. The term means too much to too many people. All the heterosexuals who are married would resent that what they have is not called “marriage” any more. That would cause a backlash that dwarfs the one we’re seeing now.
But the fundamental bigotry in your position is that you’d be willing to give up the term marriage in a legal sense rather than have homosexuals sully it. You want the term severed from it’s legal foundations, which are older than the religious, so that you can smugly sit back and click your tongue at the homos and say “they may be committed, but they sure aren’t married”.
Marriage has meant many things throughout history. Solomon and his many wives, the political marriage of two royal families or the simple union of Mr and Mrs Bricker are all marriages; but it’s absurd to suggest they’re all the same thing. If the word is flexible enough to apply to each of those cases, why can’t it apply to MrVisible and the Visiboyfriend?
There is a very real and very meaningful distinction between the natural role of the courts in protecting rights and the activities which I have labelled “judicial activism.” The latter are the result of a method of analysis with which I am in sharp disagreement. They are NOT results-based. I have noted both hypothetical and actual cases where I’d be in favor of the results, but opposed to using this method of analysis to get to the result.
Now, I certainly acknowledge that my view is not universal. But neither is it fringe, or held in less than good faith.
I would argue that it is YOU, and others of your stripe, that accept judicial actions when you agree with the results, and reject then when unpalatable, that are acting disingenuously.
I hold that the PROCESS is as important as the results.
Because my plan has a low probability of success, you call upon me to renounce or revise it?
But if I point out to you that “marriage” has much less chance of passage than “civil union,” then… I should renounce or revise my support for civil unions.
Come on now. Dred Scott and *Plessy * were the results of process as well. I really don’t think you’re defending them, are you?
By being so unrealistic as not to deserve discussion, unlike biological vs. adoptive parents, a distinction which *is * real. Further, you may never have noticed, but it’s quite common for adoptive parents to be simply called “parents”, without necessitating inquiries into details - in fact, it’s considered *rude * to inquire. All you’ve done is to find a way to differentiate between “gay marriage / civil unions” and (implicitly) “normal” or “natural” marriages. In practice, the term “marriage” can be expected to take over, in the natural continuing evolution of the language. It already has done so in MA, and, I presume, in Canada - the Dutch Dopers will have to weigh in on their own language. Meanwhile, your view is already fading into the dustbin of history.
Can you not see that this view, if strictly applied, would prevent *any * progress of any kind from *ever * being made? If you allow exceptions to that rule, why not this one?
Your plan, while equitable, is never going to happen. You can keep thinking it’s a grand idea.
So you suggest we settle for Civil Unions which are similar but not quite equal to marriage, as matt_mcl and others have extensively shown. Why? Why should we settle for second best instead of fighting for true equality? Married people aren’t going to give up the term, and they shouldn’t have to. But our government should treat us all equally.
Regardless of your bias, though, you still haven’t answered the question about why marriage can refer to so many different relationships, as long as it’s one man and one (or more women in some cultures and in different times); but not when it’s two men or two women.
Oh yeah, you don’t want us homosexuals to be able to get “married” because it’s too special for us. We’re not really equal in your eyes.
Homebrew, I submit that even if there’s zero chance the Bricker plan will pass (and I obviously dispute that characterization), it’s still good to have it on the table.
When folks in favor of equality put it forward as an alternative, it becomes very clear that you’re not trying to legislate tolerance; you’re not trying to force people to approve of man-on-man action; you’re not trying to change their religion. You’re just trying to get legal rights.
Also, if you’re right, people will be a bit threatened by it–and they should be. “Not much fun,” you can say, “to feel like the state’s denying your love, is it?”
Having both proposals seriously on the table shows that you’re after justice, not legislated approval; and it shows people that by clinging too tightly to a state-mandated religious definition of marriage, they may end up losing the state definition altogether.
As I said, I’d be thrilled with either marriage’s extension to all adult consenting couples, or with the government’s abdication of the word entirely. I think that offering both as alternatives might stretch the debate, and make it clear that something has got to change.
It might also make it so that extending marriage to everyone becomes viewed as the “moderate” solution instead of an extreme solution, since it’s not (in many folks’ minds, apparently) as extreme as changing a word on a form.
[QUOTE=ElvisL1ves]
Come on now. Dred Scott and *Plessy * were the results of process as well. I really don’t think you’re defending them, are you?
This shows how uninformed you are. Dred Scott is probbaly the first case of substantive due process - the method of analysis I criticized - being used to create a “right” not found in the text of the law. I, quite consistently, deplore the PROCESS used in Dred Scott. You seemingly revere substantive due process – how do YOU feel about Dred Scott.
I’ll let the people of Lousians weigh in on this question now, and the people of the ten other states whose ballots will contain similar provisions November 2nd can answer at that time. However, I am willing to wager that their answer will not be one that relegates reserving marriage to opposite-sex couples “to the dustbin.”
Would you care to wager on the results?
Not at all. Progress can be made by coming up with new names for new things – in fact, it’s much better to do that than to force a rename of an existing concept into a new mold.
Right. So, in Bricker-world, the government doesn’t even know the word “marriage” exists. Fair enough. Hypothetical: you live in Bricker-world, where “marriage” is purely a cultural/religious term. And a church springs up which performs marriages on gay couples. And you happen to know such a couple. Do you refer to them as “married” “husbands”? Do you treat them and their relationship with the same respect you afford to straight married couples?
Hmmm… I suspect we have come to the crux of our disagreement, not to mention the crux of why so many people are so pissed of at you. So, why is a gay couple not entitled to the term and the historical weight and tradition? That weight and tradition is a set of rules and customs for dealing with two people who love each other and build lives together. It comes from generations of people living together and building lives together. So if two people of the same sex love each otehr and want to build a life together, why shouldn’t all that tradition and custom apply to them? I mean, it’s not like all gay people today have gay ancestors going back thousands of years, who just sat around being swishy rather than industriously forming family units and building up cultural rights for their descendants…
But there’s a positively HUGE difference between a situation in which biological and adoptive parents are both, in common usage, in day to day speech, in almost all situations, referred to as “parent”, “mother” and “father”, with the more precise and specific terms “biological parent”, “adoptive mother”, etc., reserved for only the rare situations in which the distinction is relevant, and a situation in which biological parents are referred to with the PowerWords “parent”, “mother” and “father”, and adoptive parents aren’t.
And that’s the key distinction. Think about the underlying linguistic and society assumptions being made if gay and straight unions are both referred to, in day to day discussion, as “marriages”, with the more precise terms “same-sex marriage” and “opposite-sex marriage” being reserved for the rare situations in which the distinction is relevant, as opposed to a system in which straight unions get to use the PowerWord “marriage”, and gay unions, while legally viewed as identical, are stuck using the lame term “civil union”.
Or to take a slightly different tack (still ignoring the legalistic aspect of this and focussing solely on the question of whether to use the word “marriage” to cover gay couples), let’s look at the pros and cons:
PRO: Because of the linguistic and cultural power of the word “marriage”, calling gay unions “marriages” will help convey, to gay and straight, bigot and non-bigot, the message that society accepts and values gay couples, and views their unions as being just as valid as straight unions
CON: It won’t be possible to distinguish between gay and straight unions (in the rare circumstances where it is necessary to do so) without using a bulky compound term like “gay marriage” and “straight marriage”.
Anyhow, while you’re here, I have a question for you about your constructionist legal views:
As far as I can tell, the only mention of race in the constitution that is relevant to the current discussion of rights is in the 15th amendment, which says that voting rights can not be based on race. There is (of course) no mention in the constitution itself of sexual orientation.
However, I strongly suspect that you would not claim that a state law which forbid gay people from voting based on their orientation was constitutional. Correct?
Therefore, we have, actually written into the constitution, the statement that discrimination in voting rights based on race is illegal. And your analysis of the constitution then leads you to believe that:
(a)Discrimination in voting rights based on sexual orientation is unconstitutional
(b)Discrimination in marriage based on race is unconstitutional
but NOT
(c)Discrimination in marriage based on sexual orientation is constitutional
Is this correct? And if so, how do you have arguments that get you to (a) and to (b) without also getting you to (c)?
To be blunt, who cares what the people of Lousiana say? Surely a strict constructionist such as yourself doesn’t really care about the popular opinion when it comes to determining what is and is not constitutional…
Honestly, and I’m trying not to sink to being rude to you, the fact that you keep bringing up the Louisiana vote smacks faintly of taunting… So lots of people in Louisiana agree with you. Many (although not necessarily all) of them are hateful bigots. Why is that something for you to be proud of?
If you’re truly committed to both equality under law and no judicial activism, you should be, at best, ambivalent about the Louisiana vote, because, while it is a reassertion of the abstract concepts of rule-by-law and states’-rights (which you like), it’s a kick in the crotch for the immediate concepts of equality and freedom (which you also like).
I offer iot not for the approval of the action, but to rebut the claim offered by Elvis1Lives that the opposite view is “…already fading into the dustbin of history.” In fact, it is not. How could I rebut that claim, except by offering current examples of defeats of same-sex marriage?
Well, which is it? Is the law “an ass”, or, at the Constitutional level, is it something grander, a codification of the values we wish to govern us? Does the Supreme Court, when ruling on a law, get to *avoid * interpreting its meaning in that light? No, that’s its job.
Do you call a court’s affirmation of a right you agree with a “proper result of process”, while its affirmation of a right you disagree with “judicial activism”? I really can’t see where you draw that distinction - and projection of your inconsistency onto others such as you’ve done here does not help your case.
I’ll note in passing that you’ve omitted any mention of *Plessy * - that’s all too typical of your level of intellectual honesty in ignoring inconvenient arguments and hoping they’ll be forgotten rather than acknowledging them. Don’t you see how much that gets you into trouble here? Would you care to clarify your position in apparent defense of *Plessy * or concede that process isn’t supreme? Actually, I’d prefer for you to state, after *several * requests now, to explain why the MA SJC ruling, previously quoted and cited, against a separate term for SSM is in error - on either legal or moral grounds, whichever you like, okay? But, since you haven’t, and, as is typical, have ignored it instead, I don’t think you can.
Are you prepared to wait a generation or three to pay off? If so, I’ll take that bet. Desegregation rulings in an earlier era were likewise met with the passage of reactionary laws that took years to overrule. Eventually it did happen, though, and in hindsight it was inevitable and proper. Those who opposed desegregation are now seen as having caused a great deal of pain for no good reason, and they don’t even get credit for having meant well. I trust the analogy is clear.
That from someone who wants to force a renaming of my marriage into the “new mold” of a civil union? Please. As you just said, it’s much better not to do that. Okay, how about coming up with a new name for “committed, loving relationship of two persons who happen to be homosexuals”, then? Something like “marriage”, perhaps? Once again, is there any reason you can offer for refusing to do so other than “that’s the way it’s always been”? After all these failed attempts, I’m sure you cannot.
Shodan has more than proven time and again that he couldn’t give less of a crap about the hardships gays face in this life due to systematic persecution and belittlement.
In fact, he probably wishes there was more of it. The suffering of others gives Shodan a stiffy.
Why? Other cultures, including the great nation to our north, have had no problem expanding the term marriage to include those other than Joe and Jane Hetero. Why do you seem to suppose that Americans are so easily confused and gender uncertain that different terms must be employed?
What purpose could that possibly serve except to set gay relationships apart as something not as good, not as equal, not as deserving?
The Supreme Court should not simply re-write law from scratch in the process of interpreting the law, no matter what “light” they are using. That’s what they did in Dred, which you hate, and Lawrence, which you support.
No, again! I have REPEATEDLY explained that if the court reaches a result I think is wise, but does so by using the “substantive due process” method of analysis, I am critical. And if the court reaches a result I think is unwise, but does so through ordinary statutory analysis, I may not applaud the result, but I will certainly accept it as legitimate.
Please repeat the paragraph above back to me in your own words, so that I know you have read and acknowledged it, because I am tired of repeating it.
Maybe it’s simply that you don’t understand the process. A court may say, “Here is our decision,” but they also explain the method by which they reached it. It is that method that is under discussion here.
Where have I EVER endorsed a court decision reached under substantive due process? If you agree that I have never done this, why would you say that I “call a court’s affirmation of a right (I) agree with a ‘proper result of process’?” I’ve never done that. Show me where I have. Or stop saying it.
What does Plessey prove? I am not contending that every court decision results in a just and fair result. If you were looking for an admission that Plessey produced a result untenable in today’s society, then I agree. Nor do I deny that other court cases may be found that also produced poor results.
It’s not in error legally. The Massachusetts Supreme Court is the highest authority on the law in Massachusetts. They have decided that the Massachusetts Constitution requires the recognition of same-sex marriage. There can be no debate on the legal correctness.
Nor is it morally in error. There is nothing immoral about recognizing same-sex unions as marriages.
In my view it is unwise. The decision created a new (or recognized for the first time) a right that is found nowhere else in the nation, and one without basis in our history. Because I believe that self-governance is important, I believe the people of Massachusetts, through their elected officials, should have been the ones to affirm this right. For example, the court could have stayed this ruling to permit an amendment to the constitution to pass, were the populace so advised.
But the entire process, including the onerous hoops to amending the state constitution, are ultimately a creature of the people of Massachusetts, and they retain the power to change both the specific ruling and the process, if they wish.
So ultimately, I have no real criticism of the Massachusetts decision, except the comment that I would not have exercised my discretion in the same way the judges there did. But they, not I, are the ones in charge.