So then what was it regarding? If you're saying they can't, then what you really mean is they shouldn't. Becuase they have passed the law and it has been upheld numerous times by various courts.


You can't just go and label any activity as a "right" because it corrupts what a "right" truly is. For instance driving. Driving is not a right...it is a privilege. Free speech is not a privilege...it is a right. Adopting another person's child is not a right...it is a privilege. And how can you possible make the distinction between a natural right a fundamental one? So adoption of children is not a natural right but a fundamental right? Come on.

Not only a right but something of an obligation. They're responsible for the child.

That they are... quite true.

And, if a couple procreate before being married, the couple dies and the father of the child's brother and his girlfriend who are both sterile decide to raise the orphaned child by adopting it... they then decide that the best environment in which to raise this child is marriage - because it provides this framework that you speak of. Is marriage a fundamental right for them? By adopting the child, they have legally taken the responsibility you mention on themselves... in the eyes of the State, raising the child is now equally as much an obligation for them as it was for the couple who created it.

lederuvdapac,



I'm sorry that you don't agree with the fact that adoption is a right in this country, but it is.

Yes. Now my question for you: Say it's the same scenario you just described, except it's the father's brother and sister who want to adopt the child. Is marriage a fundamental right for them? And before you answer, I just want to remind you that we were discussing that issue before this latest excursion, and my last post on that subject so far was #178. You didn't answer that yet.

Right, but so far the Constitution hasn’t told even the most liberal judge in the land that there is a “right” for same-sex couples to “marry.” Are you calling the will of the 45 or so state electorates nothing more than a “mindless whim?” I mean, voters are just dumb so we need judges to enlighten them? Not the best way to win people over, in my opinion.


The cases that you have cited referring to marriage as a fundamental right all refer to opposite-sex couples. I’ll offer my previous post to simplify my point of view.

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


Of course. But the state is not preventing me from marrying the woman of my choice. It’s not preventing you from marrying the woman of your choice either, I might add.


As it takes two paragraphs for you to walk through the logic of why IF this, IF that and IF the next thing, letting me know about a technicality in pre-1973 contract law, all the while ignoring my plain English statement, I hope you can see why we respectfully disagree on this. And why I maintain that it is you that is trying to re-define things, not me.

I have in my hands The American Heritage Dictionary “New College Edition” in which the word “marriage” is defined thusly:

1 a. The state of being husband and wife; wedlock.
b. The legal union of a man and woman as husband and wife;
2 The act of marrying or the ceremony of being married; a wedding.
3 Any close union: a true marriage of minds.
4 The combination of the king and queen of the same suit, as in pinochle.
(Middle English marriage, from Old French, from marier, to MARRY.)

That dictionary was printed in 1975. Are you telling me that there have been so many gay “marriages” in the world, that the common understanding of the word itself has changed to be gender-neutral?



The right to adoption is about as fundamental as the right to gamble. I'm not sure where you are getting this.

Blackstone,



Yes it is. They can't marry however, because of incest laws. The State is, for the time being, able to violate the fundamental right of a brother and sister to choose to marry each other.

So. Let's say, this couple adopting the brother's child are first cousins and not brother and sister. They live in Illinois, they are sterile, adopt this brother's child and marriage will, again, provide this framework you speak of and the State, again, sees them equally as much responsible for the child now as the couple that created it. Is marriage a fundamental right for them?

carlitoswhey,



Well, let's see. Was the will of 39 state electorates in 1948 nothing more than a "mindless whim"? Did they need a judge to enlighten them?



Of course, but that's because same-sex couples weren't allowed legally marry. And why was it illegal again? I mean there were no laws making it illegal and the legal definition did not exclude it.



How do you know? I might want to choose to marry my sister. . Or perhaps, I want to marry my first cousin.



Good to know. And in 1850, the State of California legally defined marriage thusly:

Marriage is a personal relation arising out of a civil contract between two people, to which the consent of the parties capable of making that contract is necessary.

Now, the question arises... in terms of legal interpretation of 'marriage' laws in the State of California, which one is supposed to be used... your definition or the State of California's legal definition?

Well, as a matter of law, when a legal definition exists, that is the definition used to interpret the law - that is a fact. So, your definition - when it comes to marriage laws - is irrelevant. Marriage has been defined in California from 1850 to 1976 as being a contract between two people with no reference to the gender of those people. For 126 years, the tradition of civil marriage as recognized by the State of California was defined that way.



Adoption is deeply rooted in this nation's history. There is a recognized right to adopt.

Come on entspeak. This is the point where ideology and reason clash. You and I know that adoption is in no way considered a right in the true sense of the word. You can prove that it is a traditional institution in this country and in others...but in no way does that translate into a right. And when i say right i mean natural rights that are inalienable such as freedom of speech, religion, the press, protection against search and seizure, right to a trial by jury, among others. Its just intellectually dishonest to claim otherwise. I understand that accepting this crumbles your house of cards, but we have to face facts.

It may be worth considering here, leder, that there are other rights that might support what you would describe as a privilege. Does a man or woman have the right to start a family and raise children? Or is that, too, a privilege? Or is it only a right for straight people? And what of children? Does a child have the right to be raised in a secure, supportive environment? Or is that, too, a privilege? Or is it a right only so long as that environment is heterosexual?

To me, the right to choose a partner and raise a family is far more natural and self-evident than, say, the right to carry a gun or the right to trial by jury.

If we don't have the natural right to have a family, where's the pursuit of Happiness mentioned in our Declaration of Independence? Where's the Justice promised in the Preamble to the Constitution? Where's the general Welfare? Where are the Blessings of Liberty? If we, as a people, do have the right to raise families, are you arguing that that right is a mere "privilege" for those who are sterile or post-menopausal or single - or gay?

And even if raising a family is but an insignificant privilege, there is but one reason to deny any individual the "privilege" of creating a family through adoption: if they would be an unfit parent. If you are arguing that gay men and lesbians are unfit parents by definition, I would have to take serious exception - and ask you for LOADS of unequivocal foundation. And, even then, if we are to determine fitness for adoption but not for procreation, that could raise equal protection issues, couldn't it? If you're a mature man or woman with a good income, a beautiful home, and a loving partner with parenting skills as excellent as your own, but you happen to be gay, forget about ever having your relationship acknowledged by the state, never mind adopting a child. But if you're a bankrupt, HIV-positive, child molesting ex-con with a history of violent crime and drug abuse - hey, get married, spawn seventeen kids - congratulations! Something is wrong with that picture - and I suspect it has to do with a clash of reason and ideology.

For your right to create a family, leder - even if you could only do so through adoption - I would gladly pledge my Life, my Fortune, and my sacred Honor. Where do you stand in relation to my family?

It is you who are being intellectually dishonest, leder. I show you evidence that adoption is recognized as a right in this country and you claim that adoption is 'not a right by any stretch of the imagination.' Can you provide some evidence - beyond a simple, "hey, come one... you and I both know it isn't a right." - that adoption is not recognized as a right in this country?

It is recognized as a right in this country. So your argument - marriage is not a fundamental right for those who adopt because there is no recognized right to raise somebody else's children - doesn't make sense.

Not to nitpick, but you never proved that there is a right to adoption. You asserted it and linked to a case in which a NY state appellate court allowed adoption.

Your article says:



My understanding of rights is that they don't require a law "allowing" them. There may be laws restricting certain rights, but they must pass Constitutional tests.

Certainly the federal courts have never asserted a right to adoption (that I am aware of). Certainly if they did, the State courts would not be ruling on these matters, it would be settled law.

In California, the Court has held that "The right to adopt a child, and the right of a person to be adopted as the child of another, are wholly statutory." Estate of Sharon (1918) 179 Cal. 447, 454 [177 P. 283]

Fundamental rights cannot, in my view, be "wholly statutory".

In fact, Florida outright bans homosexual individuals or couples from adopting, and the law was upheld by the 11th Circuit. Lofton v. Department of Children and Family Services

I'm pretty sure that means that there is not a federally recognized "right to adopt".

You do have a point in that the right may not be recognized as fundamental by the courts. My use of the term was used based on how the courts go about defining a right as fundamental. One of the definitions of a fundamental right is that it is deeply rooted in our nation's history. Which, adoption is.

I will concede that the right may be simply statutory in nature, but that does not mean that it is not a right 'by any stretch of the imagination' - I will not concede that. So, if we have a legal right to raise a child that is not our own, lederuvdapac's argument still doesn't make sense.

Thank you for setting me straight on that one. .

I have the pleasure of writing this from a state (Illinois) that never banned interracial marriage/miscegenation, but does have a law on the books defining marriage as one man, one woman. We were also the first state in the union to decriminalize homosexual acts in private. Consider us enlightened.

As for those 39 states, I’d say that they were wrong, and would agree with the Loving decision. A brown man and a white woman certainly fit the “one man one woman” definition of marriage, unlike what you are suggesting.

Here is a marriage license from Cook County from 1911. You see that there is space for the applicants to write two names. Pre-printed before the first name is “Mr” and before the second name is simply “M.” I’m not great with historical etiquette, but I think that the intent here is obvious, as you see with the “Miss” written in before the second name.

Further questioning your assertion that “there were no laws making it illegal” Here are the requirements for filling out the application in Cook County, Illinois. I suppose you’ll tell me that, before 1973, it didn’t say “bride” or “groom?”


I can’t find the original Illinois statute anywhere, so it may indeed be gender-neutral as in “the parties.” However, I read in American Marriage Laws in Their Social Aspects (Authors: Fred S. (Fred Smith) Hall, Elisabeth W. Brooke, Published 1919), page 25, that “…the marriage certificate shall contain the signatures of two witnesses to a statement that they heard the parties take each other for husband and wife.”

But what does it matter - “Bride and Groom,” “Husband and Wife,” "take each other" - these are just words – they don’t mean anything!

Here is an index of marriages in Illinois from 1763 – 1900. More than a million marriages, and not one same-sex couple to be found. (By the way, here is one record I found interesting - LINCOLN, ABRAHAM / TODD, MARY 11/04/1842 / SANGAMON)

By the way, while looking for historical law, I found this handy list with a rundown of the 50 states’ marriage laws.


Question for you. What is the states' interest in preventing me from marrying my brother exactly? It cvan't be about incest laws, because those laws only exist to prevent consanguineous procreation, so they would not present a valid state interest for 2 brothers marrying.


I think you actually have the California law wrong. I’m not positive, but didn’t California, in 1971, write the marriage law to be gender-neutral in response to feminists? Then, with Anita Bryant and everything, they clarified it to eliminate the evil homosexuals? If so, that would have made same-sex marriage illegal even in California before 1971. Can you please clarify this, or maybe post the entire law from 1850? I’m especially curious how they referred to the spouses – I’m guessing husband / wife.

At least I’m not the only idiot who looked in the dictionary to see what marriage meant. Some Kentucky judge did the same way back in 1973. After the judge listed the various dictionary definitions of marriage, they found that “the relationship proposed does not authorize the issuance of a marriage license because what they propose is not a marriage.” It’s interesting that the lawmakers didn’t feel compelled to define the word, and thus had to fall back on the common definition.

The man and woman who both bear a child have a right to raise that child. A man and a man who want to start a family, do not have a right to another's child through adoption. They have the privilege if they fit certain criteria according to our democratic, legal, and social institutions that have developed over the course of two centuries. And the socio-economic factors that a child enters into is neither a right nor a privilege for they are just pure chance.



I would say equally as so...but you have a right to raise your own children, not someone else's.



You're misrepresenting what I said. Everyone has a natural right to have a family. A homosexual has a right to live togther in peace and happiness for their entire lives. But they do not have a right to adopt nor does a heterosexual family nor does a single individual. The institution of adoption is a social construct and not a natural right of being an individual.



And i would like to see where i even made the mere implication that my belief was as so.


And it seems your passion for this issue has blinded you even further to my actual contention in this thread. I'm making no distinction between homosexual or heterosexuals in the area of adoption. There is no universal right to adopt. It is a social institution, not a natural right. You will not read Locke, Rousseau, or any other Enlightenment thinker or any contemporary proponent of individual liberty mention adoption as an essential liberty. The way it relates to this thread is that entspeak's main argument is that the institution of marriage is a fundamental right (not natural right though) for the purpose of raising a family. My counter-argument is that since adoption is not also a universal right as is procreation, then his argument for marriage's purpose is false.




Just because it is a traditional institution has absolutely nothing to do with it being a right. The burden of proof is hardly on me to prove that adoption is NOT a fundamental right. I am going to merely ask what exactly is your source for this contention. If its simply that it has existed for a long time, then your argument falls flat. I do not have the right to drive a car, although under your logic it should be since driving has been legal for a long time.

The definition of a fundamental right has zero to do with how long it has existed as a social institution. When the Founding Fathers created the Declaration of Independence and later the US Constitution, the rights that they declared that were inalienable were not deeply rooted in their history but rather universally recognized as always belonging to all individuals.

Adoption is a product of our social, legal, and democratic institutions working together to formulate a practical system for the raising of orphan children. In nowhere has it ever been written that adoption in and of itself is a fundamental right comparable to free speech or trial by jury.

My point was only to respond to your implication that 45 or so States can't possibly be engaging in a mindless whim. As I've pointed out to you before - and you have admitted here - it is quite possible for 75% of the population and 45 or so State legislatures to be wrong. That was my only point in that regard.



It's fascinating to me that you use this case to challenge my assertion that in cases where there is a legal definition that the legal definition is what is used. I always smile when people bring up Hallahan when it comes to the use of the dictionary rather than a legal definition. In this case, it is precisely the absence of a legal definition in Kentucky that allowed the court to use the common definition. So, what's your point? I have always stated that where there is a legal definition, that is the definition that is used... not the common definition.

And my bringing up the legal definition was always to challenge the patently false assertion that civil marriage – a legal contract – has always been defined as being between a man and a woman in this country. That clearly is not the case.

The laws that you mention do not define marriage. And can't really be used to prevent same-sex couples from marrying. Those laws make reference to people and ask people to say something particular. If same-sex marriage were allowed, a same-sex couple would be required to say those words... this does not prevent them from getting married... it only does so if they do not say those words.

And if it is unconstitutional to define civil marriage in terms of the gender of the people participating in it, the laws making reference to gender do not lend constitutionality to the definition – they would also be unconstitutional.

Marriage is a fundamental right... restrictions on that right have to be necessary regardless of how many laws exist that simply refer to the restriction.



Really? Fascinating. And where did I ever state that same-sex couples were allowed to marry during that time period? So, again, what's your point? The simple fact that they have never been allowed to do so before is not justification enough to prevent it now. Marriage has always been a flexible institution. It used to be legal to rape your wife... that was part of the tradition of marriage... In most states, we used to prevent blacks from marrying whites... that was part of the institution of marriage. If the argument that it has never happened before were enough to justify preventing it now, we would have not had any of the positive changes to marriage that we have. So, you can show me all the historical records regarding marriage that you want... all it illustrates is that same-sex marriage was not allowed in this country – something I have never contested. The more important issue is why. Why wasn't it allowed? That is the point of this debate.

The simple statement, "because marriage is for those of the opposite sex" does not justify the exclusion... it is merely a restatement of the fact that same-sex couples have never been allowed to legally marry. Why was the choice of whom you marry – which is a fundamental right – necessarily restricted to a man and a woman? The State says it has to do with procreation – it was restricted to a man and a woman because procreation is a fundamental aspect of marriage. Marriage that does not involve procreation is not a fundamental right. – this is what Blackstone stated earlier in this debate.

But, even Blackstone has just admitted that this isn't the case. If it is a fundamental right for a sterile heterosexual couple to marry, then procreation is not a fundamental aspect of marriage – such a marriage will never involve procreation. As Blackstone admits, marriage is about the results of procreation whether that procreation occurred in marriage or not – indeed, whether it is the couple seeking to get married that has done the procreating or not. Children, for the most part, are products of procreation. If marriage is about providing a framework in which to responsibly deal with the results of procreation, then those who adopt – in taking on themselves all the parental responsibilities normally assigned to the biological parents – also have the fundamental right to marry. They are, in essence, taking on the responsibility for the results of procreation. The State sees no difference, legally, between adoptive parents and biological parents... it expects the same of both when it comes to being responsible for a child.



Really, is that the only reason incest is illegal? I don't think that's true. As far as I know, incest laws also apply to brothers. You can argue that they shouldn't apply to brothers, but that really has no direct relation to this particular debate – this debate isn't about whether incest is constitutional or unconstitutional. Until they don't apply to brothers, brothers can't marry.



I do not have the California law wrong. What I posted is the entire definition of marriage as it existed in California from 1850. I posted this information earlier in the thread. I have also posted it in several other threads regarding this issue. If you have some evidence to the contrary, please supply it. California statutes are easily accessible from the web.

lederuvdapac,



Please re-read the post you just responded to. You are arguing a point that has already been resolved. I concede that adoption is not a fundamental right. It is a right, however, and the State – once an adoption is finalized – legally treats the adoptive parents as if they were the biological parents. So, the State expects adoptive parents to be equally as responsible for the child as the parents who begot it. Therefore civil marriage – being this framework in which to responsibly deal with the results of procreation – is a fundamental right for adoptive parents just as much as it is for the parents who begot it. The adoptive parents took on all of the parental responsibilities of the biological parents... they are now responsible for the results of the biological parents act of procreation – the procreatee, as Blackstone puts it.

There's a reason why I included with my question an adviso about our previous discussion on that subject. We were in the middle of a big exchange dealing with that very point about the interrelevance of marriage and sex, which you broke off after #178. Ignoring it won't make it go away.


There comes a point where the familial relationship between two people is too close for marriage to be considered a fundamental right. It's not necessary for the purposes of this discussion to say where that dividing line is. But I do know that the fact that a state hasn't decided to criminalize sex between, say, first cousins, doesn't necessarily mean they have the right to marry. It's certainly legitimate for the state to discourage something without outright criminalizing it.

You contradicted yourself in a matter of 3 sentences. You concede that adoption is not a fundamental right yet argue that in the context of civil marriage it is a fundamental right for adoptive parents? Thats saying two different things. If you concede that abortion is not a fundamental right then you must also concede that the your purpose for marriage is wrong. How can homosexual marriage be a fundamental right for the purpose of raising a family when adoption in and of itself is not a right? It means that a same-sex couple can get married and want to adopt but if they are denied for any reason (not having to do with being gay) then their rights have been violated. Basically that they have a right to adopt someone else's child. If we accept this premise, then shouldnt we also believe that a vetting process for foster parents should be against our rights? Why shouldnt i be able to walk into an orphanage point at a child and take him/her home to take care of? Do we have the right to adopt the child that we want or does that right only extend as far as us getting any child? The logic is ludicrous. The fact that the legal system gives the parents the ability to adopt and take responsibility for the child is after the fact.

Adoption is not a right, it is a privilege. Excercising a right does not require any activity on the part of another person, nor does it necessarily infringe upon another person. Adoption satisfies neither criteria. It is a remarkably flimsy basis for arguing for marriage.

So, you agree with this?



So, first cousins may have the right to procreate, but not the right to marry? It's not a right or an obligation for them as it is for the heterosexual non-related couple? They are not responsible for the child? What is it about marriage that makes it not a fundamental right for first cousins of the opposite sex?



And how does the State of Illinois discourage first cousins from having sex?

But, more importantly, if marriage is a fundamental right for a sterile heterosexual couple, why is it not a fundamental right for a same-sex couple?

lederuvdapac,



Yes, you are right. It's saying that adoption is not a fundamental right and marriage is a fundamental right. Which are two different things... one deals with adoption... the other deals with marriage.



Not at all. Why? Because, as I explained to you, once an adoption is finalized the State sees no difference between adoptive parents and biological parents when it comes to the responsibilities of child-rearing. Couples who have children they have procreated and couples who adopt are both equally responsible for the child. Why then, if this is the case, is marriage - whose purpose is to provide a framework to responsibly deal with the result of procreation - a fundamental right for biological parents but not adoptive parents?

So, according to your logic, a couple who procreates has a right to marry even if they give up the parental obligations by giving up their child for adoption. But the couple who takes in their child and accepts all of the biological parents responsibilities for this child... this couple does not have the fundamental right to marry? It goes back to what I said earlier about why marriage is a fundamental right separate from procreation: You can procreate until the end of time and not ensure the survival of the species unless you accept the responsibility of raising the child.

Do we have a (fundamental) right to be wrong? Looking at recent decisions from the Supreme Court, I posit that we do.


Clearly? You have posted one excerpt of the marriage law in one state at one point in time (California 1850). And, at that time, the common definition of "marriage" was the union of one man and one woman. What in the hell are you talking about?
OK, here again are the laws that I referenced. You are please going to tell me how they don't define marriage? And, in your hypothetical scenario where gay couples would "say those words" --what is a 'bride' and what is a 'groom' then? And who please is redefining words here - you or me?







You have NOT posted a law showing gender-neutral definition of marriage, whether in California or anywhere else. On page 3 of this debate you began asserting this and you have continued, and you have pasted your quote on the 'definition' but you have NOT posted the full California marriage law. The only logical reason for this is that you don't have a source for the law, or that the law to which you refer contains a plethora of "husband" and "wife" references that you don't want to share with us. And, while you are right that California statues are available online, I have had a heck of a time finding historical laws, whether from California or elsewhere.

Not to be contentious, but just to clarilfy your position here. You're saying that one has a right to have a family, but only if that family is generated through procreation rather than adoption, correct?

Oh - lest I be misinterpreted, I am not at all passionate about marriage (gay, straight, or in pinochle), but you are correct that I am very passionate about adoption. We can leave it at that, lest we stray too far from the topic.

I wasn't reacting specifically to anything you posted, leder. My question regarding fitness was more rhetorical than anything.

To err is human. Do we have a fundamental right to continue being wrong? No. 'No amount of mindless tradition can save a procedure once the unconstitutional nature of the course being taken has been discovered.' I'm paraphrasing. I'll find the true quote. It's from a court case. I'll look it up and get you the exact quote.



I have posted one legal definition in one State that existed on the books since that State's creation in 1950 until 1977. You yourself have posted information that indicates that Maryland was the first state to pass a law explicitly defining marriage as being between one man and one woman in 1973. Every state that had a legal definition of marriage prior to 1973 did not define it as being between one man and one woman.

If you would like further backup that the law in California was what I stated it to be from 1850 until 1977, then here:

The California Senate Website - AB 19



And here is a more specific coverage of the legislative history of the legal definition of marriage in California:

California Senate Judiciary Committee



This information was posted in this thread - here.

I have never claimed that the State of California intended to allow same-sex couples access to the right to marriage when they created their legal definition in 1850. My point is that this was the legal definition in California from 1850 until 1977... and because civil marriage is a legal contract defined in legal terms that this is the definition used in interpreting the law. So, clearly, the legal definition of marriage in California prior to 1977 did not refer to a man and a woman. There were no statutes in any state that legally defined marriage as being between a man and a woman prior to 1973.

Are you claiming that the intention of those laws was to define marriage? Or were they merely to establish what is included on a particular document. Did the State specifically pass those laws in order to define who could engage in the contract of marriage? Then what was the point in having a legal definition of marriage if it was capable of being defined by these other laws? When a court looks at the definition of a term, it looks first to how the term is defined in the law. Marriage does not equal bride nor does it equal groom. Marriage is a contract and not an individual. Marriage has it's own definition separate from those terms. In California, and every other state that had a legal definition, that legal definition - used to define the contract of civil marriage - for most of our country's history was gender-neutral.

The purpose of this debate is to examine whether the choice to marry the individual of one's choosing is a fundamental right (this is not to say completely inviolable, because even fundamental rights can be constitutionally violated by the government). If the right to choose who you marry is a fundamental right, then restriction of that choice on the part of the government is subject to strict scrutiny.

That seems to be the state of the law currently.


No. You're still confusing "rights" with mere lack of criminalization.


I have no idea if they even do. And I don't see how that's relevant to the discussion.


In order to answer that, we'd have to continue with the discussion you broke off at #178. Maybe it seems like a convenient debating tactic to ignore everything that's been said up to a given point that doesn't prop up the house of cards that you've been carefully setting up, but rest assured that most people can see through gambits like that.

Can you provide some backup for your claim that an individual who engages in incest does not have the fundamental right to procreate? Now, let's be clear: I'm not saying that the State doesn't violate that fundamental right with incest laws... and this debate is not about the merits of that violation. But procreation is a fundamental human right. If incest laws are repealed, then incestuous couples who procreate are exercising that fundamental human right.



Well, it's relevant because you claimed it was legitimate for the State to discourage something without outright criminalizing it. I merely asked how one particular State discourages first cousins from having sex... without criminalizing it.

Perhaps you can give an example of how any particular State discourages first cousins from having sex... without criminalizing it. You brought it up. I merely asked you to back up that assertion.



We don't need to have that discussion anymore. That discussion was about a percieved difference in opinion regarding the fundamental purpose of marriage. You have already illustrated that the fundamental purpose of marriage is not procreation itself, but rather to provide a framework to ensure that parents can be fully responsible for the result of procreation - the procreatees as you put it. You back up this concept by stating that an unmarried couple who procreate and then sterilize themselves still have the fundamental right to marry even though they will never procreate in marriage. Now that you have clarified your position for me, I agree with your concept of the fundamental purpose of marriage. Which leads us to this...

You have claimed that a sterile couple has the fundamental right to marry. If a sterile couple has the fundamental right to marry, why does a homosexual couple not have that right?

I assume by that question you mean, no right to procreate with the person he's engaging in incest with. That sort of thing has been seriously frowned upon by our culture since time immemorial, so the burden has to be on those who claim that it is a right.

Call it a cultural version of stare decisis.


I'd have to say that this logic you're expounding may well be unique unto yourself. I don't know exactly what criteria you use determine whether something is a fundamental human right, but if there's a law against something, and that law is valid, then it would have to follow that the activity proscribed is not a fundamental human right, even if the law is later repealed.


Except I never claimed that any state did discourage first cousins from having sex without criminalizing it. I only stated that it would be legitimate for them to do so. For further details, see my paragraph above.


That I did, but this framework is based around the fact that marriage is based on procreation. There's a reason why married siblings don't fit into this framework, and that was what I was getting into in the discussion currently held up at #178.


Within the context of the example you cited.


My answer hasn't changed from the last time you asked that.

Unique to myself? Ummm, I don't think so. The right to procreate has been recognized as a fundamental right. Any law that infringes upon a fundamental right such as procreation is assumed to be unconstitutional. The government then has to prove that it is consitutional for them to infringe upon that right. They do this by proving that the infringement is related to a valid State interest and the infringement is necessary in order to further that interest.

We'll call it... ummm, let's see... for lack of a better phrase... strict scrutiny. It's applied by the Supreme Court to address laws that infringe upon fundamental rights. If a law passes strict scrutiny analysis, it is valid even though it violates a fundamental right.

For instance, you have the fundamental right to shout 'Fire' in a crowded theatre for absolutely no reason - freedom of speech. The government can, however, infringe upon that right because of an interest in preventing the harm that would be caused by the unnecessary panic created by such an exclamation. It is necessary to infringe on the fundamental right to free speech in that particular instance in order to prevent that unnecessary panic. So, the government can have a law that is valid and violates an individual's right to free speech in this particular instance.

Now, incest is illegal. Is the law constitutional? Good question. Topic for another debate. But the fact is that the law infringes upon an individual's right to procreate... it doesn't have to completely deny the right in order to be considered an infringement. If the bans on incest are repealed, there is no infringement on the fundamental right to procreate in the instance of incestuous procreation. Incestuous couples are then free to exercise their fundamental right to procreate.


But you just illustrated that marriage is not based on procreation itself, but on the results of procreation.



And what was that context? The couple was unable to procreate in marriage... they have a fundamental right to marry. Therefore, the ability to procreate is not a necessary aspect of marriage.

Because as my contention is that Marriage is a fundamental right for the purpose of procreation, another fundamental right while you are arguing that marriage is a fundamental right because of raising children (homosexuals through adoption which is a privilege). The problem i think we are having involves a matter of timing. I am talking about before a couple would get married and when they have not yet adopted. You are saying that after they already adopt, that it fulfills your purpose of marriage. But both parents would not have rights to the child until after they are married.



The concept of family is subjective. It could or could not involve children. But to answer your question, the biological parents have a right to raise their child while people who have not beared offspring do not have a right to raise a child. As I said, using this logic there should be no vetting process for when a person goes into an orphanage to adopt a child. Any person off the street can be able to exercise their right and choose a child to take home and raise.

Has any court ever found that we have a fundamental right to shout "fire in a theater"? Certainly not in the Supreme Court opinion that coined that phrase (scroll down to the paragraph with the green "[249 U.S. 47, 52]"). As I always understood it, we don't have a fundamental right to say that, and that's exactly why it may be prohibited.


OK, so that should mean we can assume just for the sake of this debate that it is constitutional. If we go by that assumption, incestuous marriage can not be a constitutional right, regardless of how the statutes may change.


I illustrated that procreation is not the purpose of marriage. I didn't illustrate that marriage wasn't based on it at all. Marriage exists the way it is on the assumption that the two spouses form a procreating unit (sorry for the antiseptic language). If they don't, then they should at least resemble one, so that their children have something to emulate. You acknowledged yourself that this emulation is a valid criterion for determining what should and should not be a legal marriage.


The context was that there was a child before them in need of parents. Parents who can show him or her what marriage looks like.

*le sigh*

Well, this phrase doesn't make much sense. Could you clarify this, please? Do you mean that marriage is a fundamental right because people procreate in it? If so, why is that the reason?



I see. So, if a couple married, procreated and then gave up their child for adoption you would what?... You would retroactively claim that their marriage was not a fundamental right? I mean, according to you, it was a fundamental right when they got married... did it suddenly lose its status as a fundamental right when they gave up their parental responsibilities? I mean, they could procreate again... so is their marriage still a fundamental right simply because of that potential? And what about the sterile married couple who have not procreated, but adopt this first couple's child. They take on all of the parental responsibilities of these biological parents. According to you, they are simply SOL.

Seems like a bit of the shaft for taking on such a large responsibility. I mean, if the adoptive parents' marriage is not a fundamental right then the government could very easily pass a law that voids their marriage making it more difficult to raise the unwanted child begot by a couple for whom marriage is constitutionally protected... meanwhile, this baby factory who have no desire to actually raise children reap the constitutionally protected marital rewards of their sexual appetites and unwillingness to use a condom.

Using your logic, a couple, at minimum, need only be able to procreate, get married, pop out the babies and place the burden of raising these unwanted children on the government – or those adoptive parents willing to take the burden away from the government – in order to enjoy the benefits of marriage.

If the aim of marriage is to simply propagate the species, we don't need marriage do that. People are certainly capable of procreating outside of marriage. This is why marriage is a fundamental right for reasons separate from procreation.

Blackstone,



No... that is because we have a right that covers that... it's called free speech. What the USSC stated was:



This means that a constitutional challenge to a law prohibiting someone from shouting "FIRE!" in a theatre based on a First Amendment right to free speech would fail - because the law would easily pass strict scrutiny analysis.



Well, the law banning incest is still on the books, so for purposes of our discussion its consitutionality is irrelevant. As long as the law is on the books, incestuous marriage will remain illegal.



No, no, no, no, no. Strict scrutiny, Blackstone... learn it. It does not work the way you are describing.

You stated earlier that marriage that does not involve procreation is not a fundamental right. A marriage between two people who are sterile will never involve procreation. That means that a marriage between a sterile couple who adopts their brother's child would not be a fundamental right. Yet, you said it was. I agree that it was. But this contradicts your statement that marriage that does not involve procreation is not a fundamental right.

Or because it isn't free speech, within the meaning of the First Amendment. Look at what the court is saying again: "The most stringent protection of free speech" wouldn't protect this. But if this activity is free speech, then the "most stringent protection" would indeed protect it, because the "most stringent protection" would admit of no exceptions.


"Strict scrutiny" or no, if the laws against incest are valid, that means the state has a "valid interest" (or whatever the Court's invented jargon is) in preventing or discouraging incestuous relations. How it chooses to do this is not for the Court to second-guess (provided there's no violation of procedural due process, no "cruel and unusual punishment", that sort of stuff).


Yes it does. My bad. Interestingly enough, though, that works against what the Court said in Skinner, when it made reference to marriage being a fundamental right, even though marriage per se wasn't being threatened, just a man's ability to procreate.

And in yet another deeeeeep red state the door goes "slam" on gay marriage.

Volokh Conspiracy overview of Washington Supremes' upholding Washington DoMA.

The hardest day of the cruelest month:
For gay-marriage litigants, July has been the cruelest month. Prior to today’s 5-4 Washington Supreme Court decision in Andersen v. King County, there were two substantive state marriage decisions against them (New York and Connecticut), one quasi-substantive federal decision against them (the 8th Circuit, whose broad dicta went beyond the state constitutional ban at issue), and three procedural decisions against them upholding the propriety of ballot initiatives (Massachusetts, Tennessee, and Georgia).

But this may turn out to be the hardest day of all. Andersen is the most careful, closely reasoned, and comprehensive judicial opinion to date rejecting constitutional claims to gay marriage. It is much better, as a matter of conventional legal analysis and craftsmanship, than the New York Court of Appeals decision in Hernandez v. Robles rejecting gay-marriage claims a couple of weeks ago. Since the principles and arguments on this issue from state-to-state, and even in the federal courts, are not that different, the Washington decision will deserve close attention from other courts. Among the courts next to consider claims for gay marriage, the New Jersey Supreme Court in particular should grapple with Andersen.

Something that is not absolute but is simply a degree of rigidity or strictness is most certainly capable of allowing an exception, if the exception falls within what is allowable according to the particular guidelines set to establish that rigidity - which are, in this case, the standards known as strict scrutiny.

Again, the courts do not create rights... they either protect them or deny that protection. As regards shouting "Fire!" in a crowded theatre, the Supreme Court states that such an action would not be protected.



What you fail to see - or acknowledge - would be that if the State removes those laws, it would be because it either no longer sees a valid interest in preventing such behavior or it has been determined by the courts that the State's interest is not strong enough to prevent the behavior - at which point the State's interest becomes irrelevant... they can claim it all they want, they just can't use it to prevent the behavior.

But, if the laws are valid... and this debate is not about the validity of such laws... the State can claim an interest in preventing incestuous marriage.



Being that legally, marriage was the only place in which one could procreate and one had the fundamental right to both marry and procreate, such a mention would be necessary so as not to imply - and thereby have an adverse effect on laws not under consideration in the case - that one had the right to procreate outside of marriage. Again, it was necessary for the court to frame that decision taking into consideration the possible effect the decision might have on other laws - fornication laws. If the court had stated merely that procreation was a fundamental right without mentioning marriage, that decision alone could have been used to render fornication laws unconstitutional.

So, if it is a fundamental right for a sterile heterosexual couple to marry, why is it not a fundamental right for a homosexual couple?

But Justice Holmes' remark wasn't about a degree of rigidity. It was about the highest degree of rigidity. The highest degree can not admit of any exceptions, because if it did, a degree which did not would be higher.


I prefaced my example with "if the laws against incest are valid".