Well…
I recognize, as did the writer above, that substantive due process as a method of analysis has created much of our current case law. I do not endorse throwing out every instance of the process; I respect the concept of stare decisis. But I argue that the mistake should stop.
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No argument with #1.
#2 - there is a compelling reason for the people of Louisiana to change – there is now a state recognizing marriages contrary to Louisiana’s public policy.
Thank you.
You’re conflating a discussion of where we should end up with a discussion of how best to reach that point.
Where should we end up? Do you, or do you not, believe that we should end up with exactly equal rights for SSC and ASC?
Given that I’m being attacked by folks on both sides of the issue now, I know that, though I may not be right, at least I can’t fairly be characterized as absolutist :).
Daniel
Pretty much. But I’ll play your silly game by your silly rules. Tell you what. I don’t do much besides occasionally breeze through GD & shudder, if you can show me where you have said “You were right, I was wrong,” about any issue (not about how you worded a specific post, wrong about the actual issue against which you were arguing), then I will fully apologize and withdraw that assertion. Okay?
Maureen, have you read the last two pages of this thread? I don’t recall ever seeing as specific and unconditional a concession of an argument as Bricker has made here, anywhere else on the Straight Dope.
Daniel
Actually, Daniel, catching up with it now. Was gone for about 4 days.
Thank you.
Rick, I apologize, you do admit when you are wrong.
No, no, no. Not at all. As far as I’m concerned (SolGrundy, not the gay agenda or anyone else), that’s the least important part. You know, a lot of gay people are already having sex with each other, even though they’re not married. So are a lot of straight people.
We keep hearing that “marriage” has so many connotations for people that are worth defending, and I’m saying yes, that’s exactly the point. Gay couples who are looking to get married want all those connotations. It’s about love, commitment, honor, devotion, mutual respect, and societal recognition of that relationship as valid and lasting.
When you look at a straight married couple, you don’t immediately think, “Oh yeah, they’re totally doing it.” Or “It’s all just about the sex with them.” You think, “they’re married to each other.” You have a notion of a family. When you insist that gay couples call themselves a “civil union” or “domestic partnership,” you’re just saying that they live together and that they’re most likely screwing each other, but they’re not really married in a real sense.
No problem - although I must admit to breaking into a bit of a wry grin when your accusation of inflexibility came in the very thread, and within fifteen posts of, my concession on this issue.
This is a nitpick, pure and simple, but I can see a real melee breaking out if it’s not made – the formulation which Rick alludes to permits them to not recognize acts that violate their “legitimate public policy.” The distinction is important because a state may not define as public policy something contrary to constitutional protections or court decisions where there is competent jurisdiction. For example, what the people of 1965 Mississippi may have felt, and had their legislators enact as public policy, regarding miscegenation, was no longer a legitimate ground for rejecting recognition of mixed-race marriages after Loving two years later.
I think Romer v. Evans may be even more on point – but I’d prefer that Rick or Dewey speak to its relevance to the issue at hand; I’m prejudiced.
I had it comin.
I’m still interested in your position on Roe v. Wade, but it can wait for another thread.
Correct.
For those not familiar with the case Polycarp mentions, in 1992 Colorado voters adopted an amendment to the state constitution that purported to remove any “protected status” from gays or lesbians. This was apprently a reaction to the cities of Aspen and Boulder, among others, passing city ordinances that specifically forbid discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and a variety of other areas. The voters of Colorado sought to reverse these ordinances by amending the state constitution to explicitly forbid any “protected status” for gays or lesbians, and remove from their reach any remedy at law wherein they might claim minority status, quota preference, protected status or discrimination.
The Colorado Supreme Court (upheld by the US Supreme Court) enjoined the enforcement of the amendment. They found that the language of the amendment went beyond merely repealing the targeted ordinances. The amendment, they found, imposed a special disability upon gays and lesbians, and may well have removed from gays and lesbians even ordinary protection from generic laws and policies that forbid arbitrary and invidious discrimination in governmental (and private) dealings.
In a discussion of recognition of same-sex marriage by a state that has found the same contrary to their own public policy, I question to what extent Romer would control. The Supreme Court found in Romer that the Colorado law failed the “impossible to fail” rational basis test, pointing out that its breadth was so wide-reaching that it must have been motivated by animosity toward the gays and lesbians, and for that reason, it failed to advance a rational interest. A state prohibition against recognition of same-sex marriage, on the contrary, is a relatively narrowly-tailored rule approved in dicta as recently as last year by the Supreme Court itself.
On the other hand, Romer was decided the way it was even though, at the time, Bowers v. Hardwick was good law. Colorado could not pass an amendment that put homosexuals at civil legal disadvantage, but it could criminalize the very conduct that was strongly associated with being a male homosexual? Romer is on more solid ground now, with the repeal of Bowers, than it was when it was decided. And I would contend that Romer enunciated a new principle in law, and I’m not a fan of it for that reason.
Thanks, Rick. However, I wasn’t bringing it up with reference to SSM specifically, but on the question of “legitimate public policy” – it being the leading opinion where a public policy was not only statutorily enacted but placed into a state constitution, and was found to be contrary to the U.S. Constitution as advancing a definitively illegitimate public policy – as you said, it failed the “impossible to fail” test for a legitimate public purpose.
However, before you’re set upon by a horde of savage gay people similar to the one Jerry Falwell claims to have encountered (!;)), let me point out that sexual activity is not the critical point of being gay, any more than your marriage or mine reduces to its sexual aspect.
A gay couple, whether or not married, is such because they enjoy being with each other in a romantic sort of sense, enjoy doing activities together even of the platonic sort, have a desire to care for each other and commit to each other, exactly, insofar as I can determine, as heterosexual couples do, and court each other in much the same ways, ceteris paribus, as we do.
A gay individual defines himself as gay not because he is engaged in gay sex, not because he desires gay sex, but because the persons to whom he is attracted in eros love – note that that word means far more than “sexual” – are of the same sex as himself. (Obviously, there should have been a herd of "or her"s in that to reference lesbians as well – but in this particular case, it read much clearer with them omitted, and the "he"s and "him"s taken as common gender.)
Interesting. Would you mind expanding on this? As an amateur interested in law rather than a professional, I would offer the following thoughts. It seems to me that Bowers v. Hardwick was not good law for due process and/or equal protection cases. The dissent is compelling in pointing out that the majority certainly appears to have focused solely on homosexual sodomy ignoring the fact that the law in question made no such distinction. Thus, the Court mistakenly refuted an equal protection argument that wasn’t relevant. Bowers was properly a privacy case and thus shouldn’t apply to a equal protection case. So, I guess I see it less as the Court contradicting Bowers as ignoring it as not applicable.
Just a moment. This may have convinced Bricker, but it doesn’t convince me. Though you may console yourself with the fact that you have rekindled my addiction to debating this issue, which I had had well under control for the better part of a year, as well as enticed me to post in the Pit, which I rarely do.
I think you are making a series of flawed analogies here. I’ll take one: “web”. I don’t think that expanding the definition of the word “web” in this case is analagous to expanding the definition of the word “marriage” as you would like. I take this position for a reason that might seem to be counter-intuitive: the difference between a spider web and the world wide web is far, far greater than the difference between a same-sex relationship and an opposite-sex relationship.
Consider: If I say to you that I was up late last night “surfing the web”, I have not given you the impression (unless you are from Mars) that I was literally riding an actual surfboard on top of an oversized spider web. Therefore the expansion of the definition of the word “web” in this case causes no confusions as to meaning.
However, if the word marriage is expanded to include same-sex unions, then a level of meaning will be stripped from the phrase, “I’m married”. Right now, if I use that phrase, it conveys the information that I am in a relationship with a member of the opposite sex, and most likely heterosexual. If the definition is expanded as you want it to be, then it will no longer convey that information, and a little bit of the diversity and richness of our language will have been snuffed out.
Now, as I say this, bear in mind that I agree with what Bricker said before his conversion, that if this were to happen, it would not be like the sky was falling. I certainly don’t think it would be the end of the world if the word “marriage” were redefined the way you want it to be. But then, I also don’t think it would be the end of the world if we were to ban one book. In fact, if the book were by Michael Moore, I think the world would be better off. If you are of a different political persuasion than I am, substitute another name there. Ann Coulter. Rush Limbaugh. Bill O’Reilly. Whoever.
But I assume that regardless of which author it was, you would join me in opposing the banning of that book, not for the author’s sake, but for the sake of principle. It is for the sake of principle that I oppose redefining words in ways that will strip them of their ability to effectively communicate information. Communicating information is the reason we have words.
And it used to be that if you said you were married, it conveyed the information that you were married to one person of the opposite sex and the same race.
That turned out not to be a relevant distinction for the word to include. Neither is gender.
Oh, well, principle. Of course, the principle that free speech is invaluable is somewhat different to the principle that words shall always mean the same thing, is it not? You seem to be implying that the expansion of marriage is the thin end of some peculiar wedge, whereby we’ll shortly be reduced to speaking German, or something.
The word “marriage” is not stripped of its ability to communicate meaning by the inclusion of gay couples; it just means something slightly different (to my mind, it is the fundamental core of its meaning which would remain). Even if one did accept your contention that the language would somehow lose some of its richness (which I don’t), are you then contending that preservation of a rather nebulous property of an ever-evolving language is more important than true equality?
Not true, or at least not the whole truth. Marriage has always meant the union of two human beings. Marriage between black people and white people was prohibited in the old south because black people were not considered to be fully human. Interracial marriage was not forbidden. A white man could marry a woman who was Asian, or Latin American, or Native American.
Slaves were allowed to “marry” each other, but this was a corruption of the language, a minor sin to go along with the major sin of slavery. A “marriage” between two individuals who could not legally withhold their consent if their master ordered them to do so, or for that matter if their master decided to split them up, was not a real marriage, even if the law recognized it as such.
The kernel of truth in your assertion is that the statement by a white man that “I’m married” did indeed used to convey the information that he was most likely married to a white woman, and that the ability of the word “marriage” to convey that he conformed to the prevailing standards of racial bigotry has now been lost. But then, the prevailing standard of racial bigotry has itself been lost, and so we see that the meaning of the word changed along with a change in actual conditions.
Now, having read that you might be thinking: If it’s ok for the definition to change when people become less bigoted against black people, why is it not also ok when they become less bigoted against gay people? Especially given what you said:
Back when my addiction was raging I argued against this point at length. If people start posting to this thread again, I’ll dig up the link, even though that will put the monkey back on my back for sure. But to put it succinctly, gender does matter to the overwhelming majority of us, when it comes to finding someone to have an intimate relationship with, in a way that race does not. Take yourself, for example. As a gay man, you want to have an intimate relationship only with another man. No woman will do, no matter how many fine qualities she has. Does that mean you are bigoted against women? Of course not.
Now, consider: A white man might rule out ever marrying a black woman because he is bigoted against black people. If it happens that he grows as a person and becomes less bigoted, he might then become open to the idea of marrying a black woman. Now, a straight man who is bigoted against gay people certainly doesn’t want to marry another man. And if he should also happen to grow as a person and cease to be a bigot, he still won’t want to marry another man, because that’s just what being a heterosexual means.
Do you mean legal equality? If so, no. The state of affairs I favor would be the one elucidated elsewhere in this thread by Bricker and others, in which the state would only sanction “civil unions”, and would take no position on whether or not they qualified as marriages.