Mass. Lawmakers Reject Gay Marriage Ban

POSTED BY: Geezer
UPDATED: Monday, September 19, 2005 02:17
VIEWED: 7009
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PERFESSERGEE

Saturday, September 17, 2005 7:48 AM

Quote:
Originally posted by Hero:
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Had to use "moronic analogies" because some of you seemed unable to understand the legal issues.

I apologize if I was wrong to do that.

I was basically trying to draw you a map hopeing to guide you from Fantasyland, were you are, to a place called Reality, were most Americans wind up eventually.

Never mind. I'll condense the whole legal, moral, and social argument down for you:

Gay marriage, no. Civil unions, ok.

That should keep you busy for a while.

H

Well, actually not - it won't take any time at all for us thinking people to recognize that you are trying to completely evade the argument. We're asking for something like a rational argument that might begin to justify your assertion that some human beings deserve better treatment than other human beings. Please stop avoiding the issue and tell us why you think some people deserve more and better rights than some other people.

One might wonder if you have ever heard of something called "The Golden Rule" - yeah, that little dictum that suggests you might want to treat people the same way you'd like them to treat you.

And while we're at it, we'd like you to explain the meaning of the adjective "hypocrite", which would be generally used to describe people who would claim privileges for themselves that they deny to others.....

perfessergee

KJW

Saturday, September 17, 2005 3:55 PM

Sad, that my first post is on this issue and not about Firefly, but this is an issue that gets me riled. Especially, when someone is confused about the law… Perhaps Hero is unaware that he is not the only one with a legal education who frequents these boards.

For Hero’s benefit, I would ask him to look at Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Lawrence v. Texas. This continuum of cases clearly establishes that same-sex relationships are protected under the penumbra of the right to privacy and also foreshadow same-sex marriage. This is the law of the nation as it currently stands.

Hero is also confused on the importance of the history of marriage in a legal context. The history of marriage is important not for rejecting same-sex marriage, but for establishing marriage as a fundamental right. So, Hero, is marriage a fundamental right? This really is the crux of the argument, if marriage is indeed a fundamental right, then the state would need a compelling state purpose to deny the right of marriage to same-sex couples.

You see if marriage is a fundamental right, then DOMA is meaningless as it is merely a statute, and must give way if it violates a fundamental right, which are protected by the Constitution. I can guarantee there is no compelling state purpose to bar marriage from same-sex couples. The many excellent previous posts on this thread rebut nearly all of the rather lame, and often prejudiced, reasons cited by those hostile to same-sex marriage.

Now if it is not a fundamental right, then we look to the scrutiny. Hero, is right on one thing, strict scrutiny does not apply to homosexuals, but I would argue intermediate scrutiny should be used, this is typically reserved for the rights of women, but seems to fit in my mind. Even still on the lowest level of scrutiny, that of rational basis, I think the result is the same. Same-sex marriage is mandated by the Constitution, under equal protection.

Admittedly, the federalism question (state v. federal) makes the issue more complex, but full faith and credit applies to marriage and barring a Constitutional amendment (trust me not going to happen) same-sex marriage is on the horizon.

Tradition is insufficient of a legal argument and that is all the opposition to same-sex marriage really has. It failed in Loving v. Virginia, which struck down laws barring interracial marriage enacted by numerous states. Hero, reread this old case, and think instead of same-sex couples and you may get a glimpse of the future. The key is that times and values change, this is a principle of jurisprudence. As has been stated by other posts the tradition argument was used to support slavery, deny the vote to women and minorities, oppose civil rights, and so forth, and has always lost.

Hero’s analysis would have been right two decades ago, today it’s wobbly at best, and in two decades there will be same-sex marriage in the United States. Our country is strongest when it extends civil liberties and is weakest when it contracts these same rights. I also suspect that Hero and others with similiar opinions will in thirty years say that they always supported same-sex marriage. Such is the march of history.

FINN MAC CUMHAL

Sunday, September 18, 2005 8:28 PM

Quote:
Originally posted by MohrStoutbeard:
I just don't see how denying gays the right to marry is any different from some Jim Crow law denying an interracial couple the right to marry. African-Americans were long viewed as something less than people in this country, which is exactly how you're characterizing homosexuals with your childish "what's to stop a man from marrying an animal?

You don’t see it, evidently, because you are ignoring it. Look up the word bigot. You’ll find that it more accurately applies to the pro-gay marriage camp whose inflexible position makes them ignore valid and logical reasoning in pursuit of the agenda to label anyone who doesn’t agree with them a bigot. Personally I’m fed of with this sophomoric desire to call anyone who disagrees with the Liberal position on gay marriage a bigot.

Hero has already addressed the issue you are asking about. I can't speak to the validity of this legal arguments, but his position certainly appears solid from a laymans standpiont. Gay marriage is not like the Jim Crow laws because marriage law is being applied equitably. There is no law that says that gays cannot marry; that is a myth created by proponents of the addition of law concerning same-sex marriage. Currently, to my understanding, the law does nothing but define legal federal marriage as between a man and a woman in an attempt to protect the state’s right to define marriage. You can disagree with this law, but it is not applied inequitably. All male adults regardless of sexual orientation and all female adults regardless of sexual orientation receive the same legal privileges. The gay marriage issue is not about the inequitable application of current law, but rather that addition of new law. The question is do we want to introduce NEW law defining a NEW kind of legal marriage involving same sex. Hero's position is very well stated and very clearly and logically addressed. You may disagree with it, as I do in some areas, but it is a very clear and logical position.

My own personal position is that gay marriage should be legal, and my only logical reasoning for that is that I don’t care one way or another. That’s hardly a sound argument, but it works for me. I however agree with Hero where his argument intersects the states’ rights issues. I think that the states should be allowed to define their own marriage law and that it must be done democratically through either a referendum or the state congress. Judicially established gay marriage, in my opinion, is a tyrannical use of judicial authority because I believe it tramples on the traditions of the states which define their legal and cultural values. In the absence of an inequitable application of law, the states’ laws should be defined based on the traditions and values of the people of that state through a democratic process. That is my personal opinion, how well that compares with current federal law concerning state’s rights, I cannot address.

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Qui desiderat pacem praeparet bellum.

KJW

Sunday, September 18, 2005 8:56 PM

So if marriage was defined to only apply to members of the same race this would be fine, because they are only defining marriage, right? No, because the States cannot implement policy that violates equal protection.

Yes, the States have considerable freedom in formulating policy, but we live in a republic with checks and balances, not a democracy. Part of that check is the courts, who ensure that the rights of minorities are not trampled upon. Believe it our not our courts serve as much of a democratic function as our legislatures, perhaps more so as everyone can have their day in court.

The key question is what is marriage? Marriage is an important right that carries with it both a symbolic importance as well as a host of legal implications. Marriage is also a means of protecting children and custody rights. In all regards the denial of marriage is denying gays the right to protect their children and ensure custody rights for both parents involved in their upbringing. You cannot contract these rights and issues. This is not a theoretical argument, in some states such as Florida there is active discrimination by the state against gay parents. There are real people being hurt by these policies and while the discrimination is less than that suffered by African-Americans during Jim Crow, I hope that is not the standard being used by the United States during the 21st Century.

I have still yet to see someone give a reason, besides that's the way it is, why same-sex marriage should not be the law of the land.

R1Z

Sunday, September 18, 2005 9:08 PM

Hero's position that:

Quote:
Gay marriage, no. Civil unions, ok.

would hold much more water if the rights and privileges afforded by both schemes were identical, which they clearly are not.

Married folk are allowed to file IRS tax returns jointly, pairs of people in a civil union are not. There are literally hundreds of other instances having to do with insurance policies, hospital visitation rights, rights of survivorship, etc. etc.

The difference is clearly, demonstrably, much more than semantic, and that's why it won't sell.

To enjoy the flavor of life, take big bites. Moderation is for monks. --Robt. Heinlein

FINN MAC CUMHAL

Sunday, September 18, 2005 10:35 PM

Quote:
Originally posted by KJW:
So if marriage was defined to only apply to members of the same race this would be fine, because they are only defining marriage, right? No, because the States cannot implement policy that violates equal protection.

Current marriage law does not, in general, violate equal protection. The law is applied equally to all involved. The gay marriage argument is about the addition of new law not the inequitable application of current law.

Quote:
Originally posted by KJW:
I have still yet to see someone give a reason, besides that's the way it is, why same-sex marriage should not be the law of the land.

Because the people have not decided that that is the way it should be.

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Qui desiderat pacem praeparet bellum.

KJW

Monday, September 19, 2005 12:25 AM

Hawaii, Mass., and Vermont Supreme Courts have disagreed with you. The same argument was given against interracial marriage, that was seen to violate equal protection. You see the opponents of that, espoused pretty much the same position as you are.

We have decided that all Americans deserve to be treated equally. That is the law.

FINN MAC CUMHAL

Monday, September 19, 2005 1:13 AM

Well some courts, or perhaps more accurately some judges, do seem to have decided that they know better then the people what laws should be legislated. They are welcome to disagree with me, but I still think that the laws should be “for the people, by the people” not “for the people, by the judges.”

As far as laws against interracial marriage, it did violate equal protection, because marriage law was not being applied equitably. The laws against interracial marriage, if I remember correctly, forbid a white person from marrying a non-white person, which means that if a white man, as in the case of Loving v. Virginia, wanted to marry a black woman he would be forbidden to do so even though the definition of marriage, as understood by the law, was between a man and a woman. The implication of this was that the marriage law was not being applied equally. White people did not have the same freedom to marry who they wanted to marry within the definition of marriage as non-white people. In the case of gay marriage the definition of marriage is applied uniformly to both gay and straight people. It equally protects all parties regardless of race or sexual orientation. So therefore how can there be a violation of equal protection? Doesn’t seem to me that there is one. Some in the pro-gay marriage camp want to create a new legal definition of marriage and then, by pass the democratic process, by saying that if you don’t sanction my new definition of marriage it means you’re a bigot. That’s absurd.

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Qui desiderat pacem praeparet bellum.

KJW

Monday, September 19, 2005 2:17 AM

We have two major differences that just will not be resolved. First I believe that the American legal system is just and necessary and that equal protection is not a decision for majority rule. Second, I do see the treatment of gays in this country as discriminatory and unjust.

Mainly its a difference of vision, like the Copernican system vs. Ptolemaic system. You see the earth at the center of the universe, I see the sun. :) Kidding aside I understand you perspective and do appreciate it, like you said we just disagree.

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