I apologize, I seem to have missed this post.



The intimate nature of marriage created via this fundamental purpose, which does include sex, requires that the government not be able to pry into a couple's sex life.



Yes, we are talking about humans and humans are animals... and you are still talking about intimacy and privacy as if they were mutually exclusive.

Sex may require privacy, but it doesn't necessarily require intimacy - certainly, it doesn't require the intimacy that is intended in marriage. The intimacy in marriage serves this much larger purpose - it helps to foster this ideal environment for children. People didn't need to create marriage in order to procreate, they needed to create marriage to prepare for the result of procreation.

That still doesn't answer the question. What leads you to say that this fundamental purpose (providing an environment for raising children) includes sex? What does one have to do with the other?

[quote name='Blackstone' date='Jul 14 2006, 04:59 PM' post='191809']
The intimate nature of marriage created via this fundamental purpose, which does include sex, requires that the government not be able to pry into a couple's sex life.[/quote]
That still doesn't answer the question. What leads you to say that this fundamental purpose (providing an environment for raising children) includes sex? What does one have to do with the other?
[/quote]

I didn't say that the fundamental purpose includes sex. I said that the intimate nature of marriage includes sex. Perhaps my grammar is off and that confused you in this instance, but I never stated that the fundamental purpose included sex.

Perhaps I should have been clearer with my grammar:

The intimate nature of marriage - created via this fundamental purpose and which includes sex - requires that the government not be able to pry into a couple's sex life. So there is your relationship to marriages fundamental purpose. It is also related to the fundamental purpose because sex is one of the ways in which children are introduced into a married relationship. This does not, however, make procreation a fundamental purpose in marriage. Again, it's about the result of the procreation.

OK, so that necessitates a small alteration in my question. What is it about this fundamental purpose (providing an environment for raising children) that necessarily brings about the intimate nature of marriage? Is marital intimacy necessary for creating this child-rearing environment?

You really have convinced yourself of this. When the courts disagree with your point and state that (same sex) marriage is not a fundamental right, you say that they are 'wrong.' When the law is vague and gender-neutral (because - duh - no one in 1930 expected Bob and Doug to get 'married') you celebrate the vagueness and state "150 years of gender neutral marriage contract law."

I really do respect your argument and wouldn't mind having it on the merits. The thing is that you are not willing to have that discussion. 45 out of 50 legislatures have expressed America's opinion and you dismiss it. Apparently, we are no longer allowed to define laws. Thank G-d that the NY courts finally agreed - America can write laws in their legislatures, even if entspeak disagrees.

I think that reasonable people can conclude you're just reaching here.

Well, I don't think that the fundamental purpose necessarily brings about anything. We are talking about a goal, an aim, an ideal. I believe the aim was to create an ideal environment in which to raise children – to whatever end that might have served... social, political... whatever. I believe that binding two people together financially, socially and religiously created an intimacy that was not found in other types of relationships.

Is marital intimacy necessary for creating this child-rearing environment? Because marital intimacy is obviously not necessary for creating a child-rearing environment, but this ideal environment? I'd say that it is. This is not to say that it is always successful, but that is the aim, that is the hope.

It is this aim and this hope that makes marriage a fundamental right separate from procreation – which is also a fundamental right.

Carlitoswhey,



No luck with that? Man, you'd think if civil marriage – a legal contract – was about procreation, there would be some law associated with the contract that dealt solely and directly with procreation.



And I'm sure nobody in 1930 expected sodomy laws – the only law on the books that kept same-sex couples from engaging in the legal contract of marriage – would be repealed either. I believe that most of the courts are not looking at what makes marriage a fundamental right – they aren't willing to look at what it's really about. Interestingly enough, they are willing to say that it's not interracial marriage, it's marriage... it's not inmate marriage, it's marriage... but when it comes to same-sex marriage, suddenly there's same-sex marriage and then there's marriage. I disagree with that. Marriage is a fundamental right for a reason... marriage's fundamental purpose can be achieved without the married couple ever procreating.



As I have stated previously... in 1948, when the California Supreme Court became the first court to rule that interracial marriage was unconstitutional, 90% of Americans opposed interracial marriage and 39 states had laws on the books banning it... 6 of whom did so via their State Constitutions. Now, I'm sure someone who heard about the Perez case before it went to trial might have said, "Thank God America can write laws in their legislature even if Perez disagrees." But, how did that turn out? Are you claiming that somehow that bans on interracial marriage was constitutional before Perez? Because 90% of Americans believed so and 39 legislatures believed so... was it constitutional?



I think it is possible to have the vast majority of people believe in a thing and to have the vast majority of legislatures supporting that belief in their laws and to have them all be wrong. History shows us that this is possible. So, I just might not be reaching here. And the inability to answer the questions of this debate might lead reasonable people to conclude that there is something to my argument.

But how so? Certainly I can see how it's necessary for the two (or three or more) child-rearers to care about each other, so that there really is an actual family environment, but is intimacy necessary for that? Say two siblings are raising a child. Having grown up together, they (usually) will have an attachment to each other, but won't have a need for any intimacy of the type traditionally associated with married couples. Would their lack of this kind of intimacy create a disadvantageous situation for child-rearing? In what way?

Obviously the type of intimacy between siblings and the intimacy between married couples is different. Same-sex couples are just as capable of legally engaging in all aspects of marital intimacy as opposite sex couples, whereas siblings are not. Same-sex couples raise children and are only prevented from adopting in one state... in fact, in some states it is even illegal to take the sexual orientation of a couple into consideration when it comes to adopting a child. So, in terms of creating an ideal environment for children that is equal to that of an opposite sex-married couple, a same-sex couple is capable of that - the California case cited by Amlord even mentions that fact.

So, again, we are talking about an ideal for raising children. There are other aspects of marital intimacy that siblings are not legally allowed to engage in. All aspects of marital intimacy play some role in achieving this ideal environment. Even though we - hopefully - never see our parents having sex, their sex life... their attraction for one another and the quality of it has an effect on the environment in which we are raised. As children we learn from the manner in which our parents interact... romantically (for lack of a better word). If they have a happy romantic life, this spills over into other aspects of the marital relationship. We, as children, witness this... we see our parents cuddling on the couch, we see the way our parents look at one another... and we learn how to communicate with potential partners. We also see, hopefully, how a successful marriage works. Children in successful marriages, I would think, would be more willing to engage in the institution themselves.

And, as a side note, marriage is a fundamental right for incestuous couples as well... it is. And if incest laws are ever repealed, the government could not constitutionally prevent an incestuous couple from marrying. We have the right to marry the person of our choice - that is our right. The extent to which the government can limit that choice is constitutionally limited.

Don't you see the irony here?

You say that incestuous couples cannot marry because their behavior is illegal, even though (from your point of view):

1. there is no need to expect sex from a married couple.
2. there is no expectation of procreation among a married couple.

Furthermore, you allow that the government can restrict a "fundamental right": just not directly. It can exclude same sex marriage via sodomy laws, it can exclude intra-family marriages via incest laws, but it cannot do the same thing directly via a definition of marriage? That logic baffles me.

Can you show me how the State legally expects a married couple to have sex? That's how the State regulates marriage... through the laws, so... where is that one? And more importantly - as this is also one of the original questions in this thread - Can you show me how the State legally expects a married couple to procreate? It does neither. I mean, one could argue that because sex plays a part in marital intimacy that there is some assumption on the State's part that a married couple will have sex because, as I stated previously, a healthy sex life assists in maintaining this ideal environment in which to raise kids - which is the fundamental purposes of marriage dating back to when marriage began... but there is no legal expectation. Just as there is an assumption by the State that married couples will raise children, but there is no legal expectation that they will ever do so.

So, no, there is no expectation that a married couple will have sex - not from the State's point of view, but there is such a thing as marital intimacy and the State, in offering marriage, assumes that this marital intimacy exists. Part of this intimacy deals with sex and this aspect of marital intimacy plays a role in maintaining this ideal environment in which to raise children. So, the State, while not legally expecting married couples to have sex, assumes via the intimate nature of marriage, that sex may occur and the State can't intrude upon that sexual relationship... it can't prevent it. There is the difference. And this difference as it relates to incestuous couples is important because the State currently does claim an interest in preventing incest and it does support that claim with a law banning incest. The State does have a valid interest in upholding the laws in this country and it is necessary to prevent incestuous couples from marrying in order to further this interest in upholding the laws that ban incest. Why? Because the State can't prevent a married couple from having sex - regardless of whether the State expects a married couple to have sex or not, it can't prevent it. There... that meets the strict standards for that allow the State to violate an individual's fundamental right to choose who they will marry if that choice is the individual's mother, brother, sister, or dad.

If incestuous marriage is allowed, then incest laws become meaningless.

The same could be said of same-sex marriage and sodomy laws in California prior to 1976.


I never said anything of the kind, Amlord. The government can certainly restrict a fundamental right directly, but it has to actually have a valid interest related to the restriction and that restriction has to actually be necessary in order to further that interest.

If the State has a valid interest in restricting marriage by limiting it to couples of the opposite sex and that restriction on marriage is necessary in order to further that interest, then... yes, the State can restrict marriage via a definition of marriage.


The irony lies in civil unions and domestic partnerships. Civil unions and domestic partnerships are being offered as a way to protect the institution of marriage, what's ironic is the fact that they actually have the opposite effect.

US Eighth Circuit Court upholds Nebraska's Constitutional ban on same-sex marriage (§ 29), reversing Federal District Court judge.

If there is no constitutional right to same-sex marriage, that is, if a statutory prohibition satisfies
rational-basis review, then § 29 likewise survives rational-basis review. We hold that
§ 29 and other laws limiting the state-recognized institution of marriage to
heterosexual couples are rationally related to legitimate state interests and therefore
do not violate the Constitution of the United States.

The judgment of the district court is reversed and the case is remanded with
directions to dismiss Appellees’ complaint with prejudice.

I invite y'all to read the entire decision.

The couple did not assert a right to marry.



They attempted to argue that the Constitutional amendment denied them access to the political process. The court relied, therefore, on the same standard of review used in Romer... a rational basis standard as opposed to a strict scrutiny standard. The court admits, interestingly enough, that when it comes to a rational basis standard, the court can't "judge the wisdom, fairness, or logic of [the voters’] choices."

The court also refers to the restriction regarding incestuous couples as being related to a rational basis standard of review, when in fact... if incest were legal... it would require a strict scrutiny analysis in order to uphold a ban on incestuous marriage.

Entspeak, do you realize how inane you sound? The Plaintiff's challenged the prohibition against gay marriage. Yes, they asserted the right to marry, and claimed that being denied that "right" prevented them from participating fully in the political process. If they aren't asserting the right to marry, then how can the Nebraska DoMA possibly harm them?

I suggest you read the decision. The case considered jurisdiction (where the Appellate Court agreed with the District Court, i.e. there was legitimate jurisdiction), Equal Protection, Bill of Attainder, and finally, First Amendment, to which you refer.

As for not being able to participate in the process, here's what the Court had to say about that argument:

Appellees did not raise a First Amendment claim in the district court or on
appeal. In any event, if the question is properly before us, we conclude that § 29 does
not violate the First Amendment because (i) it “does not ‘directly and substantially’
interfere with appellees’ ability to associate” in lawful pursuit of a common goal, and
(ii) it seems “exceedingly unlikely” it will prevent persons from continuing to
associate. Lyng v. Int'l Union, 485 U.S. 360, 364-66 (1988). The district court cited
no case supporting its suggestion that the First Amendment right “to petition the
Government for a redress of grievances” is violated by an enactment that makes it
more difficult for a group with full access to the political process to successfully
advocate its views. The First Amendment guarantees the right to advocate; it does not
guarantee political success.

Not to make your statements appear inane, but perhaps you should re-read the decision. I was not making reference to the First Amendment analysis. I quoted the case in my previous post. I will requote it now:



Of course, perhaps you're right and they simply mistyped the decision.

But all that's getting circular. If, as you say, the role of a marital relationship is to show children how to be in marital relationships, then ultimately what does it matter whether that relationship is romance-based or family-based? If two (or more) siblings are raising two (or more) children, then presumably they'd be showing those children how to form a stable household for raising whatever children they might happen to adopt.

Now I'm only predicating this analysis on what you've laid down, which is that sex is only an effect of the fundamental purpose of marriage, not part of that fundamental purpose.

It is part of the role of a marital relationship, it is not the role and I never said it was the role. And, I never claimed that showing children how to be in a marital relationship was the only role of the marital relationship. I was merely answering your question as to how the intimacy between siblings and the intimacy between married couples differ and the effect of this difference on the environment in which children are raised. The problem is that you have taken an answer about a particular aspect of the marital relationship and claimed that I am somehow stating that this is what marriage is all about, when I have made no such statement. So, you are creating the circular argument by taking my answers out of context.

You are making it out as if marriage is either all about sex or it is not at all about sex. It is neither of these extremes. As DaytonRocker pointed out, sex does not make up the entirety of marital intimacy, but it is a part. And in terms of marriage, as Amlord stated, sex between a married couple does not play a necessary role in introducing children into the marital environment. It does, however, play a necessary role in maintaining an ideal environment in which to raise children.

Whether it's the only role or only one of the roles doesn't alter the point I was making. The bottom line for the purposes of this exchange is that it's the role under examination here. So the point still remains, that if two (or more) siblings are raising two (or more) children, then presumably they'd be showing those children how to form a stable household for raising whatever children they might happen to adopt. In other words, a romantic-based marital relationship may show children how to maintain a romance-based marital relationship, and a family-based marital relationship may show children how to maintain a family-based marital relationship.


No I'm making it out as though sex (procreation, really) is either central to the purpose of marriage, which happens to be my view, or that it's a derivative of that fundamental purpose, which is the view you've expressed. If it's the latter, then you're saying that sex is only a means to an end (namely, providing children with a stable environment to grow up in that would show them how to provide a similar environment for children that they raise). That being the case, I'm trying to get you to explain why you think it's a necessary means to that end, when I showed you an alternative marital basis that would appear to accomplish the same goal. At least you haven't shown how it wouldn't accomplish it.

A married couple is a family, so it shares the same type of intimacy as siblings do in that regard, but there is more to a married relationship. I have already explained that.



How is procreation between married couples a necessary aspect of their marriage? Explain how that is?

But what you haven't explained is why this extra something is necessary for raising new generations. If both models of child-rearing do the job of providing a stable environment and showing how to do so for the next generation, what more is necessary?


I didn't say it was a necessary aspect of each and every marriage. I said it's central to the reason why marriage is the recognized institution that it is.

Explain how procreation is a necessary aspect of even some civil marriages. That might suffice.



So, it's central to the reason, but it isn't the reason itself. Is that what you are saying? So what is the reason why marriage is the recognized institution that it is?

Even that isn't what I said. I said that (from a societal standpoint) marriage is a necessary or at least highly advantageous aspect of procreation, not the other way around. It exists as a framework in which procreation can take place in a stable and beneficial manner. If it happens without procreation, that usually isn't a problem, as long as it doesn't undermine the model that was set up for it.

So it isn't that procreation is a necessary aspect of marriage, it is that marriage is a necessary aspect of procreation? So, procreation occurs in an unstable manner outside of marriage? How does marriage provide stability for procreation? Does it make the room more comfortable - the optimum temperature for sperm survival? Does marriage lower the pH in the vagina to a "highly advantageous" level thereby providing an optimum environment in which sperm can swim to the ovum? What type of stability are you referring to and how does marriage provide it?

I don't recall saying that at all. My stance is marriage is the foundation for procreation - right or wrong. We allow people to collect the benefits and not criminalize people taking those benefits without procreating to keep the government out of our bedrooms. Statistically speaking, those couples will have children.

Now, if you are saying procreation is not a basis for marriage, then sex has as little do to with marriage as taking baths in a tub full of jello. That becomes arbitrary behavior between two consenting adults.

I think you are trying to have it both ways to make an argument, but I really can't find any consistency in your stance. I've been saying that if marriage and children are mutually exclusive, get rid of marriage. We don't need the government legislating our private lives.

Well, I’m digging into the Illinois marriage law and I see parts of the it that are related to procreation:





Not to mention this doozy:


Is there another obligation or benefit in marriage that is associated exclusively with procreation apart from assumed paternity?
I don’t know. I’m also not following the logic as to why you ask, but I just don’t know.

If the government allows a couple to marry that it knows can't procreate, can it deny marriage to a same-sex couple because they, as a couple are unable to procreate? If so, why?
Of course it can. The difference is simple. There is no “proof” of procreation required to marry. In other words, it is not a positive test. Contrast with driving –you pass the test and you get your license. There is no test to pass before marriage. You merely have to not fail the various negative tests – age, relation, residency, etc. I don’t think that we voters will ever ask the government to test people for their ability to accomplish any particular aspect of the marriage contract prior to marrying.


I’m sure that nobody in 1930 thought for two seconds about sodomy laws. If you are asserting that most people, if you walked up to them in 1930 and asked “why 2 boys can’t marry,” thought to themselves, ”hmm…that would violate Georgia’s Sodomy Law.” I don’t buy it. I'm sure you would get some colorful responses, but I doubt sodomy law would be the focus.


If it wasn’t un-Constitutional before Perez, then it was Constitutional, yes. Am I missing something here? Before slavery was un-Constitutional, it was Constitutional. From 1919-1933, selling alcohol was un-Constitutional, then in 1933 it was Constitutional again.

You assert that marriage, and by extension same-sex ‘marriage’ is a fundamental right, and you seem to wonder why no one is challenging the law using this argument.



You also said this:

We actually agree on this, but I have to ask - Who can grant a fundamental right?

While informative, this is not a part of the marriage contract. The law does not affect the contract.

This particular law does not relate to procreation in marriage. It relates to procreation before marriage.

This law is relatively recent and is one of the ones whose constitutionality is being debated. A law being challenged does not support its own constitutionality.


Well, civil marriage is a legal contract... it is supported by a network of laws that create the benefits and obligations of civil marriage. If civil marriage is all about procreation such that it is necessary to exclude same-sex couples, there should be laws associated with the contract to reflect this fact. If there aren't, then civil marriage - a legal contract - is not all about procreation such that it is necessary to exclude same-sex couples.


I love these constant references to driving, I really do... as if driving were a fundamental right... it's a great analogy, really. . Keep 'em coming.
So, you don't have to prove you can procreate... but if you can't procreate you can't get married?


Well, then, carlitoswhey... in absence of a gender-specific definition of marriage and no explicit law banning same-sex marriage, what law made same-sex marriage illegal in the United States from it's creation to 1973. If there is no law making something illegal, it is legal, is it not?


Yes. The 14th Amendment existed for a long time before Loving and California's equivalent in their State Constitution existed long before Perez. When the court recognizes that a law is unconstitutional, that means it has been unconstitutional as long as the related article has existed in the Constitution.

I did not create the recognition of marriage as a fundamental right. Some people have been attempting to challenge the law using this argument - in fact, In Re: Marriage Cases uses this argument. This case went to court after my first thread that covered same-sex marriage was posted. In other cases that use this argument, the appellees are told that marriage is a fundamental right and that same-sex marriage is not. The reasons given for this have been that marriage is about procreation - which is what we are debating here.

Good question. We could dedicate an entire thread to exploring the answer to that question. Is it important to this debate?

Apologies in advance - I'm in a rush here.

I don't recall saying that marriage was *all* about procreation.


I used driving because I knew you'd be amused In some states, you have to pass a handgun safety course before you are allowed to 'keep and bear arms.' Despite the UN's protestations to the contrary, this is a fundamental right.

States, counties and municipalities regulate marriage. Currently, there is no "positive test" for procreation in marriage law. Nor do we want one. As others here have stated, procreation is the natural result of marriage in most cases. We encourage this as kids born to married couples tend to be more productive citizens, contributing positively to our society as a whole.


Where did I say that? I said exactly the opposite.



I was responding to your point regarding what people in 1930 would have thought. It appears that you agree with me, as you haven't rebutted the statement. Nearly every state in the union clarified their marriage contract once it became clear that gays were going to exploit the gender-neutral loophole. Yet you reject this common-sense clarification of the law, because you've discovered a fundamental right to same-sex 'marriage.'


I admit near-total ignorance on this, so please be kind. Relying on my common sense, not my Constitutional Law background here.

Let's say that I am imprisoned for something, say federal drug trafficking. 10 years from now, with the help of Hillary Clinton's liberal justices (yay!), the SCOTUS declares drug trafficking to be Constitutional. Am I freed from jail upon this event? Do we actually go back and retroactively apply Constitutionality? Is this the logic used to advocate slavery reparations?


Who did then?

As this debate regards a society attempting to define its laws, and your attempting to re-define them based on 'fundamental rights' to a social construct (gay 'marriage') which has not existed in our country's history, I'd say that it's germane, yes.

Is there another obligation or benefit in marriage that is associated exclusively with procreation apart from assumed paternity?
This would imply that people unable to procreate who marry, such as myself after testicular cancer, would be at least guilty of fraud upon the people. If the purpose of marraige, according to the state, is to provide a method of procreation, I would certainly be guilty. I do not for one instance believe the modern cultural viewpoint of marriage is for the rearing of children.

If the government allows a couple to marry that it knows can't procreate, can it deny marriage to a same-sex couple because they, as a couple are unableto procreate? If so, why?

It has been said many times...the real reason teh US is against gay marriage is because they are gay. No really good reason. It is the religous right inflicting their morality on everyone else. There is no logical reason for denying gays marriage. Who bloodywell cares what they do? Really we've had gay marriage here for awhile and nothing changed. I can still tell a man from a women in a well lit room. The earth didn't open and swallow us and no god has smited the mountains to the sea.
All the anti-gay marriage front does is reaffirm to the rest of the world that the US is as much a theocracy as the Taliban once was. They simply bundle their bigotry up into a nice 'family values' agrument that is total crap. They somehow believe that if you take away gay marriage, gays will magically become straight church-going members of society.
Pass the collection plate over here!

By ensuring that the procreaters can be fully responsible for the procreatees. Outside some framework of that kind, procreation can indeed have a rather destabilizing effect on society.

Now how about answering my latest unanswered question? If both models of child-rearing that I mentioned (romance-based and sibling-based) do the job of providing a stable environment for raising the current generation and showing them how to do so for the next, what more is necessary, assuming your idea of the fundamental purpose of marriage holds true?



And it's mindbogglingly ridiculous statements like this that make rational discussion of this subject nearly impossible. The vast majorities that enacted popular referenda against same-sex marriage in 38 states are the religious right?


Guh?

DaytonRocker,



I apologize, I thought you inferred that sex and sexual attraction had at least something to do with marital intimacy - though, admittedly, it's not everything. Do you believe that sex and sexual attraction have absolutely nothing to do with marital intimacy? As opposed, say, to the intimacy typically found between siblings?

carlitoswhey,


And I don't recall saying that you did. I was merely responding to your question regarding the logic in asking the question at the start of this thread. That's what this thread is about, carlitoswhey, it's about the assertion that marriage is all about procreation and therefore same-sex couples should be excluded because they can't procreate. Welcome to the thread.



And the State can intrude upon a fundamental human right if it can prove there is a valid State interest related to that intrusion and that it is necessary to intrude in order to further that interest. Does the State have a valid interest in making sure that handguns are handled safely? Could the State prove that it is necessary to require a handgun safety course before allowing someone to 'keep and bear arms' in order to further that interest?



And kids adopted by married couples? Do they tend to be equally productive citizens, contributing positively to our society as a whole?



Well, same-sex couples are prevented from marrying because they can't procreate. At least, this is Blackstone, DaytonRocker and Amlord's argument. So, according to them, there needs to be at least some proof that you will at least be likely to procreate before being allowed to marry, isn't there? I mean, the State of Illinois regulates marriage with the hope that people will procreate in marriage, right?



When it comes to what is legal and what is not, what people thought is irrelevant. Was it illegal for a same-sex couple to marry prior to 1973? If so, what law prevented it?



It depends on what article of the Constitution was used to declare it unconstitutional, what time that article appeared in the Constitution in comparison to when you were incarcerated.

If a law is considered unconstitutional based on the 14th Amendment, and the law has existed prior to the 14th Amendment, then it was only Constitutional up until the point that the 14th Amendment was enacted. If that same law continued to be on the books unchallenged after the 14th Amendment was enacted, it would be considered unconstitutional from the time the 14th Amendment was enacted until the time the law was successfully challenged.

Just because the constitutionality of a law has been unchallenged, does not mean that it has always been constitutional up until the point that it is challenged.





What's important as far as this particular thread is concerned is the nature of marriage as a fundamental right - not who can grant a fundamental right. Marriage has been recognized as a fundamental right in this country both through Supreme Court cases relating to marriage and the right to choose who to marry and through the United State's participation in creating the Universal Declaration of Human Rights.

So, the question of who grants fundamental rights is irrelevant... because marriage is recognized as a fundamental right in this country. There's no need to explore who grants fundamental rights. The questions here are... what makes marriage a fundamental right? Is marriage a fundamental right separate from procreation - which is also a fundamental right? These are the questions that have evolved as a result of the original questions. If you believe that marriage is not a fundamental right, then by all means say so. But this debate is predicated on the the fact that this country recognizes marriage as a fundamental right - it is the nature of that right as it relates to same-sex couples that is being discussed.

Blackstone,


So, marriage is recognized as the institution it is because marriage ensures that the procreators can be fully responsible for the procreatees? How does marriage do this? And for what are the procreators responsible?



How does the existence of an obligation or benefit in marriage that is associated exclusively with procreation imply that people with testicular cancer are guilty of fraud? I don't quite follow.




While I agree that the reason most oppose gay marriage is because they are gay, there are many non-religious people who also oppose gay marriage. While the public noise may be loudest from the religious right, this doesn't mean they are the only people who oppose it.

That’s what I get for answering in a hurry. That said, I object to the way you’ve phrased the question. Now that you’ve clarified it, though, I disagree with the assertion that ‘marriage is all about procreation and therefore same-sex couples should be excluded.’



Gotcha. Illinois has determined that same-sex ‘marriage’ it is against our public policy, and it certainly isn’t a fundamental right. We’re furthering our interest in defining societal structure. If we cannot determine our societal structure via our laws, then what is the point in having a government?


Of course. That’s why we also encourage adoption, both by married and even some non-married couples. Including same-sex couples in some states. That said, it's a shame that the gay rights movement and their allies have taken 'separation of church and state' to such a degree, denying federal support for Catholic Charities’ wonderful adoption program because they exclude homosexuals.


No. There is no positive test required to prove to the state that you can procreate in order to marry.




Fine, but perhaps you shouldn’t have answered my initial response (that ‘marriage’ was commonly defined as being between a man and a woman in 1930) with this comment:
And I'm sure nobody in 1930 expected sodomy laws – the only law on the books that kept same-sex couples from engaging in the legal contract of marriage – would be repealed either.


Since we can’t discuss fundamental rights, why bother discussing the law. We’re redefining marriage, so the entire past is irrelevant. We are only allowed to discuss ‘the nature of fundamental rights as it relates to same-sex couples’ apparently.

Lastly, Bigfish, you are in over your head here. Get your facts straight and come on back with them.

Good, now... tell that to Blackstone, Amlord, DaytonRocker and the judges across the country who have used this argument in order to exclude same-sex marriage.



Would that argument have worked in the case of interracial marriage? I mean they were just defining a societal structure, weren't they? There has to be actually something behind the defining of the societal structure beyond simply defining the societal structure for the sake of defining it, otherwise it isn't a valid State interest.

So, marriage between people of the same-sex is not a fundamental right, but marriage between opposite sex people is a fundamental right? Why? And why is same-sex marriage against public policy in Illinois?



True... yet these non-married couples that you refer to are allowed to marry even though they don't procreate... unless, of course, they happen to be same-sex couples.



So, prior to 1996 in Illinois, what rules were in place to prevent same-sex couples from marrying? What test did they fail? Was that rule on the books?




I agree, the two comments are absurd. Why was marriage 'commonly defined' as being between a man and a woman when the legal definition contradicted that 'common definition'? Because same-sex couples didn't marry. Why? Because it was illegal... or was it? Was same-sex marriage illegal in this country prior to 1973?



Dude, I didn't say we couldn't discuss fundamental rights. We are discussing a fundamental right. We don't need to side-track the debate into some discussion about who grants fundamental rights. This debate is predicated on the idea that marriage is a fundamental right. This is because the statements that caused me to ask the questions posed at the beginning of this debate were made in the context of marriage being a fundamental right. The questions, obviously, make no sense if marriage is not a fundamental right. So, this is what this debate is about. To go into who can grant a fundamental right unnecessarily takes the debate off course. If you would like to discuss who can grant a fundamental right, please I'd love to participate... but it's not relevant to this particular debate... this particular debate is predicated on the idea that marriage is a fundamental right.

Just as interracial marriage is not a new right, but an aspect of the right to marry... and inmate marriage is not a new right, but an aspect of the right to marry... so, I believe that same-sex marriage is not a new right, but an aspect of the right to marry. This is what has been argued in courts around this country and in many cases the justices disagree. Why? Because marriage has always been between a man and a woman. Well, this debate is about why. Why has marriage always been between a man and a woman? The answer I've been getting is: procreation. The State, it is claimed, uses marriage to encourage people to procreate responsibly - whatever that means - and that this reason is enough to exclude same-sex couples.

So, does the State of Illinois, for example, offer marriage to a heterosexual couple in order to encourage them to procreate in marriage as opposed to out of it?

I just did tell the debate participants. I’ll leave the judges to you


I don’t have the time to define, much less defend every bit of minutia particular to Western Civilization right now. Illinois’ state interest is what we the people of Illinois, through our elected officials, say it is. You are free to live elsewhere. If you feel it is unconstitutional, and you have the standing to challenge it, be my guest. We have plenty of judges who care not a whit about our laws and they just may rule your way.


I’m not even sure that marriage is a ‘fundamental right,’ although you certainly have offered plenty of evidence. I stopped reading after being endowed by my Creator with certain inalienable rights. Does not being able to marry one’s gay lover restrict one’s pursuit to happiness, life or liberty? All three? Sorry for being flippant, but I just don’t know anymore.


Correct.



This is going to shock you, but marriage was (and is) between a man and a woman. So any law referring to marriage was referring to one man and one woman.





Marriage may indeed be a fundamental right.
Marriage is also between a man and a woman.

Thanks... give me the tough job.



Yes, but the interest has to be valid. The people of Illinois can't simply make any law they choose and have it be constitutional simply because they say so. Laws have to have a purpose... there has to be something behind the law. We define our societal structure through laws, but laws don't exist simply to serve the mindless whim of the majority when it comes to defining that societal structure - which is why we have the Constitution.



Flippancy forgiven. I'm confused though... you just don't know anymore whether or not marriage is a fundamental right? Did you think it was and now you don't?

Do you believe that you have the right to choose the person you marry? If the State told you that you couldn't marry the woman of your choice, do you think that the State would have to explain why? Do you think that the State would have to explain why it was necessary to prevent you from marrying the woman of your choice?



And why is that? Why is it necessary to prevent a same-sex couple from marrying?



This just might shock you... It is a well known fact that if there is no law against a thing, then that thing is not illegal. And yet, same-sex marriage was not legally allowed in this country prior to 1973... how is that? Now, civil marriage is a legal contract. It is recognized and regulated through a network of laws. So, why is civil marriage between a man and a woman? It can only be so if there is either a legal definition of marriage that states that or no legal definition of marriage, which legally allows the common definition of the term to be used. Which is why I state that what people believed or thought in 1930 is irrelevant. The law in every state that had a legal definition of civil marriage from the time this country was founded was very clear. Legal definitions exist so that there is no legal confusion as to the definition of a particular term in the law. And, if there is a legal definition of a term, that is the definition that is used when it comes to the interpretation of that law. This happens all the time in court cases in this country. Why are they allowed to ignore this in this particular instance?

And if marriage is a fundamental right and it is necessary to change this legal definition to explicitly limit the choice of who we can marry, first, an examination of why marriage is a fundamental right is in order and then, an examination of why it is necessary to explicitly create this limitation is in order. Wouldn't you agree that this is true... that this is necessary... if marriage is a fundamental right?

Is there another obligation or benefit in marriage that is associated exclusively with procreation apart from assumed paternity?

If the government allows a couple to marry that it knows can't procreate, can it deny marriage to a same-sex couple because they, as a couple are unable to procreate? If so, why?

These questions completely miss the point and are simply window dressing to a much simpler issue. Gay marriage is an issue that is fundamentally about individual choice and societies willingness to first accept and then to [/b]PAY for those individual choices.

For some reason, the left and homosexual groups tend to paint the issue of gay marriage as a civil rights issue, and issue that confronts bigotry when nothing could be further from the truth. The fact of the matter is that homosexuals are not exactly enslaved and exploited. On average, a homosexual earns well above the median family income, and, although there may be some gawking from youngsters, cases of 'hate' crimes are rare. Certainly the possibly of a homosexual being attacked by a homophobe in a random bar are far lower than are the average heterosexual man's chances of being attacked for looking 'Bruno's' girl the wrong way in the average bar. In short, there is no great call overwhelming civil rights issue. If you don't believe me, take a stroll through San Fransico. Now imagine the response to, I am single and not getting a tax break. "HELP, HELP, MY CIVIL RIGHTS ARE BEING TRAMPLED!!"

The actual marriage and love portion of the equation are just flat out of the equation. On one hand, there are churches that will perform marriage ceremonies, though the state will not recognize them -- So what, if the issue is about love, why do you need the government to back it? On the other hand, most homosexuals are not involved in monogamous, loving relationships. Neither are many heterosexuals, but the fact remains that the average homosexual will have an order of magnititude more sexual partners than will his or her herterosexual counter part. You don't have to be either a clairvoyant or religious to realize that there are high individual prices to an overt focus of sexuality. It is no surprise that the suicide rate for homosexuals is much higher than it is for their heterosexual counter parts. The homosexual community will blame this on intolerant parents and a hostile society, but again, stroll through San Fransico or Minneapolis and tell me that that homosexuals can find no comfort? The fact is that overt sexuality and lifestyle based on sexuality has a draining effect on self esteem and causes depression, etc. It happens to hetero sexuals who are overtly sexual too.

This doesn't mean that we should 'punish' those homosexuals who are part of a committed relationship. Of course not, but I would argue that there is no punishment. Not receiving a hand out from taxpayers is not a punishment. If I choose to remain single, I get no government tax break. Why how devilishly unfair!!! By the same token, a homosexual couple can easily take care of everything that 'marriage' is supposed to bring them. Egads!! A will to pass assets on to a loved one regardless of sexual orientation!! Who would have though of something so revolutionary?!! Well, the government isn't paying you to be gay, I fail to see why this is important on a National level at all? Maybe Katrina victims could use a hand out first? Or the poor? Perhaps? Why not the single folks while we are at it?

And of course there is the pseudo science 'genetic' causation for homosexuality. The only problem is that the actual science of genetics casts huge amounts of doubt on this claim, but it is conviently ignored by the homosexual community wishing window dressing for their feelings. You see if homosexuality is genetic, it is obviously a recessive trait. Therefore, if two homosexual parents, there have been cases when a lesbian mother gives birth to a child from a homosexual man who donated the sperm (or the opposite), and ... the children quite often wind up being heterosexual. According to Mendel's Theoryone of the basic laws of genetics this should not happen[b]. Then there is the human genom, largely mapped, which has yet to find this homosexual gene that affects not a few people. We can find the genetic cause of Gaucher Disease, but not the far more common 'genetic' homosexuality gene? And finally there are people like Anne Heche, a practicing lesbian afflicted with this uncontrollable genetic disorder who ... stop being lesbians, marry, and have children. Doesn't that mean it clearly isn't genetic? If it were, that just shouldn't happen at all. And remember, if you are going to claim a scientific mantel, it is up to the person making the claim to back it up with scientific facts. The facts point toward other factors besides genetics in homosexuality, and, quite frankly, feelings are not scientific proof of anything. Science is not a jury trial, it is science.

So it boils down to choice. If a couple chooses to engage in homosexual activity, so be it. The vast majority of Americans will accept the choice. Where we draw the line is where the demands of the homosexual community cross the line of asking for tolerance and understanding and demand not just acceptance of the choice of their lifestyle, but that we fund their choice with taxpayer money. Like most Americans I will tolerate a person's choice to live his or her life as they choose. When they throw pseudo-science at me, ignore relevant complaints or short comings within their own community through loud, emotional calls of bigotry, and then demand that I fund their lifestyle choices I tend to take umbrage with it.

Simply put, I do not enjoy emotional black mail.

So are you stating that the people who made the comments that sparked the questions missed the point? Do you believe that their claim regarding obligations and benefits in the marriage contract was untrue?

Clearly you read no further than the first line. I suggest you go back and read the rest of my post. I make it very clear that this issue has nothing to do with procreation, but with resistance to something that is disingenious at best. It is not about a contract, it is about paying someone for a choice they make. Most Americans will tolerate a choice, we just won;t pay for every choice you make. Please read the whole post.

This is like saying that if there was a law pertaining to giving birth and the law did not specifically mention that the one giving birth was a women and was instead a gender netural term...that men could legally bear children. Of course you would come back with this is biologically impossible...which is exactly the same argument that we have been using to say that the intentions of lawmakers prior to 1973 was for the law to apply strictly to men and women. And even if the law was gender neutral, it doesn't matter in the least. The law is different today. That's all that matters.



Again the distinction must be raised between a gay couple living their lives together and the state having an interest in recognizing that union. Its not as if the state is preventing any two individuals from being together...what it is doin