Currently making the social networking rounds is the graphic found at this link. Supposedly, it is "How to Explain Marriage Equality to an Idiot"
Notice what's missing?
The common question asked by people who, like every great civil rights leader in history, like every major religious tradition, like every person involved in writing and adopting the Constitution, and like every President up through this writing, understands that marriage unites a bride and a groom, is "If we change marriage laws to include homosexual relationships, why not polygamous relationships, incestuous relationships, pedophiliac relationships, relationships with animals, and relationships with inanimate objects?"
The text and the graphic completely ignore polygamous and incestuous relationships. I can only guess as to why. Here are my guesses:
1. These people want those relationships to get marriage licenses, too.
2. They realize the same justification they use for neutering marriage licenses also applies to polygamous and incestuous relationships.
Of course, we all know it is ridiculous to compare same-sex relationships to heterosexual polygamy and incest. After all, the latter two kinds of relationships have been historically recognized as valid marriages.
Oh, and by the way, homosexual people can get married, whether they want to or not. What we're opposed to is equating nonmarital relationships, including brideless or groomless relationships, to marriage, not "gays getting married".
Regarding adults marrying children: There are organizations pushing to lower the age of consent, and organizations that advocate the "rights of children" in a way that would also support a child being legally able to consent to marriage over the objections of their own parents.
Regarding "marrying" animals: There are governments seriously considering recognizing some (non-human) animals as persons. Why wouldn't such persons have the right to marry other persons?
And yes, some people have "married" inanimate objects.
The point is, the marriage neutering activists, like the marriage defenders, believe that marriage means something and that whatever doesn't fall into that category isn't marriage. It is a dispute of definitions, not a matter of hatred. The definition that marriage unites a bride and groom has been the universal definition through all of the cultural differences. Two men can't consent to marry each other any more than they can consent to an ash tray being food. Without both a bride and a groom, it isn't marriage, and that some governments have recently said otherwise only shows those governments to be defective, along the line of a government that would label water as cow's milk. One bride, one groom IS marriage equality.
We have our own graphic for people having a tough time understanding this.
Tired of hearing the rightwing nutjobs claim that if gays and lesbians can get married, soon people will be marrying their dog or their toaster? Here's a handy dandy chart to help you patiently explain the obvious differences.Good use of "handy dandy", too. Extra points for that.
Notice what's missing?
The common question asked by people who, like every great civil rights leader in history, like every major religious tradition, like every person involved in writing and adopting the Constitution, and like every President up through this writing, understands that marriage unites a bride and a groom, is "If we change marriage laws to include homosexual relationships, why not polygamous relationships, incestuous relationships, pedophiliac relationships, relationships with animals, and relationships with inanimate objects?"
The text and the graphic completely ignore polygamous and incestuous relationships. I can only guess as to why. Here are my guesses:
1. These people want those relationships to get marriage licenses, too.
2. They realize the same justification they use for neutering marriage licenses also applies to polygamous and incestuous relationships.
Of course, we all know it is ridiculous to compare same-sex relationships to heterosexual polygamy and incest. After all, the latter two kinds of relationships have been historically recognized as valid marriages.
Oh, and by the way, homosexual people can get married, whether they want to or not. What we're opposed to is equating nonmarital relationships, including brideless or groomless relationships, to marriage, not "gays getting married".
Regarding adults marrying children: There are organizations pushing to lower the age of consent, and organizations that advocate the "rights of children" in a way that would also support a child being legally able to consent to marriage over the objections of their own parents.
Regarding "marrying" animals: There are governments seriously considering recognizing some (non-human) animals as persons. Why wouldn't such persons have the right to marry other persons?
And yes, some people have "married" inanimate objects.
The point is, the marriage neutering activists, like the marriage defenders, believe that marriage means something and that whatever doesn't fall into that category isn't marriage. It is a dispute of definitions, not a matter of hatred. The definition that marriage unites a bride and groom has been the universal definition through all of the cultural differences. Two men can't consent to marry each other any more than they can consent to an ash tray being food. Without both a bride and a groom, it isn't marriage, and that some governments have recently said otherwise only shows those governments to be defective, along the line of a government that would label water as cow's milk. One bride, one groom IS marriage equality.
We have our own graphic for people having a tough time understanding this.
I checked out the graphic on that link. Was that really an essay on a graphic?
ReplyDeleteI think it is funny how after we have had HTML for more than two decades, people still feel the need to write directly on pictures to make their point.
Hawkward! http://mestadelsbilder.files.wordpress.com/2011/07/hawkward.png?w=460&h=410
;)
Still, they make the good point that marriage is already recognized as a secular institution.
The rest I can take that as a statement of how they feel on the subject. I see their point, and how they get to it.
Unfortunately it comes by ignoring what marriage really is. The question I have for the author (painter?) is if gays have to have "marriage" rights to make their relationship equal, do two sisters, or two friends committed and raising children together have to also?
I don't see how their graphic answers that question, but it does imply they would.
This was the graphic that got me unfriended by the suburban progressive, when I informed her privately about the looming fatherless issue where I live and where she avoids, and why it hurt to think she thought I was an idiot. Ironicly, a gay marriage supporter on facebook privately message me recently, that she appreciates my arguments.
ReplyDeleteAsk those who think that opposing neutering marriage is outside the bounds of civil discourse if they feel anything for what this couple is going through.
ReplyDeleteAsk them if they feel that this couple should have their child taken from them.
If they do not feel that the child should be taken from them, ask them if they nevertheless feel that the couple should not be given a marriage license.
If they feel that the couple should not be legally married, yet would not remove the child from them, ask them if they still feel that it is just as repugnant to not legally allow someone to be married as it is to take their kids from them.
Ask them if this couple might feel that denial of marriage to them is "morally repugnant".
Ask them if they should therefore refrain from arguing against this couple being married, because to this couple such an argument may be morally repugnant.
Ask them if they have any limits on who should and should not get married.
Ask them if it is to be considered out of the bounds of civil discourse for them to argue that the couple in the link should not be married.
If not, ask them if they still want to contend that it is out of the bounds of civil discourse to argue against any couple being legally married, or if it is just out of bounds if someone else's line differs from theirs.
Ask them if this is not total hypocrisy on their part.
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ReplyDeletere: "..... if gays have to have "marriage" rights to make their relationship equal, do two sisters, or two friends committed and raising children together have to also?"
ReplyDeletePerhaps we can test the "two marrying sisters" or "two marrying friends" claim for so called marriage rights against existing civil marriage law's) that might or might not prohibit their marriages.
The two opposite sex marrying friends could probably marry today as they have been able to do so in the past. Same as it as always been. So this scenario is removed from consideration.
Two sisters who want to marry, might run into current law that prohibits incestuous marriage.
So what standard of review might apply to the "two marrying sisters" for the law in question? Rational basis or heightened scrutiny? After all, they might whine and claim "The Equal Protection Clause of the Fourteenth Amendment states that no State shall...deny to any person within its jurisdiction the equal protection of the laws."
If the standard of review is rational basis, then any reason for the law against incestuous marriage might likely work. Simple disapproval of the conduct might even uphold the law.
So if the standard is rational basis, the law could easily be upheld and the two sisters could not marry.
But.....
If the standard of review is heightened or strict scrutiny, then more of a reason that accomplishes a public policy objective, be narrowly tailored and least restrictive can be required.
Would the two sisters be eligible for heightened scrutiny?
Sadly, the two marrying sisters must satisfy a few eligibility tests for a higher standard of review.
1. Are the two marrying sisters considered a discrete and insular minority? This implies that the characteristics defining the group cannot be easily changed and that there is no easy entrance into or egress from the group.
Not aware of any evidence or facts that would identify them as a minority or that that their relationship was so fundamental to their identity it would be irrational to ask them to change it. So they fail this test..
But if they passed this test, what is the next hurdle?
2. History of Purposeful Discrimination. Certainly there are laws targeting this kind of relationship for marriage eligibility. - The two marrying sisters might indeed pass this test.
3. Politically Powerless. Have the two marrying sisters tried to change the laws in their respective state legislatures to no avail or limited success. What efforts exist to change incestuous marriage laws? Have attempts at the political process been made? Perhaps not.
Now on to the next one...
4. Immutable Trait.
Is there an easy way to change the distinguishing “two marrying sisters” characteristic. Most importantly, there is no free entry into and egress this group. This is the difference between race or gender which cannot be easily changed and is considered fundamental to their identity. How would the two marrying sisters fare in passing this test? What evidence exists that this cannot be easily changed? Here too, they most likely would fail.
The two marrying sisters are most likely not eligible for the heightened scrutiny standard of judicial review and rational basis applies. Therefore, any reason might do in denying the two sisters a license to marry.
I'm going to jump in here because this is so much fish ready in a barrel...
ReplyDeleteUnknown: > The two opposite sex marrying friends could probably marry today as they have been able to do so in the past. Same as it as always been. So this scenario is removed from consideration.
Platonic friends...
Could, maybe.
Should? No. Would? Definitely not.
Two friends who are platonic and committed to each other should not be required to be married to get the recognition of their commitment, and the mutual dependency a child might have on their commitment.
If you allow that a non-marriage recognition of commitment is agreeable, then you must accept that status is not second class citizenship, unless you are ready to call them second class citizens.
And if you are willing to agree that non-marriage commitment being recognized is not second class citizenship, then that must be true for homosexual couples.
For what can you point to that makes a homosexual couple different in merit, in consideration, and recognition than anyone else in a committed relationship with the potential of mutual dependents?
On the other side of the coin, if not recognizing relationship is a way of creating a second class status, one should note the second class status created when we don't fully recognize marriage as rooted in responsible procreation. Should the rights of a child be removed by completely becoming blind to the facts of how a child are created? The child, and each participant that shares an identity to create a child, have rights congress through marriage. To not fully recognize them is unjust.
In fact, only in marriage can all of their rights be fully and equally recognized.
Unknown: > If the standard of review is rational basis, then any reason for the law against incestuous marriage might likely work. Simple disapproval of the conduct might even uphold the law.
Wishful thinking again.
Especially if the rational basis is romantic relationship in a marriage (I can think of no other difference between such a couple and a homosexual couple), to which the sister-couple would be able to challenge...
1) Do we have to be romantically involved to get recognition of our commitment? There is no presumption or test for romance, nor should there be. Any such test would be discriminatory against people who are not romantically inclined. It causes harm that our relationship is not recognized equally.
The state would then need to justify the expectation of romance in light of harm done without the recognition.
Justification that would no longer be afforded after the justification of sexual binding by blood relation through children had been challenged and removed, the mere expectation of romance is a trivial and subjective expectation ripe for being challenged.
If an expectation based on common human biology is no longer recognizable, then how can an expectation based on unverifiable human feelings exist?
And then, as asked before, can you really expect people to get married to obtain the recognition and rights their relationship would benefit from?
Unless you can answer that question, I don't expect the court to be able to answer it either.
Also I take exception to your establishment of heightened scrutiny based solely on the judgement of those wronged.
ReplyDelete'In Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008), the United States Court of Appeals for the Ninth Circuit ruled that the law commonly known as "don't ask, don't tell" (DADT) was subject to "heightened" scrutiny based on its analysis of Lawrence. The court articulated a three-pronged test for heightened scrutiny. To pass, the law "[1] must advance an important governmental interest, [2] the intrusion must significantly further that interest, and the [3] intrusion must be necessary to further that interest".
Obviously any test that would require people to be romantic is an intrusion on their equal consideration to obtain recognition of mutual trust with the potential of mutual dependents could not withstand that kind of scrutiny on, has no precedent for any kind of law established, and is created whole cloth simply by removing the expectation of actual blood relationship -- normally occurring in romantic relationships -- as is the basis of marriage status in law.
re: "Platonic friends...
ReplyDeleteCould, maybe.
Should? No. Would? Definitely not.
Two friends who are platonic and committed to each other should not be required to be married to get the recognition of their commitment..."
I'm not saying two opposite sex friends, could or should marry or their reasons for doing so. I'm trying to determine if two opposite sex friends could marry under existing law for whatever reason or no reason.
Could two opposite sex friends marry?
Yes, they could indeed, they don't need to provide a reason. Should they, would most friends marry, have a few married for health or travel benefits? They are entirely different questions. My answer is still correct I believe, yes two opposite sex friends could and sometimes do marry.
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re: "Especially if the rational basis is romantic relationship in a marriage (I can think of no other difference between such a couple and a homosexual couple)"
Whoa... Who said anything about a romantic relationship being a rational basis? That is great straw man, but not an argument I made.
Let's review then, rational basis means that the government can use almost any generalized reason for a law's validity. If the marrying sisters could qualify as a suspect class, then the law must be shown to accomplish a public policy objective as a valid reason to deny them a marriage license.
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re: "Also I take exception to your establishment of heightened scrutiny based solely on the judgement of those wronged." Please take exception only if I've misunderstood the conditions for heightened scrutiny as defined by law.
re: "Obviously any test that would require people to be romantic is a..."
I did not say that this is a test for heightened scrutiny. See items 1 though 4 in my original post. These are pretty much the exact conditions, nothing in there about romantic being one of them.
Unknown: > I'm trying to determine if two opposite sex friends could marry under existing law for whatever reason or no reason.
ReplyDeleteI get it, that is why you come up with a bad conclusion that marriage could be required of people who are non-sexual at all. Even if that comes in conflict with other situations which are barred because of expected sexual relations in marriage.
The contradictions abound because you simply don't see what is plainly evident about marriage.
Marriage comes with a lot of connotation, one of which makes their relationship cast in a light that they may not want to portray. Anyone considering the availability of marriage and the harm/help it portrays would understand that rational basis provides the very cornerstone of the legal requirements.
And that rational basis is rooted in our human understanding of the institution.
Unknown: > they don't need to provide a reason.
Instead, you should not avoid the question of how no matter whether or not the institution is available, the question is should that be required or accepted of the institution for the people entering into it.
Could? Yes.
Should? No. Would? Definitely not.
Sweeping all this under a rug, saying they could get away with it, is an legal fallacy. It is also socially ignorant.
Unknown: > Who said anything about a romantic relationship being a rational basis? That is great straw man, but not an argument I made.
I'm sorry I was hoping for a more informed discussion. If all you can point to is your ignorance ... wait no that isn't exactly what you are pointing to is it. Your avoidance is not due to ignorance, it is due to a need to prop up a theory by avoiding what contradicts with it, and avoiding the conclusions one can base off of it.
You might not be ignorant of it, you might simply be very intelligently avoiding it.
However, avoiding it is not a defense. Ignorance is not a defense.
When you say you don't see a romantic basis for marriage, you failed to address how that happens.
When the justification of sexual binding by blood relation through children had been challenged and removed, the mere expectation of romance is all that is left, or do you disagree?
As I said earlier...
"[romantic rational basis] has no precedent for any kind of law established, and is created whole cloth simply by removing the expectation of actual blood relationship -- normally occurring in romantic relationships -- as is the basis of marriage status in law."
Saying you didn't talk about it is no answer.
Unknown: > rational basis means that the government can use almost any generalized reason for a law's validity.
This is false, constitutionally the government is very limited to its interests. And the rational basis requires that the law be rationally related to a legitimate government interest (as noted in the wikipedia on Rational Basis Review).
Unknown: > could qualify as a suspect class
The basis of who could qualify is not static, thus one should not presume that no suspect class can be found with a legitimate interest in making their commitment recognized as a marriage.
Which is why your treatment of what a suspect class is, although relatively accurate, wishful thinking.
Unknown: > Please take exception only if I've misunderstood the conditions for heightened scrutiny as defined by law.
You treated only one side, the conditions of the class of people which I find rather limited and irrelevant.
Instead I wanted to read you treat how, if such a class comes forward, you can justify on the intermediate or heightened scrutiny any basis of marriage which meaning is either neutered of the reference to man and woman or refers to same-sex couples.
So your post, of what you did not say, is rather meaningless don't you think?
I'm very interested, as it turns out, in just about everything related to this topic you don't seem to be able to address.
On Lawn, where did I say "that marriage could be required of people who are non-sexual at all. Even if that comes in conflict with other situations which are barred because of expected sexual relations in marriage."
ReplyDeleteCan you stop the banner waving for a moment and read what I actually did say?
I'm talking about two opposite sex and two sisters who may want to marry. Two opposite sex people of legal age, friends or not, might be able to legally marry in Las Vegas in less than a few hours. I'm just stating obvious fact. I may not call it marriage personally, but the law would recognize their union as a legal and valid marriage.
I did not state "that marriage could be required of people who are non-sexual at all." I've re-read my post and could not find it.
re: "Unknown: > rational basis means that the government can use almost any generalized reason for a law's validity.
This is false, constitutionally the government is very limited to its interests." Sorry you are wrong, you stated better than I in your own post regarding heightened scrutiny. Here is your direct quote, not something I pulled out thin air:
"The court articulated a three-pronged test for heightened scrutiny. To pass, the law "[1] must advance an important governmental interest, [2] the intrusion must significantly further that interest, and the [3] intrusion must be necessary to further that interest".
And the rational basis requires that the law be rationally related to a legitimate government interest (as noted in the wikipedia on Rational Basis Review)." WOW WE AGREE!!
And as I said, this interest can be pretty much any reason at all. For example, denying federal health care benefits to same sex couples who are legally married, promotes traditional marriage could be a reason that meets this standard.
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re: "Which is why your treatment of what a suspect class is, although relatively accurate, wishful thinking." The law is the law, I don't make the rules. Don't shoot the messenger.
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re: "Instead I wanted to read you treat how, if such a class comes forward, you can justify on the intermediate or heightened scrutiny any basis of marriage which meaning is either neutered of the reference to man and woman or refers to same-sex couples."
No, you are wrong again, please go back and re-read what was actually stated. Here it is for you:
: "..... if gays have to have "marriage" rights to make their relationship equal, do two sisters, or two friends committed and raising children together have to also?"
If you think it was a rather meaningless question, why did you ask?
I addressed those two points. Opposite sex friends can marry and do marry today, whether I like it or not. Same sex sisters who want to marry would face existing law challenges, one of which might be a law prohibiting incestuous relationships. I then walked your scenario through what would be a due process and equal protection challenge to that law as an example. My conclusion was that the law prohibiting their marriage could most likely be supported by rational basis review and they would probably not quality as a suspect class for heightened scrutiny.
That is all I said, nothing more... please don't read anything else into what I actually wrote or claim that I said something that I did not.
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Moving on...
I assume the next logical step would be to walk the "3 or more person" scenario or "Person to inanimate Object" or even the "same sex couple" scenario through the same process I described in my first post above to determine if rational basis is the standard of judicial review or heightened scrutiny, in what would be a due process (5th Amendment) and Equal Protection (14th Amendment) challenge to the law that prohibits their ability to obtain a marriage license.
Its funny all the people who think they can win and argument by setting what can and what cannot be talked about.
ReplyDeleteSo lets just put this point blank as questions to find what you do say about this subject, okay? What you have said is clearly insufficient.
1) Would you say that equality demands that a same-sex relationship be recognized as marriage to obtain all the relevant benefits their similar situation warrants?
2) Would you say that equality demands that a non-romantic couple be recognized as marriage to obtain all the relevant benefits their similar situation warrants?
3) Would you say that equality demands that a non-romantic (thus non-incestuous) relationship between siblings should be recognized as marriage?
None of these questions are adequately answered if you say they can. The question is not about "can" it is about what equality demands in your understanding of the constitution.
I'm trying to find out more about your opinion. I see no reason to hide it from all of us.
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ReplyDeleteWhat conduct would justify the SSM ban against some but not all related people? Showing up to SSM is what SSMers insist must suffice when they complain about the man-woman basis of marriage law. It cannot be acting on mutual attraction - whether in platonic friendship or in same-sex sexual friendship. What is the conduct, Unknown, that you have in mind when it comes to sibling friendship, for example? It appears that you'd stress behavior over mutual attraction.
ReplyDeleteOn Lawn.. You can discuss any topic you want.
ReplyDeleteHowever, I was responding to two questions that you posed. One was about two opposite sex friends who want to marry and the other, about two sisters who want to marry. I thought it best to run those two scenarios though our existing legal process. The argument would most likely be a due process and equal protection claim. I tried to be accurate when running this due process and equal process claim through the current legal process in order to determine if the marrying sisters could qualify as a suspect class. Then if laws preventing their capability to obtain a marriage license were Constitutionally justifiable.
The only way I know how to handle the non-romantic or same sex scenario is to run it through our existing legal process to determine if they qualify as a suspect class and the merits of rational basis if that is the appropriate standard of judicial review.
We have a legal process and framework for making those determinations. I suggest we use the process that is in place for addressing the non-romantic/non-incestuous and then the same-sex scenario.
Do you disagree with the legal process for the resolving due process and equal protection claims at issue in the non-romantic/non-incestuous and/or same sex scenario?
I suggest we walk each scenario through the existing legal process regarding the due process and equal protection and equal claims at issue. The reason is that we have a proven and time tested legal process in place, so why not use it? Are we in agreement?
Unknown when you referred to disapproval of conduct, what conduct did you have in mind? Would it be mandatory for all who'd SSM?
ReplyDeleteIf you had in mnd sexual conduct then you would be at odds with your comments regarding the eligibility of the platonic type of friendship. The sibling friendship is a type of platonic friendship.
Related people can and do marry. On what basis would the one-sexed scenario present justification for barring the friendship of relatives?
If you would openly contradict your own thinking, okay, but you'd forfeit the claim of applying standards consistently and accurately.
Assume, if you like, that related people would be barred base on adult incestuous conduct.
Being born related is rather more concrete than being born with this or that sexual orientation. However there is such a thing as genetic sexual attraction i.e. related people being sexually attracted. The conduct of persons eligible to SSM would be the conduct - sexual or otherwise - of consenting adults. This well fits SSM argumentation. So much for definitive characteristic and immutable trait.
A minority ... yes. Powerless ... yes. No easy entrance and egress ... yes again.
Read RK's comment upthread. Read the linked story of siblings. Recalibrate and redo your walk through the legal process.
OnLawn was correct to refer to romance. And to freindship. He spoted what you skipped over.
Charim, regarding the two marrying sisters, what is the law in question that would currently prohibit ability to obtain and marriage license? Then lets follow it through the legal process and their due process and equal protection challenge. Would rational basis apply in judicial review or could they qualify or a suspect class?
ReplyDeleteUnknown,
ReplyDeleteI think Chairm has already adequately called you on a few contradictions.
Even the one in your latest post in your radical stance against the rational basis of marriage in responsible procreation, yet acquiescence to precedent.
He also in the posts called you out on the contradiction of appealing to jurisprudence of the 14th amendment, to produce unequal access to the protection of law.
You simply have too many contradictions to take seriously.
Thanks for playing.
I'm still waiting for someone to give a rational (at the very least) answer to RK's question above.
You tried, but even in a very stripped down version contradicted itself, and what you were appealing to.
On Lawn where has your argumentation be tested in civil law? That might help you understand better. I think the question is if consanguinity laws violate two marrying sisters right to due process and equal protection. Some United States jurisdictions forbid first-cousins to marry, while others limit the prohibition to brothers, sisters, mothers, fathers, aunts and uncles.
ReplyDeleteUnknown, what do you see my argument as being at this point?
ReplyDeleteI'm happy you are finally ready to discuss it. But let me find out where and what you think it is so far.
On Lawn. You asked about non-romantic and same sex couples. We have yet to agree on the best process for addressing these questions or that the claim would most likely be a due process and equal protection issue.
ReplyDeleteThe only way I know how to handle the non-romantic or same sex scenario is to run it through our existing legal process to determine if they qualify as a suspect class and the merits of rational basis if that is the appropriate standard of judicial review. This may help determine if what are known as consanguinity laws violate Constitutional rights to due process and equal protection.
You don't seem to want to provide a legal argument that could be addressed in our jurisprudence with supporting evidence and/or case law. If you accept that the best way to address these issues is through our legal process, we need something to work with.
I tried to help you by suggesting a challenge to the consanguinity laws. If this is not it, what law would you suggest that your issue is the best match? Then we can go forward working with you each step of the way through the legal challenge. So far I simply have no legal case to work with. That would be a horrible outcome, no?
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ReplyDeleteUnknown before: >>> On Lawn where has your argumentation be tested in civil law?
ReplyDeleteI asked simply: >> Unknown, what do you see my argument as being at this point?
Unknown replied: > On Lawn. You asked about non-romantic and same sex couples.
You made a real point up above to stick to what you said.
I see that you pay your own words less regard than I do.
Unknown: > The only way I know how to handle the non-romantic or same sex scenario is to run it through our existing legal process [...]
In the existing legal process, Baker v Nelson is the precedent that says at the federal level there is no 14th amendment question on same-sex marriage. In simple terms, that is the same thing as saying it is obvious that there is no conflict between marriage requiring both genders and the 14th amendment.
Current legal precedent at the federal level is that marriage's requirement for both genders handles strict and rational scrutiny in the interest of preserving the rights recognized with responsible procreation.
In that system, there is no reason to question any same-sex couple, let alone two sisters.
Unknown: > You don't seem to want to provide a legal argument that could be addressed in our jurisprudence with supporting evidence and/or case law.
On the contrary, I'm more than happy to go there. Of the people that have actually quoted actual jurisprudence in rational basis and heightened scrutiny in this thread, I'm the only one so far.
I also pointed out your sluff on reasonable basis. You still seem to think that almost any basis will work for it, but that isn't how the legal precedent sees it. It has to be (as insinuated by the name) rational, and it has to be a legitimate government interest.
Also I was the one who pointed out your elevation to heightened scrutiny was lacking any commentary on what could meet that kind of scrutiny.
I also pointed out how consideration of both points were needed to come to a rational conclusion on the matter, and their omission was truly suspect in your writing.
Unknown: > determine if they qualify as a suspect class
Just as Chairm noted, your argument looks only at the people, and that continues to be your sole focus (for reasons you've never adequately explained). Just so you know, giving different protection based solely at the identity of the people who are plaintiffs is the opposite of what the 14th amendment wants us to look at.
When the levels of scrutiny is the sole relevant point, as you make it, you are doing the very thing the 14th amendment was meant to protect us from.
I've pointed that out to you already. Chairm has too. I find it laughable that you continue to claim adherence to legal procedure in spite of that glaring contradiction.
Nor do you seem to be willing to engage in a real discussion on the legal ramifications of any particular theory you seem to want to dance around.
Unknown: > So far I simply have no legal case to work with.
And I think you are being honest there, you don't have not put forth any legal case to work with. I don't even think you can, to be honest.
re:" In the existing legal process, Baker v Nelson is the precedent that says at the federal level there is no 14th amendment question on same-sex marriage. "
ReplyDeleteHow did we jump all the way to Baker v. Nelson? We have not even started the non-romantic relationship marriage case yet. I'm having a great deal of trouble getting you to start sy the beginning of the process. This is so we can work through one case at a time in an orderly and systematic way all the way through to completion.
Baker v. Nelson does not relate to consanguinity laws. You're going all over the place and back and forth.. Lets, focus, focus, focus... Bite off a small little piece, imagine your in a non-romantic relationship, and have been denied a license to marriage... so, far so good right? What law governs this issue? Focus, Focus, Focus..... we have a long way to go. That is. if you believe there is something that is legally substantial to your argument.
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re:
"And I think you are being honest there, you don't have not put forth any legal case to work with. I don't even think you can, to be honest." Whoa, I've tried to help YOU come up with a legal due process and equal protection case. I think YOU would flip over backwards and jump through hoops to find a legal case to support you're argumentation. Is the force of law not important, to you? If you wish to deny marriage to friends, sisters, moms and sons, 3 or more people on a "just because you say so?"
If there is no legal due process and equal protection case to be made, and no force of law to your argument, what are we left with? It most likely means your argument is meaningless in court of law.
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By the way, Baker v. Nelson was a soft ruling, not heard by the full court, and dealt with sex not sexual orientation. Also, in Perry vs Brown, with granting a fundamental right, not the taking away of right after the fact. That aside, consider stare decisis, cases which have been hastily decided, or contrary to new facts that may come to light. Many hundreds of such overruled cases may be found in the American and English books of reports. More simply, Stare decisis is a maxim among lawyers, that whatever has been done before may sometimes get a do-over (see Lawrence vs. Texas, another go at Sodomy laws).
Unknown: > How did we jump all the way to Baker v. Nelson?
ReplyDeleteI'll show you the instant replay on that.
Unknown: >>> The only way I know how to handle the non-romantic or same sex scenario is to run it through our existing legal process [...] You don't seem to want to provide a legal argument that could be addressed in our jurisprudence with supporting evidence and/or case law.
Me: >> In the existing legal process, Baker v Nelson is the precedent that says at the federal level there is no 14th amendment question on same-sex marriage. In simple terms, that is the same thing as saying it is obvious that there is no conflict between marriage requiring both genders and the 14th amendment.
Me: >> Current legal precedent at the federal level is that marriage's requirement for both genders handles strict and rational scrutiny in the interest of preserving the rights recognized with responsible procreation.
Me: >> In that system, there is no reason to question any same-sex couple, let alone two sisters.
That is the current legal system, is it not? And does it not answer what happens to the non-romantic and same-sex scenario?
Your confusion is a valid reply, but only speaks to your comprehension ability. I'd rather a reply that acknowledges you asked for it in the first place.
Unknown: > Baker v. Nelson does not relate to consanguinity laws.
Not true. Baker v Nelson establishes the rational basis on which marriage is founded. You even said yourself that, "If the standard of review is rational basis, then any reason for the law against incestuous marriage might likely work."
Again, if you don't care about what you said earlier, why should I care what you say ever?
Unknown: > Focus, Focus, Focus....
How laughable. You asked for precedent, I gave it. Now you want to focus away from it.
You are all over the place. When you are serious about making this a legal discussion, feel free to return.
Unknown: > I've tried to help YOU come up with a legal due process
ReplyDeleteIf so then why have you asked me to "focus, focus, focus" away from legal due process?
Your house of cards has completely fallen.
Uknown: > Is the force of law not important, to you?
Says the person trying to avoid the legal precedent already presented :)
Like I said, as far as I can tell you've completely exposed yourself as non-legally based at this point.
Unknown (making his own bed) says: > By the way, Baker v. Nelson was a soft ruling, not heard by the full court, and dealt with sex not sexual orientation. [...] More simply, Stare decisis is a maxim among lawyers
That sounds like you are telling half truths again. Here's the other half, and as so to avoid the accusation of loading the dice I'll simply quote the Wikipedia on it...
"on October 10, 1972 the United States Supreme Court dismissed the appeal "for want of a substantial federal question." Because the case came to the federal Supreme Court through mandatory appellate review (not certiorari), the summary dismissal constituted a decision on the merits and established Baker v. Nelson as a precedent,[2] though the extent of its precedential effect has been subject to debate.[3]"
"[...] Baker and McConnell appealed the Minnesota court's decision to the U.S. Supreme Court. There, they claimed the Minnesota marriage statutes implicated three rights: they abridged their fundamental right to marry under the Due Process Clause of the Fourteenth Amendment; discriminated based on gender, contrary to the Equal Protection Clause of the Fourteenth Amendment; and deprived them of privacy rights flowing from the Ninth Amendment to the United States Constitution.[12] On October 10, 1972, the U.S. Supreme Court issued a one-sentence order dismissing the case "for want of a substantial federal question."[13]
In most cases presented to the U.S. Supreme Court, the Court's refusal to hear the case is not an endorsement of the decision below.[14] However, since this case came to the Court through mandatory appellate review, the summary dismissal is a decision on the merits of the case.[15] As binding precedent, the Baker decision prevents lower courts from coming to a contrary conclusion when presented with the precise issue the Court necessarily adjudicated in dismissing the case.[16]"
The Wikipedia also shows a history of case law where in the substance of marriage Baker was found as controlling precedent.
One notable exception was Walker's ruling in Perry v Brown, where as the Wikipedia says, "In his ruling striking down Proposition 8, a state constitutional amendment barring same-sex marriage, Judge Walker made no mention of Baker [...]". He did mention it in hearing a motion on summary judgment, saying there was enough of a question to continue the trial. However, he never answered the question in his ruling, at most "referring only to his previous Order" that said there was a question.
Its suspect to me that he asks the question, and then simply keeps the question open.
Others found a very firm resolution in it,
ReplyDelete"Indeed, in Baker v. Nelson, when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed "for want of a substantial federal question." There is good reason for this restraint." -- Citizens for Equal Protection v Bruning
"The Supreme Court has not explicitly or implicitly overturned its holding in Baker or provided the lower courts, including this Court, with any reason to believe that the holding is invalid today." -- Wilson v Ake
Unknown: > (see Lawrence vs. Texas, another go at Sodomy laws)
Yes, lets reverence Lawrence. The ramifications of which were discussed by two of the justices at the time...
'If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct...what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"?'
To which we can also conclude that if moral disapprobation is no longer a "legitimate state interest", then incest or plural marriage is suspect too.
As far as heightened scrutiny, it would be impossible to show punishment, cruelty, or prosecution of homosexuality that has not also been made for incestual practicing people also.
In fact, since the government can and will forcibly remove an incestuous couple from each other, but will not do so for a same-sex couple trying to overturn the requirement of both genders in a marriage, you could say their prosecution at this time is a higher level.
Once again, the only person discussing the legal process, and quoting precedent to the strict resolution of the issues, is myself.
And your only reply is to have me "focus, focus, focus" away from it?
How much longer do you think you can carry on this way before it is so evident you are paying only the most trite lip service to legal precedent and process. How much longer before you will no longer be able to deny that you are not interested in actual precedent? And you already said you are not interested in the projected precedent of the changes you expect with same-sex marriage.
What law is at issue, Unknown, in your previous self-assured walk through? That same prohibition on relatives marrying is at issue. You need to recalibrate as per my previous remarks and perform a redo of your walk through.
ReplyDeleteThe sibling friendship, for example,is a platonic type of friendship. You had previously claimed that friendship was no barrier to marry. The mutual attraction of the male and the female friends is not the basis for their eligiblity nor ineligibility; the mutual attraction of siblings is not the basis for their eligibility nor ineligibility. But you had referred to disapproved conduct and I had asked what conduct you had in mind. You skipped passed that.
The conduct must be approved for platonic friendship of male friends or female friendss but disapproved for the platonic friendship of siblings. Please state what you had in mind. You brought it up.
Is the conduct mandatory for those who'd SSM? If not how can it be used to bar some same sex scenarios from SSM? If the conduct is not essential to SSM then what conduct is essential but can not be performed by related people? If it could be performed but is disapproed of, then, who's diapproval has this weight to justify the ban?
If you had sexual conduct in mind then you must deal with the pro-SSM rules of argumentation put forth in court and by yourself here regarding Lawrence and regarding Perry. Mutual attraction was already removed from consideration by you when you brushed aside the example of platonic friendship. It would appear that disapproval of consensual same-sex sexual conduct was brushed aside - at least that is the intended implication asserted by SSMers in courtrooms and by yourself - in Lawrence.
In an earlier comment I described genetic sexual attraction and how that fits your criteria for higher levels of scrutiny. See relatives such as the siblings in the linked story RK provide upthread which you skipped past.
If being born related is the only difference then you need to justify how that can justify the SSM ban on some same sex scenarios. Consenting adults in platonic friendship are eligible so why not such friends who happen to be related? Consenting adults in sexualized friendship are eliible so why not such friends who happen to be related. Why bar some related people but not all related people?
Focus first on the same-sex scenario as per the arguments for SSM. Later we can walk through how that would fit te husban-wife union in a legal system in which SSM would be entrenched.
You can look to Perry as precedent for this exercise if you really think that Baker dealt with sex nd would not apply to sexual orientation.
However you would need to first acknowledge the point made by OnLawn regarding want of a federal question regarding SSM. The criterion in dispute is the man-woman criterion and not a sexual orientation criterion. Indeed your earlier comment removing platonic friendship scenario from consideration has effectively put aside the complaint regarding sexual orientation since the man-woman criterion does not bar platonic friendship. Your comment about conduct has narrowed your potential use of recent precedents regarding Lawrence or Perry or even state examples of court imposed SSM.
You have bitten off much more than perhaps you had thought to chew. The contradictions are piling up.
On lawn you said: "Current legal precedent at the federal level is that marriage's requirement for both genders handles strict and rational scrutiny in the interest of preserving the rights recognized with responsible procreation." Where has the Supreme Court so stated? Certainly not in Baker vs. Nelson.
ReplyDeleteThe marriage equality due process and equal protection claim will determine if same sex marriage is a fundamental right for homosexuals and if marriage bans are discriminatory based on sex and sexual orientation. Especially since no court case has shown that marrying homosexuals will change the rights or capabilities involved in heterosexual procreation.
It is interesting that you're hanging your hat on Baker, vs. Nelson, as only a SOFT, not fully argued) by the Court precedent. Are you claiming an appeal to Supreme Court will fail because of Baker vs. Nelson? I pointed to Lawrence vs. Texas which overruled Bowers v. Hardwick.
A precedent being overruled? Can it be so?
Prior to Loving v. Virginia, there were several cases on the subject of race-mixing. In Pace v. Alabama, the Supreme Court ruled that the conviction of an Alabama couple for interracial sex, affirmed on appeal by the Alabama Supreme Court, did not violate the Fourteenth Amendment.
Scalia's dissent in Lawrence vs. Texas, appeared in Judge Vaughn Walker's ruling in Perry v. Brown supporting same-sex marriage and finding California's Proposition 8 unconstitutional: If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct...what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution" Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
The "responsible procreation" argument appears to be hanging by a thread.
In 1978, Zablocki v. Redhail, SCOTUS declared marriage to be "of fundamental importance to ALL individuals". The court described marriage as "one of the 'basic civil rights of man'" and "the most important relation in life." The court also noted that "the right to marry is part of the fundamental 'right to privacy'" in the U.S. Constitution.
In Turner Vs. Safley, SCOTS articulated four attributes of marriage common to this group and all other Americans. These attributes are:
1. expression of emotional support and public commitment;
2. spiritual significance, and for some the exercise of a religious faith;
3. the expectation that for most, the marriage will be consummated; and
4. the receipt of tangible benefits, including government benefits and property rights.
Looking at these attributes of marriage, SCOTUS decided that these Americans - incarcerated prisoners - shared with other Americans the freedom to marry.
No Responsible procreation requirement here either by SCOTUS.
On Lawn another issue we have to look at is making sure a same sex marriage law is not over or under inclusive. In other words, prohibiting same sex couples from having children (required sterilization) and adoption might be a more effective and better law that accomplishes your responsible procreation objective. What I'm suggesting here, is that if your objective is to have a law that preserves home heating for example, a law that requires only that the front door be closed, would be under-inclusive, because the back door and windows are allowed to be kept open. Courts like laws that have the best chance of accomplishing public policy objectives. What I'm suggesting is that same-sex couple sterilization and adoption ban laws 'might' have a better chance of accomplishing a "responsible procreation" public policy objective. Can you acknowledge this?
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Continued....
ReplyDeleteChairm, the sibling friendship marrying scenario, is mostly likely prevented by consanguinity law. I believe this would aslo cover cover a romantic and sexual based conduct scenario.
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I've gone off topic, the non-romantic marrying couple due process and equal protection challenge was the task at hand.
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re: Chairm, Consenting adults in sexualized friendship are eliible so why not such friends who happen to be related. Why bar some related people but not all related people?
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Can you create a due process and equal protection legal argument, by suggesting which laws prevent these couples from marrying? Then we can look at the rational basis for these laws and then determine together if they qualify as a suspect class. I'm not proposing anything new here, just looking for case law examples and both of us taking the case step by step through a due process and equal protection challenge.
Unknown: > Where has the Supreme Court so stated? Certainly not in Baker vs. Nelson.
ReplyDeleteHow are we going to walk through legal process when you have so little understanding or adherence to it?
Their decision on Baker v Nelson does say that. Re-read my previous comment that explains how it says exactly that, and how judges have interpreted it no court case has shown that marrying homosexuals will change the rights or capabilities involved in heterosexual procreation
You are once again wrong... The United States Supreme Court in Murphy V Ramsey, 114 U.S. 15 (1885) said: "For, certainly, no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co- ordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement. And to this end no means are more directly and immediately suitable than those provided by this act, which endeavors to withdraw all political influence from those who are practically hostile to its attainment."
Unknown: > It is interesting that you're hanging your hat on Baker, vs. Nelson, as only a SOFT, not fully argued) by the Court precedent.
Its interesting, but apparently not unwarranted, and not a coincidence. Feel free to re-read the above comment on the subject. It leaves no room for doubt that the decision made by the Supreme Court on the question is binding precedent.
I simply hang my hat on commonly recognized binding precedent.
I asked before how long it would take before you would even have to honestly admit your legal analysis is entirely inadequate, and even contradictory of actual legal process and precedent.
You are walking closer to that end with every new comment you write, apparently.
ReplyDeleteUnknown: > A precedent being overruled? Can it be so?
Not by a lower court :)
Unknown: > The "responsible procreation" argument appears to be hanging by a thread.
If so that would be unfortunate, that responsibility is simply the equal recognition of the rights and responsibilities of the man, woman, and child they potentially have together -- a.k.a. a very real form of marriage equality hangs in the balance.
Unknown: > In 1978, Zablocki v. Redhail
Interesting. As was observed in the Washington case,
"Plaintiffs also rely on Goodridge, where the Massachusetts court rejected the argument that procreation justified limitation of marriage to opposite-sex couples. The court said that "{t}he 'marriage is procreation' argument singles out the one unbridgeable difference between same-sex and opposite-sex couples, and transforms that difference into the essence of legal marriage." Goodridge, 440 Mass. at 333. The court held that "it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage." Goodridge, 440 Mass. at 332."
"But as Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple's willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single- sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis." -- Andersen v. King County
What this shows is that the purpose of responsible procreation is very important to understanding what the right to marriage is. The Turner v Safley opinion goes in to length how the right to marry for an inmate is preserved because there is still potential for an inmates case to be overturned later, the criminal process is not omniscient or final. It does not, as your interpretation would require, argue that a right to marry is independent of responsible procreation.
As Judge Graffeo concurring in Hernandez v. Robles states very succinctly:
"To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place."
Unknown: > What I'm suggesting is that same-sex couple sterilization and adoption ban laws 'might' have a better chance of accomplishing a "responsible procreation" public policy objective. Can you acknowledge this?
ReplyDeleteThat would help, but that would be like secondary to the purpose (as your argue a front door would be to home heating).
The primary concern is to establish an institution with the notion of equality, specifically that responsible procreation will equally recognize the rights of the man, woman, and child they potentially have together.
And if marriage can't do that because that focus is too heterocentric, then what can? Not a ban on procreation outside marriage. And certainly not a ban on same-sex reproduction (which is more of a natural science issue rather than a legal requirement).
Unknown: > Chairm, the sibling friendship marrying scenario, is mostly likely prevented by consanguinity law.
Just to show how you are arguing with yourself, I'll use only your sentences in reply.
____
In Turner Vs. Safley, SCOTS articulated four attributes of marriage common to this group and all other Americans. These attributes are:
1. expression of emotional support and public commitment;
2. spiritual significance, and for some the exercise of a religious faith;
3. the expectation that for most, the marriage will be consummated; and
4. the receipt of tangible benefits, including government benefits and property rights.
Looking at these attributes of marriage, SCOTUS decided that these Americans - incarcerated prisoners - shared with other Americans the freedom to marry.
No [consanguinity ban] requirement here either by SCOTUS.
Scalia's dissent in Lawrence vs. Texas, appeared in Judge Vaughn Walker's ruling in Perry v. Brown supporting same-sex marriage and finding California's Proposition 8 unconstitutional: If moral disapprobation of [insestual] conduct is "no legitimate state interest" for purposes of proscribing that conduct...what justification could there possibly be for denying the benefits of marriage to [incestual] couples exercising "the liberty protected by the Constitution" Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
The "incestual ban" argument appears to be hanging by a thread.
A precedent being overruled? Can it be so?
_____________
Now, granted the even better argument against that comes from Chairm who noted that you were the one that removed the romantic requirement in marriage (you denied this earlier but then he showed where you did anyway).
The short point of this is simply that you are arguing for a change in the legal precedent, and law. Then you try to appeal as if there is no ramification to other status, both on rational basis and strict scrutiny.
You are playing a self-contradictory game of expecting change, but then expecting to appeal to things as they are now -- all arbitrarily based on what you want to happen based on people's identity rather than on the principles forwarded to do so. As you said:
On Lawn another issue we have to look at is making sure a same sex marriage law is not over or under inclusive.
the sibling friendship marrying scenario, is mostly likely prevented by consanguinity law.
ReplyDeleteBut what's the legal basis for the consanguinity law, unknown? What happens if that legal basis becomes no longer applicable?
BTW, unknown, my earlier comment above was primarily meant as a challenge to those who argue for SSM on moral grounds. You have not given a response to that, rather you have decided to retreat to the issue of current legal status in order to avoid dealing with it. Not mentioning, of course, how culture (or more precisely, what is at a given time regarded as "enlightened" cultural opinion) influences legal argument and status.
Unknown, you knew that I knew the law in question is the prohibition based on consanguinity. You knew that was the law in question, at the start, and yet you asked what law was in question. You are dodging and that is a sure signal that you are adrift.
ReplyDeleteYou removed from consideration the difference between he mutual attraction that features in the sexualized friendship when you dismissed from consideration the platonic friendship which features mutual attraction - intimate and affectionate but not sexual. That differece stands as an illegitimate basis for banning some people from SSM, according to your view of how the law operates.
You dealt with that first. It is your precedent.
That contradicts the pro-homosexual complaint that the man-woman criterion is a ban (implied ban but not an explicit ban as per Perry) based on sexual attraction. It is not a ban but a legal requirement of inclusion of both sexes. The individuals might be sexually attracted or not as your view has it.
Baker stands as bindng precedent and you must acknowledge that and deal with it before relying on Perry which failed to do so.
Meanwhile you brought up disapproved conduct. Before you proceed further you owe this discussion a direct answer. What conduct di you have in mind regarding the related people and eligibility?
If you do not provide your answer, then, that will be taken as your third refusal to take a swing at a ball lobbed through the strike zone. You will not get a fourth ball and you will not walk to first base. You will be struck out across the very pate you posed as wanting others to focus on.
The conduct must be legally required as per your remarks about procreation. No exceptions, niether real nor apparent. That conduct must be in common to both the sexualized and the platonic same-sexed scenarios.
If disapproved based in consanguinity, then, it cannot be due to procreation nor due to mutual attraction (whwther sexual or platonic) nor due to an arbitrary dependence on an inborn characteristic or immutable trait. Consanguinity is clearly both inborn, beyond choice, and immutable.
There is binding precedent. Such is not "soft" even if Unknown would like to put that gloss on Baker. But consider the soft removal from consideration that Unknown sed on platonic friendship. That is his binding precedent within his own stated viewpoint.
ReplyDeleteThe problem with Baker is that United States Supreme Court dismissed the appeal "for want of a substantial federal question." You need to acknowledge that Baker v. Nelsons value as a precedent is up for debate. For example, In her confirmation hearings, Sotomayor refused to recognize the 1971 Baker vs. Nelson case as a binding Supreme Court precedent that would forbid the recognition of gay marriage at the federal level. -
ReplyDeleteA substantial federal question would is a due process and equal protection claim. At the time of Baker, no states allowed same sex marriage, and DOMA (a federal issue) did not exist. These two facts alone, demonstrate that now indeed, there is a federal due process and equal protection question. Do you know how many appeals to SCOTUS there were on miscegenation laws before Loving, vs. Virginia?
On Lawn How do you distinguish the ruling in Gill v. OPM (Mass 2010) which found that DOMA does not pass constitutional muster even under rational basis scrutiny? Moreover, what your authority that opposite sex marriage is fundamental rather than the right to marriage in general?
ReplyDeleteAndersen v. King County failed to address the question “Would giving same-sex couples the same right that opposite-sex couples enjoy INJURE the state’s interest in procreation and healthy child rearing?” This answer should address your concern ".... to establish an institution with the notion of equality, specifically that responsible procreation will equally recognize the rights of the man, woman, and child they potentially have together."
In Varnum v. Brien 2008 "The Iowa Supreme Court stated that the equal protection clause of the Iowa Constitution requires that laws treat alike all those who are similarly situated with respect to the purposes of the law, and concluded that homosexual persons are similarly situated compared to heterosexual persons for purposes of Iowa's marriage laws. Moreover the court said "We are firmly convinced the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective. The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification."
Whoa "Chairm noted that you were the one that removed the romantic [legal] requirement in marriage" I removed it? How so? Did it ever exist? Am I wrong? I'll stand by existing law, I'm not inventing something new or that you did not already know about.
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Chairm, I think RK understood the issue and has got right to the point.
R.K. said...
the sibling friendship marrying scenario, is mostly likely prevented by consanguinity law. But what's the legal basis for the consanguinity law, unknown? What happens if that legal basis becomes no longer applicable?"
I say Thank YOU RK.. and that is indeed the issue. I suggest that the court would only need to show a rational basis for the consanguinity law at issue, unless the parties qualified as a suspect class, they the government would have to show more of a specific and concrete public policy objective that was served by denying those couples the ability to marry.
Chairm said: "Meanwhile you brought up disapproved conduct. Before you proceed further you owe this discussion a direct answer. What conduct di you have in mind regarding the related people and eligibility?" Chairm, what does the law state? You know the answer to that already. The real issue is what RK noted above.
Can you provide the citation and/or authority to back up your claim that "That conduct must be in common to both the sexualized and the platonic same-sexed scenarios." Any court ruling or case law? You still refuse to walk a due process and equal protection claim through to completion. At least RK got closer to the heart of the issue. I'm still waiting for you to pick one, and lay out your due process and equal protection claim. [unknown taps foot while waiting]
RK said: "Not mentioning, of course, how culture (or more precisely, what is at a given time regarded as "enlightened" cultural opinion) influences legal argument and status."
I would agree here, pointing to how laws based on race, the suffrage movement with the understanding and new facts today.
I asked: "But what's the legal basis for the consanguinity law, unknown? What happens if that legal basis becomes no longer applicable?"
ReplyDeleteYou're response (not an answer):
I say Thank YOU RK.. and that is indeed the issue. I suggest that the court would only need to show a rational basis for the consanguinity law at issue, unless the parties qualified as a suspect class, they the government would have to show more of a specific and concrete public policy objective that was served by denying those couples the ability to marry.
Now, I ask again, post-SSM, what "rational basis" would apply for denying a marriage license to two same-sex siblings?
RK said: "Not mentioning, of course, how culture (or more precisely, what is at a given time regarded as "enlightened" cultural opinion) influences legal argument and status."
I would agree here, pointing to how laws based on race, the suffrage movement with the understanding and new facts today.
But can you explain to me what rules out a similar process happening to cause the culture, and then the law, to decide that the rule against close relations marrying was also outdated and had to be dropped, suspect class or not? (Please note that while Judge Walker did raise orientation to a suspect class in his ruling, the Supreme Court has not done so yet). People can't help being born as close relations, can they?
Also, unknown, you are obviously pursuing a divide-and-conquer strategy here by trying to draw a wedge between me and Chairm.
ReplyDeleteAnd you still have not dealt with the issues I raised relating to the couple in my first post above. You're still hiding behind the law alone even while acknowledging that culture can influence the law. If you can't give a good enough reason why the couple should not be married that does not rely primarily on arguments parallel to those you would certainly claim were not sufficient when used against SSM, eventually the law will see that such arguments are no more sufficient either, whether it uses the reasoning of "suspect class" or not.
You ask: Moreover, what your authority that opposite sex marriage is fundamental rather than the right to marriage in general?
What is your authority that marriage between two unrelated persons is fundamental rather than the right of marriage in general?
On Lawn called it accurately here:
The short point of this is simply that you are arguing for a change in the legal precedent, and law. Then you try to appeal as if there is no ramification to other status, both on rational basis and strict scrutiny.
You are playing a self-contradictory game of expecting change, but then expecting to appeal to things as they are now -- all arbitrarily based on what you want to happen based on people's identity rather than on the principles forwarded to do so.
Unknown: > You need to acknowledge that Baker v. Nelsons value as a precedent is up for debate.
ReplyDeleteAnd your proof that you are a legal quack continues...
There is no weakness in its binding precedent, to repeat even the Wikipedia acknowledges...
"In most cases presented to the U.S. Supreme Court, the Court's refusal to hear the case is not an endorsement of the decision below.[14] However, since this case came to the Court through mandatory appellate review, the summary dismissal is a decision on the merits of the case.[15] As binding precedent, the Baker decision prevents lower courts from coming to a contrary conclusion when presented with the precise issue the Court necessarily adjudicated in dismissing the case.[16]"
The scope of its precedent is up for debate. For instance the bankruptcy court discussing DOMA wondered if it had precedent.
However, there is no question it has precedent.
Unknown: > Do you know how many appeals to SCOTUS there were on miscegenation laws before Loving, vs. Virginia?
Your appeal to the possibility of change is simply an admission that for now the process supports man-woman as a valid requirement for marriage.
Unknown: > [T]he ruling in Gill v. OPM (Mass 2010) which found that DOMA does not pass constitutional muster even under rational basis scrutiny?
No, I'm not here to follow your contradictions and try to rationalize them.
You were the one who said almost any rational basis "might likely work" on challenges of equal protection under the law. For incest marriages, you even said (even though it contradicts your use of Scalia's dissent in Lawrence) "Simple disapproval of the conduct might even uphold the law".
Unknown: > How do you distinguish the ruling in Gill v. OPM (Mass 2010) which found that DOMA does not pass constitutional muster even under rational basis scrutiny?
How do you distinguish the ruling by the California Supreme Court on Prop 8 and the Washington Surpeme Court (Anderson) which found that the requirement of both genders passes strict scrutiny on a more stringent state equality clause on the 14th amendment.
On the Indiana case, you'll note their opinion on Baker v Nelson (which follows Goodridge) that there was no 14th amendment claim made to require reconciling it with the 14th.
Unknown: > Whoa "Chairm noted that you were the one that removed the romantic [legal] requirement in marriage" I removed it? How so?
Easy, you said "The two opposite sex marrying friends could probably marry today as they have been able to do so in the past."
There is no romantic requirement when "friends could probably marry".
But I'll also take this opportunity to show that marriage does have a romantic expectation. This is most fully prosecuted against weddings to facilitate immigration.
Two platonic friends are not enough to satisfy immigration.
Unknown: > I'll stand by existing law, I'm not inventing something new or that you did not already know about.
The last person who claimed they were doing something they obviously were doing was banned for lack of basic intellectual honesty.
Why should I let you continue when I banned the other?
At this point I'm not sure you have a consistent legal position to present. You are contradicting yourself on almost every point you've made.
sorry, to correct, "who claimed they were doing something they obviously weren't doing"
ReplyDeleteUnsurprisingly, Unknown has struck out without taking a single swing at the balls lobbed through the strike zone. The question has remained unanswered regarding the disapproved conduct Unknown had in mind regarding the SSM ban on some related people of the same sex.
ReplyDeleteThat ban is supported, arbitrarily and thus unjustly, by proponents of SSM where SSM has been imposed and where the gay identity group is far more politically powerful than those related people who are banned from SSM due to the proSSM reliance on an inborn characteristic and immutable trait. That reliance has not been justified by SSMers but their proSSM arguments scream against the SSM ban against related same-sex scenarios.
That is so regardless of Unknown's unclarified remark, and subsequent nonanswer, about disapproved conduct. He no longer stands at home base and now returns to the dugout due to three pitches and not a single swing at the ball. His focus, such as it might be, is not on the topic of the original blogpost nor on ON Lawn's straight forward query.
Indeed, Unknown's commentary has left the ballpark.
re: "What is your authority that marriage between two unrelated persons is fundamental rather than the right of marriage in general?" The Supreme Court ruled marriage to be a fundamental right 14 times. Now can you kindly answer the question I posed?
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"Now, I ask again, post-SSM, what "rational basis" would apply for denying a marriage license to two same-sex siblings?"
Now I ask again, what would be the due process and equal protection claim regarding the law in question. I'm suggesting that your question would be a due process and equal protection issue before the court and if the consanguinity law could be supported though rational basis.
I think that is a better way to frame your question: How the complaint might appear before the court. However, we apparently can't even agree on the question or that it would be a due process and equal protection issue. What is the rational basis for a law that prevents two same sex or opposite sex siblings from getting a marriage license. If I'm correct, and please double check me, if the relationship were assumed to be sexualized, then the rational basis "might" be for incestuous rationale. If platonic, the close family relationship "might" be the rational basis for the consanguinity law, and the couple would be denied a marriage license. What other scenario in existing law do you see that I've missed?
Do you have any real life Post SSM examples from states where siblings are making a due process and equal protection challenge? What are their arguments?
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Your point about immigration law shows where a romantic expectation might be enforced. Legal US residents apparently can skirt these enforcement provisions.
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Chairm, Unknown has struck out without taking a single swing at the balls lobbed through the strike zone. The question has remained unanswered regarding the disapproved conduct Unknown had in mind regarding the SSM ban on some related people of the same sex." Political Power is not an absolute by the way, I could give you case law. For most people sexual orientation is an immutable characteristic, identity like the freedom to choose one's religion might not be.
Chairm, I've repeatedly tried to get you to frame your argument as a due process and equal protection challenge before the court walking it through each step of the process, for rational basis and the correct standard of review. You have not agreed to use my proposed framework on how your arguments might appear before the court. These arguments most likely would wind up as due process and equal protection challenges anyway, in my way of thinking. Right or wrong, I just cannot proceed any other way.
Regarding Baker v. Nelsons "binding precedent" and "the Baker decision prevents lower courts from coming to a contrary conclusion." I'll leave it to the 9th Circuit Court of Appeals ruling on Prop 8's constitutional merits to come in about 4 weeks or so. Cooper has thrown everything including the kitchen sink at the 9th, including Baker vs. Nelson. If they do indeed hold to Baker vs. Nelson, I would kindly request to be allowed to come back and apologize for my irrational Baker argumentation. I'm hoping I won't have to eat crow if Baker is determined to be binding precedent.
I don't see any further progress in continuing discussion. I acknowledge the validity of some state case law upholding DOMA and support for man-woman marriage definitions. Only time will tell if they will stand due process and equal protection challenges. The first indication might come when the 9th circuit court of appeals rules on Prop 8. So far SCOTUS has not granted Certiorari on narrow state by state marriage-equality rulings. It will be interesting to see how broad or narrow the ruling might be.
Unknown" : > Regarding Baker v. Nelsons "binding precedent" and "the Baker decision prevents lower courts from coming to a contrary conclusion." I'll leave it to the 9th Circuit Court of Appeals ruling on Prop 8's constitutional merits
ReplyDeleteSee, there you go again. In latest comment you "ask again, what would be the due process and equal protection claim regarding the law in question." But when presented with how things are now you appeal immediately to an unknowable future.
Just noting, once again, that your arbitrary gaming is evident in your self contradictions. That is evident even without waiting for the 9th circuit.
Here's what the court has said about such rulings, from the footnote in the Wikipedia stating it is binding precedent...
"See, e.g. Mandel v. Bradley, 432 U.S. 173, 176 (1977) ("[D]ismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction.... They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions."); see generally Note, The Precedential Effect of Summary Affirmances and Dismissals for Want of a Substantial Federal Question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley, 61 Va. L. Rev. 117, 118 (1978)."
You do realize that the inability to predict the effects of changing precident to remove the equality of marriage, the man-woman criteria which points directly to our rights and responsibilities in procreation, to promote sex-segregation as marriage.
If you don't know the effect, and you have no ability to even formulate an argument for such a case one way or another in light of that change... if that seems to be your best defense against R.K.'s original question, then R.K. can clearly be given this round of argument.
Your flying blind, hopelessly trying "mak[e] sure a same sex marriage law is not over or under inclusive" based solely on your own judgement of the victimhood of the people asking for inclusion.
And as I've noted already, arbitrary judgements on the identity of the people involved is exactly what the 14th is meant to protect us from. In your exercise we already see that you are turning the 14th into the exact opposite of what it is meant to be.
The Supreme Court ruled marriage to be a fundamental right 14 times. Now can you kindly answer the question I posed?
ReplyDeleteSo, what are you arguing that "fundamental" means? With no exceptions? Or are you really saying, "it's a fundamental right, except where it isn't"? And your question has already been answered here. Your argument is that you think it should be revisited, and that you believe and hope that the precedent of Baker will be overturned.
Yet when the question is raised as to whether or not other pairings not currently allowed to marry might be allowed to in the future, you hold to the notion that if a court might currently rule against such pairings being granted the "right" to marry based on rational basis and the lack of a due process or equal protection issue, that this seals the issue for good, and no later court will overturn such a ruling. But this is totally inconsistent reasoning on your part.
What is the rational basis for a law that prevents two same sex or opposite sex siblings from getting a marriage license. If I'm correct, and please double check me, if the relationship were assumed to be sexualized, then the rational basis "might" be for incestuous rationale. If platonic, the close family relationship "might" be the rational basis for the consanguinity law, and the couple would be denied a marriage license.
Need I give further examples of your inconsistent reasoning here? In defense of the requirement that marriage requires both genders, would you find it acceptable if I said "the rational basis might be the link between marriage and procreation"? (Which essentially is how several state courts have ruled). Didn't think you would. Yet here, in trying to explain why we should not worry about future courts ruling to extend marriage even beyond where you want it to go, you talk as if one ruling against this should end the debate. What's more, the rational basis arguments you contend "might" be used (which I've highlighted in bold) could very easily be shown to have no rational basis behind them, especially once you take procreation out of the picture, which of course all SSM advocates contend must be done anyway for their sake. (Indeed, your two "rational basis" arguments sound almost totally tautological once the procreation basis for marriage is removed).
It is good that Unknown has acknowledged the strike out. As a parting gesture intended to excuse the strike out, Unknown pointed not to conduct but to something else.
ReplyDeleteAnd, as it happens, that something else undoes the arguments put forth by SSMers in favor of SSM and against the marriage criterion of man and woman.
There are several significant examples but for this discussion Unknown provided an example at the getgo.
Unknown offerred an assumption of a sexualized type of relationship but that assumption was already removed from consideration by Unknown when the platonic relationship was acknowledged as eligible. So what is the conduct that is present in the platonic relationship but which would be disapproved in the sibling relationship?
Conduct? What nonsexual conduct? Unknown failed to plainly say.
As for sexual conduct, well, the prototypical siblin friendship is not sexualized; and the vast majority of sibling relationships are neither sexualized -- nor assumptively in conflict with the notion of kinship and family (to state the obvious).
Actually, Unknown's remark about the close family relationship is far too vague to stand as even a half hearted attempt to answer the questions posed by RK much less the query I posed regarding the disapproved conduct that Unknown had in mind. Inded Unknown strongly suggested circular thinking.
The more apt assumption is that since SSM, at law, would not be a sexual type of relationship it is reasonable to assume that the platonic relationship of most siblings is eligible to SSM unless something other than being related is at issue. Falling back on consanguinity would be arbitrary.
Given SSM argumentation in court, there is good reason to assume nefarious conduct within the sibling relationship. To the contrary, the intimate and affectionate nature of conduct the relationship merits eligibility to government approved licensing,so say SSMer in court.
Of course SSMers claim special consideration for the gay identity group. But if the assumption of a sexualized relationship entails approval and disapproval of conduct, then, SSMers have a lot of explaining and backtracking to do.
The real issue is the type of relationship the law would license and accord special legal status. The boundaries are justly drawn around that rather than drawn around lawed assumptions about other types of relationships that populate the nonmarriage category. For SSM there is the nonSSM category but SSMers offer arguments that fail to distinguish SSM as a type of relationship that justly excludes the rest of nnmarriage. Vague handwaving about consanguinity does not do the trick.
Typo corrections:
ReplyDelete"Given SSM arguments in court there is no good reason to assume nefarious conduct in the sibling relationship."
And:
"so say SSMers in court."
Siblings need not claim suspect class status for an application of elevated standard of scrutiny, but genetic sexual attraction might be one way of claiming
a suspect class.
It depends on both sexual attraction and consanguinity which fit Unknown's parting remark about an inborn characteristic and immutable trait. It is not something never eperienced by human beings across the millennia. Here the attraction would be between consenting adults.
Typo corrections:
ReplyDelete"rather than drawn for flawed assumptions about types of relationships that populate the nonmarriage category".
"fail to distinguish SSM as a type of relationship that would justly exclude the rest of nonmarriage".
I'll add that SSMers have fixated on the gay ientity group and on their homosexual emphasis; that is the basic reason they have focussed so much n what marriage is not rather than on what SSM might be. SSMers goon about reasons to include but they arbitrarily claim that the boundaries of marriage (which arise from the two-sexed sexual nature of the husban-wife relationship) might justly apply to thetype of scenario that lacks the other sex. They look outside of marriage t assert a claim for the gay identity group but are flummoxed when challenged to justify (rather than merely assert) boundaries of eligibility and ieligibility to SSM.
Playful Walrus correctly emphasized types of relationships. The missing graphic for the related and the polygamous and the polyandrous types of relationships speaks pretty loudly.
R.K. They are not arguing a fundamental right to marriage, just the fundamental right to redefine it. I still don't know why they simply strike out all marriage laws if it was truly unconstitutional. Really the courts can only approve a law or strike it down, it can't rewrite it or add to it.
ReplyDeleteI would like to see a court ban all marriage due to it's definition and see what happens.
Remember we only have the right to marriage, because we happen to have laws about marriage. But we don't need laws on marriage. Marriage existed well prior to civil registries, when they were only recorded in religious institutions along with baptisms.
ReplyDeleteIf marriage was a mere religious ideal, maybe our civil legislators should just give it back to them?
Renee,
ReplyDeleteI know quite a bit about record keeping during the post-renaissance. I know enough about the middle ages.
I can say that births as well as deaths were recorded by religions in Europe. The government didn't record much about people at all that didn't have to do with money. People also kept their own records at times on those events.
Religions during that time were also the creators of universities, and many public works projects.
But that doesn't make birth, or marriage, or death, education or public works a religious institution. They were simply the only ones with the organization in all the peasant towns and the education at the time to do it.
Marriage is a government institution. It is next only to self governance as expressions of individual responsibility, and pursuit of happiness. The government recognizes the home as a unit of governance, or a political unit.
It is the government recognized rights associated with having and raising children, (or for the children in knowing their parentage and being raised by them where possible) that I'm in this for. That can't be preserved unless recognized by the government itself as an institution for responsible procreation.
On Lawn, Yes those are good points, but sometimes bring that issue up helps us understand where someone else is coming from. If one argues that government shouldn't say who can or can't be married, then why even have a legal status for it.
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