What motivates people to vote other people's rights away

Great Debates
381

Yes, with the distinction that it’s not an unlimited right. I cannot marry a person already married. I can’t marry a close relative. It’s a right that’s defined and constrained by law.

Yes, if the marriage you seek is authorized by law, since the right flows form that law. There is no legal remedy if I wish to marry a person already married, or if I wish to marry my niece. If the marriage I seek is not authorized by law, then there is no right to that marriage, and no remedy for denial of it.

It depends on how much undigging I’m allowed to do here. In other words, clearly if I’m a judge facing a case right now, I will deny an EP claim to same-sex marriage, based on existing precedent. But you ask me to discard existing precedent on same-sex marriage and interpret the EP clause from scratch. BUt do I also dump all the existing EP framework, such as the distinction between strict scrutiny, rational basis, and intermediate scrutiny tests?

You already know that as a matter of personal preference I think it should be a right, one found by explicit law. But no, I don’t think it should derive from the text of the phrase “equal protection” if we start off tabula rasa with that phrase. On the other hand, if we erase all the existing same-sex marriage caselaw but keep everything else, then I might find that same-sex marriage cases needed to be evaluated under intermediate scrutiny, because they closely analogize to gender discrimination, and under intermediate scrutiny, I would invalidate a law that didn’t permit same-sex marriage.

See above. If I were starting EP jurisprudence on same-sex marriage from scratch, then I’d say intermediate scrutiny.

On the grounds that we have existing precedent that says it isn’t a viable federal EP claim.

And on the grounds that substantive change of this magnitude should come from the people, through the legislature, because that’s what it means to be self-governed.And being governed “By The People” is a greater good than same-sex marriage.

I said during the Prop 8 disaster that the best counter to this kind of hateful nonsense is to show loving couples, with kids. Seriously: not Hollywood-casted sex-appeal people, but ordinary, lumpy, normal-looking couples, with their kids, people who are willing to say: This is our family. Karin brought this drawing home from school yesterday. Emma was going to pick her up, but had to stop and get the car inspected, so I was the one to get her today. And Timmy just lost his first baby tooth. This is our family. It’s just like yours. Let us be married.

And a few older couples, been together forever. The important thing is to emphasize the normality and shy away from sex. Show love and caring, not lasciviousness. I am convinced that, at the heart of it, the objection to gay marriage is really the objection to gay sex. Effective ads would, in my view, emphasize the normal and loving couples aspect of the issue.

382

Has anyone considered the possibilty that opposing SSM while favoring civil unions is just a face-saving move? People can avoid admitting they were wrong to the ones they’ve so bitterly argued with. Over time, this also helps blur the distinctions of what the issue was actually about.

People used to make similar moves of the goal posts during the sixties. Have you ever noticed that all the real racists from that era are dead? The surviving ones were always open-minded and enlightened:

“I never had anything against (black people), I just didn’'t want the government forcing me to sit down and eat dinner with them”.

“I never opposed gay people having equal rights, I just was against SSM”.

Nobody likes to admit they were wrong, and homophobes are no exception. Their quibbles over the use of the word ‘marriage’ may just be attempts to look strong in the face of impending defeat, and ease the inevitable revisionism down the road. Go easy on them. :wink:

383

And this is where there are terribly misguided and mistaken. It’s clearly demonstrated in interracial marriage and it’s current accepted status, and remains just as true for SSM.

The mistake that leads to the regrettable and heinous act of denying other citizens equal rights seems to be the concept that expanding the definition , or changing it to include SS couples, or multiple partners, or whatever form that harms no one else, somehow diminishes the definition for them. It’s the emotional irrational fear based idea that if something different is also marriage then somehow their marriage is diminished or belittled in some way. It’s a falsehood. There are lots of variables among straight couples and each couple decides for themselves what gives value and meaning to their marriage. What the couple across the street may be doing cannot affect that. In order to protect themselves from this imagined threat they decide that their definition must be the only definition recognized. They convince themselves they have a right to defend themselves from this imagined threat and they are not really harming others by doing so. They’re wrong. They imagine themselves magnanimous and their opposition unreasonable by offering alternate words and legal arrangements, refusing to see that this is still a denial of equality, and they are still trying to defend an irrational and non existent threat. Because they can find many others who agree they can justify and refuse to see their moral crime. It’s the same thing that has happened in the fight for civil rights throughout history.

There is no rational , intelligent, fact based, reason to deny SS couples equal rights in marriage no matter how you try to rearrange and twist the semantics and eventually we will get there just as equality has eventually always won out in this country.

384

Bricker makes an excellent (even if a bit lawyery) point.
Anit-miscegeneation laws, and this bears repeating, are the exception rahter that the rule. And as much protesting as there can be about “history doesn’t count” it does, because among other things those same people will accept legal precedent.
Slippery slope isn’t a good argument, but not one that should be wholly ignored.

385

Left handed people use their left hand for things that mesh perfectly with what left hands were designed for. Homosexuals use parts of their bodies for things other than that which they were designed for.

386

Sighs. Asked and answered counsellor.

As I have said multiple times, the government can do things that include more than the original intention. If the link between, lets say, polygamy and abusive situations is seen as strong enough, the government is justified in legislation that sweeps in the non-abusive situation. Like with drug use - it is a lousy argument to say that you are the “good” heroin user who understands how to use it safely - the government sweeps all use in together.

Now, you may not agree with this argument, but I have put it forward multiple times in this thread. So just asking the same question as others again isn’t really going to change anything.

My person opinion would be to liberalize laws on both polygamy and incest. But I don’t see that happening. But then again, I would reduce the federal and state recognition of marriage down to almost zero, in which case it doesn’t really matter what is called a marriage in the end. Marriage at the moment brings with it a host of rights. The effect of permitting one man to share those with another man, rather than another woman is so minimal that, I believe, it can be classified as zero. The benefits of not discriminating against a significant group of the population are large. The effects of permitting those rights to be shared in a polygamous scenario are much greater. Unlike SSM, it requires a major restructuring of the law - I have already said how I would like to see it restructured (eliminate any legal benefits to marriage), but if we are going to keep benefits, it has to be determined how they would apply in a polygamous situation.

The “discrimination” against polygamists is qualitatively different as well. A gay person is prohibited from marrying a person they wish to. A polygamist, on the other hand, is prohibited from marrying all the people they wish to, but is permitted to marry a person they want to. The polygamist has access to the full range of benefits of marriage (though not the multiple times they wish), while the gay person does not. It’s not a controlling argument, but there is a difference.

387

I would argue that incest and polygamy have a much stronger correlation with abuse than marriage.

Is it the original reason behind the laws? I’d agree, probably not. I do think it is a reason such laws exist. It is also, to me, the most justifiable reason. From what I understand, the “biological” arguments against incest aren’t that strong, but I could be wrong there, and I don’t have a cite to hand. Obviously there is a lot of “ick” factor involved too, but I don’t think we should legislate based on ickiness.

As for polygamy, it seems that polygamous societies would tend towards younger and younger “brides” and abusive treatment of male children. That of course is based on a patriarchal society. I haven’t thought much about what a polygamous society where women married multiple men would result in.

388

What, specifically, were left hands “designed” for? Is it a natural act for a left hand to grasp and control a helicopter collective? Was it designed to do that? Was it designed to rest its fingers on the letters ASDF of a keyboard?

How did this design process work, exactly, and how can we determine what other acts may be unnatural for left hands to accomplish? Are there any?

389

I guess there’ll be no more oral sex for you, then. After all, mouths are designed for feeding, breathing and speech.

390

More oral sex for the rest of us, then!

391

What I am curious about is where you (personally) draw the line on overturning precedent.

Certainly there was precedent upholding miscegenation and separate but equal among other things.

Clearly legislatures/voters never got around to changing these laws on their own. Indeed in many (not all places) the laws were there denying people rights because the majority were bigots/racists/whatever.

So, eventually the court finally stepped in and said enough is enough, we simply cannot tolerate this anymore and clearly the situation will not resolve itself. Hoping for a more enlightened population can be a long wait. In the mean time a lot of harm is being done to a lot of people.

So if we have Bricker the SCOTUS judge with a case before him on SSM it is your place to be able to use EP to cover this. Or does precedent trump all?

392

Some, perhaps. But look at what happened in WA. “Everything but marriage” past at the ballot box. “Everything including marriage” has always failed at the ballot box.

393

Precedent trumps most.

If a prior case was simply wrongly decided, with no textual support whatsoever, I can imagine using my Supreme Court vote to overturn it.

In this case, no. The framework and caselaw surrounding EP already is built and it’s not clearly wrong. (That is, it reaches an undesirable result, but it’s not in conflict with the language of the Constitution). In keeping with the principle of judicial minimalism, I would not use my SCOTUS vote to fix this problem. Doing that turns my policy preference into a matter of Constitutional dimension.

394

I don’t think you want to go down that road. Courts usually wait a very long time to fix problems that legislatures are properly tasked with addressing but do not.

It took 58 years for SCOTUS to get around to reversing itself on Plessy v. Ferguson, for example. In practical terms, it’s only been 35 years since the APA decided that homosexuality wasn’t a disease, and it’s really only from that point that mainstream science supported the idea that homosexuality was not inherently “bad” (and that homosexuals were worthy of protection). Hell, it’s only been six years since SCOTUS ruled that homosexual conduct could not be criminalized.

Moreover, it’s only in the last 10-15 years (wholly IMHO) that the idea of gay rights became a mainstream one - basically, it took a generation after DSM-II. Speaking personally, if you asked me what I thought of gay people in 1996 (and possibly 1999, though I don’t remember for sure) I would have said “ewww, gross” or somesuch.

The point is that probably most federal appeals courts and certainly SCOTUS will not be handing down any decisions enshrining a right to SSM in law anytime soon - at least 10 years.

395

Dude, I’m not talking about specifically the Loving case for fuck sake. I’m talking about how in the areas with miscegenation laws you couldn’t get married. It’s directly analogous to how it is today. If you were black and your lady love were white, the ceremony didn’t work. The paperwork didn’t move. The fucking marriage didn’t happen, in the area with the anti-miscegenation laws.

Ya dig?

I’m not talking about someone going to an area where the marriage can be done and moving into the anti-miscegenation law area. I’m talking about someone in the area trying to get married. So stop arguing against what you think I’m talking about and try arguing with what I am talking about.

Plz and thnk-u.

396

They were the exception rather than the rule? So what? It shows that marriage has had a varying definition based on the local rules at the time. That perfectly undercuts Magellan and Magiver’s ignorant and hysterical claim that a *word *will be damaged. The fact remains, the word isn’t what they think it was and the *word *has meant things in the past they would be upset with.

Also, according to Wikipedia, of the 13 original colonies 7 enforced anti-miscegenation laws. So that sounds like it was the default condition for America in the late 18th century.

397

But that’s the distinction that tomndebb was drawing.

Look what he said:

See that? He says it, precisely: “A mixed race couple were still considered married, but their action was improper, unlike bigamy, for example, where the second marriage was considered to have never taken place.”

You disagreed with him:

Bigamy is an excellent example of the difference. A person already married is forbidden from marrying again. That’s just like the interracial situation: an interracial couple is forbidden from marrying.

But what happens if, contrary to that command, they DO marry? In the case of the bigamist, that’s impossible: the second attempt is held to have failed. There IS NO MARRIAGE.

In the case of the interracial couple, the marriage exists. It’s punishable, it’s even voidable, but it’s not non-existent.

The bigamy example is how SSM marriages are being treated… not that they’re forbidden, but that they cannot be executed in the first place.

Do you see the difference?

398

I don’t quite get your point. In your hypothetical marriage between man and woman is only allowed if I married an 80 y/o widow. Okay, that is the accepted norm and it is illegal for me to marry someone closer to my age or someone I actually love. So, I don’t participate in the institution of marriage and, instead, decide to spend my life with the person I love. I WOULD desire many of the same protections provided by the state to married persons and would be in favor of defining my union as some other category. But, honestly, if that was the definition of marriage I would want no part of it.

399

Again, this would be as subcategory and just as wrong as not allowing different races to marry. If marriage is defined as the union of a man or woman than handedness, race, or sexual preference, should not matter. Any opposite sex couple can marry.

I still find it interesting that many here still are willing to put restrictions on marriage but are opposed to the ONE restriction we are debating. The flip side would be removing ALL restrictions on marriage and defining the term away.

400

Uh . . . they were. It was a win. Getting the other side to admit defeat took some doing.