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entspeak
After a rather lengthy debate about what effect same-sex marriage has on the institution of marriage, it became clear that the debate had evolved beyond the original question. I like to feel that means we pretty much answered that question, but others would certainly disagree.

This debate, however, will focus, not on some of the perceived effects on the institution of marriage, but on whether the State has the legal justification to exclude same-sex couples from marriage. In order to clearly argue this issue, I am going to require that a couple of "hypotheticals" be accepted -- I use quotes because I don't believe that they are hypotheticals, but I also don't want to cover the same ground as was covered in the History of Marriage as an Institution thread.

1. Same-sex marriage does not redefine marriage.

2. There is no slippery slope to polygamous and incestuous marriage.


For the purpose of this debate, I ask that you accept these two statements as true. If you would like to challenge these two statements, please do so in the History of Marriage as an Institution thread where it is relevant to do so. There are compelling arguments as to why these statements are true in that thread, you can challenge them there.

Accepting the above statements as true:

What is a valid legal argument for or against the State's explicit exclusion of same-sex couples from marriage?

This is an important question because the constitutionality of laws banning same-sex marriage are starting to be questioned in the courts.

I ask, when responding to this question, that you be willing to support your argument with some sort of evidence of its credibility.
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Zarathustra
QUOTE(entspeak @ Apr 20 2005, 04:42 AM)
After a rather lengthy debate about what effect same-sex marriage has on the institution of marriage, it became clear that the debate had evolved beyond the original question.  I like to feel that means we pretty much answered that question, but others would certainly disagree.

This debate, however, will focus, not on some of the perceived effects on the institution of marriage, but on whether the State has the legal justification to exclude same-sex couples from marriage.  In order to clearly argue this issue, I am going to require that a couple of "hypotheticals" be accepted -- I use quotes because I don't believe that they are hypotheticals, but I also don't want to cover the same ground as was covered in the History of Marriage as an Institution thread.

1.  Same-sex marriage does not redefine marriage.

2.  There is no slippery slope to polygamous and incestuous marriage.


For the purpose of this debate, I ask that you accept these two statements as true.  If you would like to challenge these two statements, please do so in the History of Marriage as an Institution thread where it is relevant to do so.  There are compelling arguments as to why these statements are true in that thread, you can challenge them there.

Accepting the above statements as true:

What is a valid legal argument for or against the State's explicit exclusion of same-sex couples from marriage?

This is an important question because the constitutionality of laws banning same-sex marriage are starting to be questioned in the courts.

I ask, when responding to this question, that you be willing to support your argument with some sort of evidence of its credibility.
*



I don't think there is anything to discuss here Ent. By accepting your statements, one is saying that the institution of marriage will not be changed in significant way. The entire argument over allowing same-sex marriage is based on how it will effect our society... if you're limiting the discussion by saying marriage will not be re-defined or changed, then there is no argument. zipped.gif

Matter of fact... if we aren't changing the definition of marriage, what exactly are we changing? It would seem to me that gay marriage is already allowed, if that's the case. Problem solved... carry on!
entspeak
QUOTE(Zarathustra @ Apr 20 2005, 11:14 AM)
I don't think there is anything to discuss here Ent. By accepting your statements, one is saying that the institution of marriage will not be changed in significant way. The entire argument over allowing same-sex marriage is based on how it will effect our society... if you're limiting the discussion by saying marriage will not be re-defined or changed, then there is no argument. zipped.gif
*




Well, Zar... you have yet to put forth a rational explanation in the History of Marriage thread as to how it is significantly changed beyond the changing of 5 words "a man and a woman". You haven't shown why it is important to make this explicit distinction that hadn't been made in State law until 1973. You are using the law in question as the sole justification for its own existence. Marriage is defined as being between a man and a woman... why? The question is... why is this significant? If you are going to call this a definition, then the creation of such an explicit definition can't be arbitrary. If it is arbitrary, it is unconstitutional.

I'll copy this post into the History of Marriage thread where it is relevant. Hopefully, you can answer this there.

QUOTE
Matter of fact... if we aren't changing the definition of marriage, what exactly are we changing? It would seem to me that gay marriage is already allowed, if that's the case. Problem solved... carry on!


Good. Well, I'm glad that you've acknowleged that if there is no re-definition of marriage, there is no valid justification for making same-sex illegal by making a law that "defines" marriage as being between a man and a woman.
Bikerdad
QUOTE
Matter of fact... if we aren't changing the definition of marriage, what exactly are we changing? It would seem to me that gay marriage is already allowed, if that's the case.


Good. Well, I'm glad that you've acknowleged that if there is no re-definition of marriage, there is no valid justification for making same-sex illegal by making a law that "defines" marriage as being between a man and a woman.
wacko.gif


1. Same-sex marriage does not redefine marriage.

2. There is no slippery slope to polygamous and incestuous marriage.
For the record, both of these hypotheticals are wrong. However, I'll play your game.

What is a valid legal argument for or against the State's explicit exclusion of same-sex couples from marriage? Legal argument? A legal argument is one based on laws on the books. Thus, for Ohio, Nevada, Missouri, Oregon, Louisiana, etc, the valid legal argument is their state Constitutions. Nothing more is required. For other states that have passed statutes limiting marriage, there may be some question as to whether or not those laws conflict with their state constitutions. The second aspect, for those states that haven't addressed the question at all, is common law, which has defined marriage as being between parties of the opposite sex since before our country was founded. Even during the brief period when polygamy was being practiced in the Utah Territory, marriage was exclusively between members of the opposite sex. When one gets to the Federal level, the valid legal argument is DoMA and state's rights.

The only legal arguments in support of same-sex couples are tortured readings of the equal rights provisions, readings that require the equal treatment provision to trump freedom of conscience, freedom of association, common law, "power to the people" (i.e., democracy as the organizing principle), the general welfare clause, and the separation of powers. Any legal argument made before the Supreme Court today in support of same-sex marriage (thus seeking to overturn DoMA and the state constitutional provisions of more than a dozen states) will also find itself curiously hemmed in by the recent juvenile death penalty decision.

The overwhelming standard worldwide is opposite sex only. Even fewer countries acknowledge same-sex "marriage" than applied the death penalty for juvenile offenses. Domestically, the trend among the state's is crystal clear. 10 years ago, no states explicitly defined marriage as between one man and one woman in their constitutions, and very few did so in their statutory law. The only place "same-sex" marriage has succeeded has been in the courts, and even then their failures have been far more numerous than successes. In legislatures, and more importantly, at the ballot box (remember, all power resides with the citizens), it has been resoundingly rejected.

Thus, the most powerful legal argument is this: the citizens of this country have rejected being yoked to acknowledge, accept, and support "same-sex marriage."

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Robert B
QUOTE(Bikerdad @ Apr 27 2005, 12:43 PM)
Thus, the most powerful legal argument is this: the citizens of this country have rejected being yoked to acknowledge, accept, and support "same-sex marriage."


I agree with BikerDad's conclusion here, if not his exact wording.

Discussing same-sex marriage as a civil-rights or states-rights issue, or a matter of Constitutionality or "state interest" is ultimately futile. These debates always end up as either semantic or dead-horse beating or terminally esoteric.

Also, such arguments let opponents of same-sex marriage off the hook for their untenable, unjust, and unseemly position (ie that same-sex marriage is, all things considered, a bad thing that should not be made legal).

If they can keep the debate framed as a matter of Constitutionality or political viablity or dubious sociological speculation, then they don't have to admit that they can present no rational, moral reason to keep same-sex marriage illegal. They get to simply keep arguing that "It's not in the Constitution" or "Most Americans are against it" or "It might - possibly, somehow - lead to polygamy (or incestuous marriage or human-animal marriage)" and pretend that such statements, in themselves, justify keeping it illegal.

The key to eventual legality for same-sex marriage is resolving the question "Regardless of the issue's current Constitutional and political status, why should same-sex couples be denied the ability to get married?"
Vermillion
QUOTE(Bikerdad @ Apr 27 2005, 06:43 PM)
The overwhelming standard worldwide is opposite sex only. Even fewer countries acknowledge same-sex "marriage" than applied the death penalty for juvenile offenses. Domestically, the trend among the state's is crystal clear. 10 years ago, no states explicitly defined marriage as between one man and one woman in their constitutions, and very few did so in their statutory law. The only place "same-sex" marriage has succeeded has been in the courts, and even then their failures have been far more numerous than successes. In legislatures, and more importantly, at the ballot box (remember, all power resides with the citizens), it has been resoundingly rejected.


That is an interesting statement.

Argentina, Australia, Belgium, Brazil, Canada, Croatia, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Liechtenstein, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, South Africa, Spain, Sweden, Switzerland and Taiwan recognise same sex marriages or civil unions.

Of that list of 27 countries, 7 explicitly allow same sex marriages, while the rest are civil unions.

Since the US *FINALLY* realised executing children was perhaps not entirely reasonable, that list has dropped to Iran, Yemen, Pakistan, Saudi Arabia and Nigeria. (five)

More to the point, the overwhelming trend across the western world has been towards recognising the right of co-habitation and civil union rights for homosexuals. Apart from the list above, MANY more (such as the UK for example) are currently in the process of developing such laws.

Oh, and by the way, in those countries where it has been legalised the social fabric of society has NOT disintigrated, as some on the far right would have you believe will happen.


Argue how you will about the law in the US, personally, though I think its absurd to prevent homosexual marriage, I actually accept BikerDad's argument that, at the moment, the people of the US are just not ready for it.

Of course, thats a rather sad fact, but none the less still valid. However, please don't try and invoke international support for this argument, as the evidence is strictly on the other side.


hayleyanne

QUOTE
Argentina, Australia, Belgium, Brazil, Canada, Croatia, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Liechtenstein, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, South Africa, Spain, Sweden, Switzerland and Taiwan recognise same sex marriages or civil unions.

Of that list of 27 countries, 7 explicitly allow same sex marriages, while the rest are civil unions.


More to the point, the overwhelming trend across the western world has been towards recognising the right of co-habitation and civil union rights for homosexuals. Apart from the list above, MANY more (such as the UK for example) are currently in the process of developing such laws.

Argue how you will about the law in the US, personally, though I think its absurd to prevent homosexual marriage, I actually accept BikerDad's argument that, at the moment, the people of the US are just not ready for it.

Of course, thats a rather sad fact, but none the less still valid. However, please don't try and invoke international support for this argument, as the evidence is strictly on the other side.



I think this raises a very interesting question. I think if the trend in the U.S. is to NOT recognize gay marriage and the trend --- as vermillion states -- in these other countries is to recognize some form of gay unions: Why is that?

Does anyone know how these other countries came to recognize gay unions? I think Scanidinavia was through legislation. U.K. is considering legislation. Canada was in the courts, I think?

I would suggest that those countries where gay unions were "legislated" that acceptance was less controversial and easier. In the U.S. much of the problem is that the attempt for change has come through courts, where such rulings have been swiftly met with legislative responses (fed DOMA, state DOMAs, state amendments).
Robert B
QUOTE(hayleyanne @ Apr 28 2005, 05:38 AM)
 

I would suggest that those countries where gay unions were "legislated" that acceptance was less controversial and easier.  In the U.S. much of the problem is that the attempt for change has come through courts, where such rulings have been swiftly met with legislative responses (fed DOMA, state DOMAs, state amendments).


And why have proponents of same-sex marriage resorted to the courts, selfishly stirring up controversy? Perhaps it's that, compared to other countries, a higher proportion of Americans indulge in unreasoned prejudice against same-sex couples desiring marriage. And the courts and Constitution are seen as a last defense against the tyranny of the majority.

Don't get me wrong; I would prefer a legislative solution. But as long as enough people get to hide behind unexamined, specious notions of "defending marriage" or American exceptionalism or whatever, sheer weight of numbers will win out over all other considerations. And that's when those who see themselves as being denied the right to marry take it to court.

Maybe they should quietly acquiesce to their lot, but that's hard to stomache when they see citizens of many other countries accorded the right they want - even countries that weren't founded on concepts of inalienable rights, Constitutional protections, etc.

In America, millions of social conservatives want to ban same-sex marriage, but when it comes down to it, they can't seem to explain exactly why. So maybe it's not just litigous same-sex marriage proponents that are causing the controversy.
hayleyanne
QUOTE(Robert B @ Apr 28 2005, 08:48 AM)
QUOTE(hayleyanne @ Apr 28 2005, 05:38 AM)
 

I would suggest that those countries where gay unions were "legislated" that acceptance was less controversial and easier.  In the U.S. much of the problem is that the attempt for change has come through courts, where such rulings have been swiftly met with legislative responses (fed DOMA, state DOMAs, state amendments).


And why have proponents of same-sex marriage resorted to the courts, selfishly stirring up controversy? Perhaps it's that, compared to other countries, a higher proportion of Americans indulge in unreasoned prejudice against same-sex couples desiring marriage. And the courts and Constitution are seen as a last defense against the tyranny of the majority.

Don't get me wrong; I would prefer a legislative solution. But as long as enough people get to hide behind unexamined, specious notions of "defending marriage" or American exceptionalism or whatever, sheer weight of numbers will win out over all other considerations. And that's when those who see themselves as being denied the right to marry take it to court.

Maybe they should quietly acquiesce to their lot, but that's hard to stomache when they see citizens of many other countries accorded the right they want - even countries that weren't founded on concepts of inalienable rights, the rule of law, etc.

In America, millions of social conservatives want to ban same-sex marriage, but when it comes down to it, they can't seem to explain exactly why. So maybe it's not just litigous same-sex marriage proponents that are causing the controversy.
*



I disagree RobertB. Those who want to change the law to include same sex unions have to choose a strategy. As with all "causes" there is a limited amount of resources. Where should they expend their resources? I think that is the relevant question. They can choose to expend their resources battling the issue in the courts. Or, they can spend them making a case in the court of public opinion. The former strategy has backfired on them. When it all shakes out people don't like getting change "forced" on them. People need to believe that they arrived at the decision on their own for there to be true societal acceptance. IMO gay marriage advocates would have been much better served making a strong case to the public directly. In any number of ways: through true civil rights type demonstrations; through advertising; sponsoring open forums where people can come together and discuss the issue etc.
CruisingRam
Change is almost always FORCED upon the majority- especially when the majority is so clearly wrong.

What was the civil rights movement supposed to do- wait until white middle class america decided to grow up and not be racist anymore? hmmm.gif - no, sometimes bigots and racists have to be drug kicking and screaming into the modern world and away from their parochial home lives.

To me, the current fight against our homophobic nation makes these guys freedom fighters- and that is truly what it boils down to- fighting for freedom.

In the end, we will have equal marriage rights for these guys, and some folks are going to get thier little feelers hurt simply because they can't handle others having the same freedoms as themselves.

Their really is no legal argument against same sex marriages- that is why the right wing needs a constitutional amendment- there is no legal argument to keep discriminating against gays.
Google
Robert B
QUOTE(hayleyanne @ Apr 28 2005, 07:59 AM)
People need to believe that they arrived at the decision on their own for there to be true societal acceptance.


This would be great, but how can this happen if the vast majority of people refuse to discuss the issue in reasoned good faith?

Even on a forum dedicated to rational debate, same-sex marriage opponents don't debate constructively. When I point out the speciousness of their arguments (eg "same-sex marriage ban is the only thing keeping same-sex siblings from being able to marry", "same-sex marriage undermines the institution of marriage"), debaters just go silent. It's as if they're throwing in the towel on reasoned discussion because hey, they're in the majority and so they don't have to put forth any effort to justify denying minority rights - especially if the minority makes most people uncomfortable. Heck, seeing two guys kiss makes me uncomfortable, but I recognize that this doesn't justify arbitrarily saying "No marriage for you!".

So anyway, yes, it would be great if same-sex couples could find a way to sell their message to the very apathetic and prejudiced voting public. But I can't blame them for not wanting to wait around any longer.
Jack22
QUOTE(entspeak @ Apr 20 2005, 07:42 AM)
1.  Same-sex marriage does not redefine marriage.

2.  There is no slippery slope to polygamous and incestuous marriage.


For the purpose of this debate, I ask that you accept these two statements as true.  If you would like to challenge these two statements, please do so in the History of Marriage as an Institution thread where it is relevant to do so.  There are compelling arguments as to why these statements are true in that thread, you can challenge them there.
As Entspeak has suggested, I have soundly refuted his premises in the other thread (page 17), and will restrict myself in this thread to considering the possibility that his illogical premises are true, but only for the sake of discussion, and not because I believe them to be reasonable.

What is a valid legal argument for or against the State's explicit exclusion of same-sex couples from marriage?

If there is no slippery slope to incest and polygamy, then states are fully within their rights to exclude certain people from the pool of consenting adults whom an individual is allowed to marry, even if the reason for exclusion is immutably genetic (as in the case of incest). If states have the power to deny marriage privileges based on numbers and genetics, then it stands to reason that states also have the power to deny marriage privileges based on gender, which is a genetic feature. Q.E.D.

QUOTE(entspeak @ Apr 20 2005, 07:42 AM)
I ask, when responding to this question, that you be willing to support your argument with some sort of evidence of its credibility.
*



I have not strayed beyond a logical extension of the (unsound) premises that Entspeak has proposed, so my reasoning derives its credibility from the same credibility he has asserted for his assumptions. However, I acknowlege there might be objections to my reasoning worthy of debate, and relevant issues worthy of discussion which I have not addressed in this post.

edited to correct some grammar
Robert B
QUOTE(Jack22 @ Apr 28 2005, 10:24 AM)
If states have the power to deny marriage privileges based on numbers and genetics, then it stands to reason that states also have the power to deny marriage privileges based on gender, which is a genetic feature.


...which also applies to a ban on inter-racial marriage, since race is also (ostensibly) a genetic feature. Or am I missing something?
Jack22
QUOTE(Robert B @ Apr 28 2005, 11:45 AM)
QUOTE(Jack22 @ Apr 28 2005, 10:24 AM)
If states have the power to deny marriage privileges based on numbers and genetics, then it stands to reason that states also have the power to deny marriage privileges based on gender, which is a genetic feature.


...which also applies to a ban on inter-racial marriage, since race is also (ostensibly) a genetic feature. Or am I missing something?
*

You're right, but don't blame me, I'm not the one who placed unreasonable restrictions on this debate! A patch would be to simply add, "except with respect to race," to my earlier argument, but I agree exceptions tend to weaken that particular argument. In an attempt to "make do" under unreasonable circumstances, a somewhat different argument to avoid the race exception might go something like this:

If there is no slippery slope to polygamy, then each state has the power to withhold marriage privileges based on behavior it does not want to encourage. If each state has the power to withhold marriage privileges based on behavior it does not want to encourage, and if that state does not want to encourage homosexuality, then it stands to reason that each state also has the power to withhold marriage privileges based on homosexuality. Q.E.D.

Any better? Now we have eliminated the genetic aspect of the argument completely. However, I'm sure the argument remains weak, having been derived from premises I have refuted. I'm trying to do the best with what I have to work with.
hayleyanne
QUOTE
Their really is no legal argument against same sex marriages- that is why the right wing needs a constitutional amendment- there is no legal argument to keep discriminating against gays.


I think it is the other way around. There really is no principled basis for reading a right to gay marriage into the constitution. The Federal Marriage Amendment is a perfect example of the type of response that you get when you try to force social change through the courts. An amendment is the only way to stop the courts from reading this right into the constitution.

And it is not true that all social change must be forced. The civil rights movement changed this country. It resulted in the civil rights act of 1964. Through good old fashioned demonstrations and protest and lobbying and making their case to the american people-- we got true change: legislative change. It was never forced on us. The Brown decision did nothing to "force" any true change at all. Brown dealt with segregation in our schools. Fifty one years later, our schools are de facto segregated.

QUOTE
This [taking the case to the public] would be great, but how can this happen if the vast majority of people refuse to discuss the issue in reasoned good faith?


The problem is that the court decisions put people on the defensive. I know they have with me. I resent the courts twisting the constitution to find new "rights". I am not opposed to reasonably discussing civil unions. Heck, I would vote for civil unions. You can't have honest and open discussion when one side is trying to trump the democratic process.
CruisingRam
QUOTE(hayleyanne @ Apr 28 2005, 09:47 AM)
QUOTE
Their really is no legal argument against same sex marriages- that is why the right wing needs a constitutional amendment- there is no legal argument to keep discriminating against gays.


I think it is the other way around. There really is no principled basis for reading a right to gay marriage into the constitution. The Federal Marriage Amendment is a perfect example of the type of response that you get when you try to force social change through the courts. An amendment is the only way to stop the courts from reading this right into the constitution.

And it is not true that all social change must be forced. The civil rights movement changed this country. It resulted in the civil rights act of 1964. Through good old fashioned demonstrations and protest and lobbying and making their case to the american people-- we got true change: legislative change. It was never forced on us. The Brown decision did nothing to "force" any true change at all. Brown dealt with segregation in our schools. Fifty one years later, our schools are de facto segregated.

QUOTE
This [taking the case to the public] would be great, but how can this happen if the vast majority of people refuse to discuss the issue in reasoned good faith?


The problem is that the court decisions put people on the defensive. I know they have with me. I resent the courts twisting the constitution to find new "rights". I am not opposed to reasonably discussing civil unions. Heck, I would vote for civil unions. You can't have honest and open discussion when one side is trying to trump the democratic process.
*



You ought to know better hayleyanne- before the marches, there were numerous challenges at the court level- Loving vs Virginia predates the 1964 legislation by what, 10 years? There was alot of violence and jury nullifications towards civil rights issues before the tide turned against bigotry- and the case is very similar here- we have a oppressed minority, and the majority doesn't like it that they are getting "uppity" and going to the courts to demand thier rights- which is the true great thing about our nation- when we have a tyranny of the majority, there is a relief for the minority- and the Christian right knows this and knows they will lose in courts unless they

A) Stack the courts with ideologues hand picked by Delay and Fallwell i.e.- Jury nullifications of the 50s against Klan members and lynch mobs

cool.gif provide a constitutional marriage amendment making decisions like Loving vs Virginia null and void.
Zarathustra
QUOTE(entspeak @ Apr 20 2005, 09:18 AM)
QUOTE(Zarathustra @ Apr 20 2005, 11:14 AM)
I don't think there is anything to discuss here Ent. By accepting your statements, one is saying that the institution of marriage will not be changed in significant way. The entire argument over allowing same-sex marriage is based on how it will effect our society... if you're limiting the discussion by saying marriage will not be re-defined or changed, then there is no argument. zipped.gif
*




Well, Zar... you have yet to put forth a rational explanation in the History of Marriage thread as to how it is significantly changed beyond the changing of 5 words "a man and a woman". You haven't shown why it is important to make this explicit distinction that hadn't been made in State law until 1973. You are using the law in question as the sole justification for its own existence. Marriage is defined as being between a man and a woman... why? The question is... why is this significant? If you are going to call this a definition, then the creation of such an explicit definition can't be arbitrary. If it is arbitrary, it is unconstitutional.

I'll copy this post into the History of Marriage thread where it is relevant. Hopefully, you can answer this there.

QUOTE
Matter of fact... if we aren't changing the definition of marriage, what exactly are we changing? It would seem to me that gay marriage is already allowed, if that's the case. Problem solved... carry on!


Good. Well, I'm glad that you've acknowleged that if there is no re-definition of marriage, there is no valid justification for making same-sex illegal by making a law that "defines" marriage as being between a man and a woman.
*



You're avoiding the question, and with it any pretense of logical sense.

If marriage has never been limited to a man and a woman--as you claim--then why can't gays be married now? If the definition of marriage included gays then everyone would accept it. Unbelievably, this argument has moved from a discussion of the 'definition of marriage' to an argument over the 'definition of definition'.

From Merriam Webster:

Main Entry: def·i·ni·tion
Pronunciation: "de-f&-'ni-sh&n
Function: noun
Etymology: Middle English diffinicioun, from Middle French definition, from Latin definition-, definitio, from definire
1 : an act of determining; specifically : the formal proclamation of a Roman Catholic dogma
2 a : a statement expressing the essential nature of something b : a statement of the meaning of a word or word group or a sign or symbol <dictionary definitions> c : a product of defining
3 : the action or process of defining
4 a : the action or the power of describing, explaining, or making definite and clear <the definition of a telescope> <her comic genius is beyond definition> b (1) : clarity of visual presentation : distinctness of outline or detail <improve the definition of an image> (2) : clarity especially of musical sound in reproduction c : sharp demarcation of outlines or limits <a jacket with distinct waist definition>
- def·i·ni·tion·al /-'ni-sh&-n&l/ adjective


If, according to definition, men could marry men and women could marry women, then we'd see it in the real world--it would be an expression of 'the essential nature of something'. In other words, everyone would accept it as so because it would reflect reality. But guess what? Until very recently, this wasn't the case. Why is that? It's because homosexual marriage has never achieved widespread acceptance or recognition in any major civilization.

Definitions are the widespread agreements on the meaning of words inside a society. You're changing the definition of marriage. If you weren't changing the definition, then no one would have problem with gay marriage.

By the limitations you placed on this thread, there is no room for argument. Your limitations imply that nothing is changing. Marriage will stay fundamentally the same as it was in 1975 or 1900 or 1776. (To say that nothing is changing is such an absurd statement--completely disconnected from reality--but nonetheless, this is your thread.)

So under the terms of this thread, I agree with you completely. If marriage isn't changed at all, then I am completely for gay marriage. Matter of fact, if the constitution isn't changed at all, I'm completely for a third Bush term. Also, if the UN charter isn't changed at all, I'm completely for the US being the sole security council member.
hayleyanne


QUOTE
You ought to know better hayleyanne- before the marches, there were numerous challenges at the court level- Loving vs Virginia predates the 1964 legislation by what, 10 years? There was alot of violence and jury nullifications towards civil rights issues before the tide turned against bigotry- and the case is very similar here- we have a oppressed minority, and the majority doesn't like it that they are getting "uppity" and going to the courts to demand thier rights- which is the true great thing about our nation- when we have a tyranny of the majority, there is a relief for the minority- and the Christian right knows this and knows they will lose in courts unless they


And I do know. What you are saying is not true. Take a look at this timeline:

http://www.infoplease.com/spot/civilrightstimeline1.html

Loving was decided in 1967. The civil rights movement certainly took hope in the unanimous Brown decision, but Brown itself is not what implemented the changes. Like I said, Brown ordered desegregation of schools. But ultimately, it didn't even achieve that did it? Many of our schools are de facto segregated. The civil rights movement took its cause to the streets and made its case to the american people and we changed the laws. They did the hard work-- protests, demonstrations, etc. Court ordered conduct can only go so far. Ultimately, these kinds of battles must be fought and win in the hearts and minds of the people.



CruisingRam
Sorry, my bad on the loving case- I thought it was 57, not 67 - however- if you look at your own timeline, the courts started the battle, with a decision unpopular among whites, which led to an extreme response (lynching) which led to a similar extreme response (organized massive protest) that nearly escalated into civil war.


I see this movement paralleling the civil rights movement, with both sides becoming more sophisticated- especially by the right- instead of outright lynching, they are simply attempting to stack the court with activist conserative judges with a litmus test of being anti-gay.

entspeak
QUOTE(Jack22 @ Apr 28 2005, 01:17 PM)
If there is no slippery slope to polygamy, then each state has the power to withhold marriage privileges based on behavior it does not want to encourage. If each state has the power to withhold marriage privileges based on behavior it does not want to encourage, and if that state does not want to encourage homosexuality, then it stands to reason that each state also has the power to withhold marriage privileges based on homosexuality. Q.E.D.

Any better? Now we have eliminated the genetic aspect of the argument completely. However, I'm sure the argument remains weak, having been derived from premises I have refuted. I'm trying to do the best with what I have to work with.
*



Homosexuality, last I checked was not illegal. Even before Lawrence there were only 13 states with bans on sodomy. If homosexuality isn't illegal, the State can't deny the right to marriage based solely on the majority's view that it is immoral and shouldn't be encouraged. It the State didn't want to encourage homosexuality, it would be illegal. However, due to the fact that we homosexuals can't have our cake and eat it too, if sodomy is legal for heterosexuals, it has to be legal for homosexuals. That's the funny thing about an equal protection clause.

QUOTE(Zarathustra)
Your limitations imply that nothing is changing.

Well, Zar... head over to the other thread and tell me what in the contract changes. If you are claiming that "between a man and a woman" was an essential explicit addition to the laws, head over there and tell me why. Of course there is a change in society in that same-sex couples will be allowed to marry, but that doesn't mean that marriage changes. Marriage only changes if the contract changes. To argue that -- "marriage is a contract between a man and a woman" -- is part of the contract is a circular arugment. Marriage is a contract. "Between a man and a woman" is an explicit limitation regarding who can engage in the contract. The argument I put forth in the other thread is that this explicit limitation is unnecessary. If it is unnecessary, it is unconstitutional.

QUOTE
If you weren't changing the definition, then no one would have problem with gay marriage.


You're joking, right? Ask Hayleyanne how she feels about the idea of same-sex couples being married and I think you'll get quite a different answer than that. She does not want homosexual relationships to be considered equal to heterosexual relationships. She does not want any equal comparison between homosexual couples and heterosexual couples. Heterosexual couples are superior to homosexual couples. That has nothing to do with a definition of marriage.

QUOTE(Bikerdad)
What is a valid legal argument for or against the State's explicit exclusion of same-sex couples from marriage? Legal argument? A legal argument is one based on laws on the books. Thus, for Ohio, Nevada, Missouri, Oregon, Louisiana, etc, the valid legal argument is their state Constitutions. Nothing more is required. For other states that have passed statutes limiting marriage, there may be some question as to whether or not those laws conflict with their state constitutions. The second aspect, for those states that haven't addressed the question at all, is common law, which has defined marriage as being between parties of the opposite sex since before our country was founded. Even during the brief period when polygamy was being practiced in the Utah Territory, marriage was exclusively between members of the opposite sex. When one gets to the Federal level, the valid legal argument is DoMA and state's rights.

Those laws are the explicit exclusion in question. To argue that these laws are the legal argument for their own existence is a circular argument.

Regarding common law, historically the exclusion was implicit in the marriage contract, yes. I agree. However the marriage contract which made up this "common law" exclusion no longer exists in that form. The laws that make up the marriage contract no longer implicitly exclude same-sex couples.
Jack22
QUOTE(entspeak @ Apr 28 2005, 05:42 PM)
QUOTE(Jack22 @ Apr 28 2005, 01:17 PM)
If there is no slippery slope to polygamy, then each state has the power to withhold marriage privileges based on behavior it does not want to encourage. If each state has the power to withhold marriage privileges based on behavior it does not want to encourage, and if that state does not want to encourage homosexuality, then it stands to reason that each state also has the power to withhold marriage privileges based on homosexuality. Q.E.D.
*



Homosexuality, last I checked was not illegal.
Hmm.... Let me see where I asserted it was illegal.... oh, yeah, that's right-- I didn't. If you are asserting that homosexuality is legal and polyamory is not, then you are again mistaken. Therefore, any assertion that my reasoning would rely on homosexuality being illegal would be a straw man.

QUOTE(Entspeak)
If homosexuality isn't illegal, the State can't deny the right to marriage based solely on the majority's view that it is immoral and shouldn't be encouraged.
But as my reasoning points out, polyamory is not illegal, and yet, polygamous marriage is illegal. If states can deny polygamous marriage on the basis that it does not wish to actively promote polyamory, then states can also deny same sex marriage on the basis that it does not wish to promote homosexuality.

QUOTE(Entspeak)
It the State didn't want to encourage homosexuality, it would be illegal.
Really? The idea that the state wants to encourage everything that does not violate law will not hold up under any scrutiny at all. Smoking is not illegal-- therefore the state wants us to encourage it, so we should all go out and get a chain-smoking habit because the state believes this is good for us because it is not illegal.

On a more salient issue, try polyamory-- there's no law against polyamory so we should all shack up with at least two other people because the state is encouraging us to by not making it illegal-- but when we go to get a marriage license for the seven of us-- all of the sudden we can't get one because to do so would be polygamy, which we are assuming in this thread is rightly illegal.

Therefore, if the state can rightly ban polygamy so as not to encourage legal polyamory, then the state can rightly ban same-sex marriage so as not to encourage legal homosexuality.

Your response to my post in the other forum was similarly full of straw-man arguments. You assumed that because I referenced the US legal tradition that I was talking about the technical wording of statutory law rather than the practical effect of law, which trumps loopholes in redefinition of words. You assumed that because I argued that polygamy and incest fit the world-history definition of marriage just as well as same-sex marriage fits the definition of marriage, that I was arguing one leads to the other, but I did not.

As I suspected, your post in this thread and the other thread did not direct address any of the points I raised-- not even one. Surely my reasoning can be assaulted directly without constructing irrelevant straw men.
Bikerdad
QUOTE
If they can keep the debate framed as a matter of Constitutionality or political viablity or dubious sociological speculation, then they don't have to admit that they can present no rational, moral reason to keep same-sex marriage illegal. - Robert B
If you'll note in both my post, and more significantly, the question is limited to legal arguments. The arguments I have present are rational, as in "reasoned", based upon current law. If you want to piddle and moan about the my failure to provide moral arguments in this thread, take it up with the guy who started it, he set the parameters, I'm simply attempting to respect them. There's lots more rational arguments to be made against same-sex "marriage" based on morals, economics, anthropology, sociology, politics, and justice, but those realms are not within the scope of the question. Capiche?

QUOTE
Argentina, Australia, Belgium, Brazil, Canada, Croatia, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Israel, Liechtenstein, Luxembourg, Netherlands, New Zealand, Norway, Poland, Portugal, South Africa, Spain, Sweden, Switzerland and Taiwan recognise same sex marriages or civil unions. - Vermillion
Uhhh, not exactly. The list you've trotted forth is of countries that recognize or propose to recognize same-sex couples. In many instances, the existing laws or proposals merely amount to granting them the same status as cohabitating (not married) hetero couples, and is often even less than that. Here's one example, from Argentina Argentina
Rio Negro Province, Unregistered Cohabitation, 2002
The law grants same-sex couples the same rights as enjoyed by de-facto unions at the province level, except the possibility to marry and adopt children.
Stonewall UK

QUOTE
More to the point, the overwhelming trend across the western world has been towards recognising the right of co-habitation and civil union rights for homosexuals. Apart from the list above, MANY more (such as the UK for example) are currently in the process of developing such laws.
As noted, the list above ALREADY includes those where such laws are under consideration. Aside from the UK, what are your "others"? Furthermore, the list above includes many instances where the civil unions are only recognized within sub jurisdictions of the country in question.

QUOTE
Oh, and by the way, in those countries where it has been legalised the social fabric of society has NOT disintigrated, as some on the far right would have you believe will happen.
Dutch Scholars Raise concerns about impact of gay marriage

QUOTE
Of course, thats a rather sad fact, but none the less still valid. However, please don't try and invoke international support for this argument, as the evidence is strictly on the other side.
Is it? Out of how many countries in the world is same-sex marriage (not to be picky, but that is the topic, not cohabitation or civil unions) the law of the land? By your count, only 7 (and that's using a definition of civil unions as legally identical to marriage and restricted to same-sex couples only, which I'll grant for the sake of civility)... of 160+ Same sex marriage is still overwhelmingly rejected. From a LEGAL standpoint though, none of that should matter, as long as the US is a soveriegn nation. I'm simply pointing out that even Kennedy's cockamanie reasoning on juvenile capital punishment doesn't have legs here. Perhaps it will in 5,10, or maybe 50 years, but right now the numbers clearly aren't in the SSM advocate's favor. The trend may be, but as any prospectus will tell you, past results are no guarantee of future returns...

QUOTE
think this raises a very interesting question. I think if the trend in the U.S. is to NOT recognize gay marriage and the trend --- as vermillion states -- in these other countries is to recognize some form of gay unions: Why is that? - Hayleyanne
Socialism and the breakdown of traditional structures. The more advanced these two factors are, the more accepting of SSM (or SSM lite) the countries have been.

QUOTE
Does anyone know how these other countries came to recognize gay unions? I think Scanidinavia was through legislation. U.K. is considering legislation. Canada was in the courts, I think? - Hayleanne
Its been a mix. Scandinavia through legislation, Canada through courts, UK a mix of both, etc. Info on "how" is widely available, you can start with the Stonewall link above. It should be noted that the Canadian situation is heating up, as several provinces have flatly said "no" to SSM, and the proposed Federal law is running into heavy opposition.

QUOTE
Perhaps it's that, compared to other countries, a higher proportion of Americans indulge in unreasoned prejudice against same-sex couples desiring marriage. And the courts and Constitution are seen as a last defense against the tyranny of the majority.- Robert B
Wow, it took 9 posts before the hoary old "homophobe" attack comes out. Prettied up I'll admit, but the same attack. "Unreasoned prejudice"... whistling.gif

QUOTE
Even on a forum dedicated to rational debate, same-sex marriage opponents don't debate constructively. - RobertB
Yah, rational debate like this... To me, the current fight against our homophobic nation makes these guys freedom fighters- and that is truly what it boils down to- fighting for freedom.

I've laid out the legal reasons. The fact that you disagree with the conclusions means I'm not "debating constructively"? w00t.gif

Incidentally, you haven't laid out any "rational" reasons for exercising the power of the state to bind third parties to recognize and support an irrational choice made by two homosexuals. So, it seems as though your failing to live up to your own standards. You've also failed to provide any legal arguments in support of SSM, at least in this thread.

What you have done, as has CruisingRam, is deployed the "homophobe" ad hominem attack, rather than simply answering the topic's questions.
entspeak
QUOTE(Jack22 @ Apr 28 2005, 07:32 PM)
But as my reasoning points out, polyamory is not illegal, and yet, polygamous marriage is illegal.


You are quite right, I apologize for the misunderstanding. However, cases involving polygamy (primarily coming out of Utah) illustrate that the State's interest does not relate to discouraging polyamorous behavior:

QUOTE
From Utah v. Green, (2004):
     The State of Utah's interest in regulating marriage has resulted in a network of laws, many of which are premised upon the concept of monogamy.  Potter, 760 F.2d at 1070 n.8 (citing several such laws). In Potter, the Tenth Circuit found this network itself to evidence a "compelling" state interest in prohibiting bigamous associations. Id. at 1070 ("[T]he State of Utah beyond the declaration of policy and public interest implicit in the prohibition of polygamy under criminal sanction, has established a vast and convoluted network of other laws clearly establishing its compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.").

    Beyond the State's interest in regulating marriage as an important social unit, or in maintaining its network of laws, Utah's bigamy statute serves additional legitimate government ends. Specifically, prohibiting bigamy implicates the State's interest in preventing the perpetration of marriage fraud, as well as its interest in preventing the misuse of government benefits associated with marital status.

     Most importantly, Utah's bigamy statute serves the State's interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support. See Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Pol'y 225, 239-45 (2001).(14) Moreover, the closed nature of polygamous communities makes obtaining evidence of and prosecuting these crimes challenging. See id. at 243 ("Given the highly private nature of sexual abuse and the self-imposed isolation of polygamous communities, prosecution may well prove impossible. This wall of silence may present a compelling justification for criminalizing the act of polygamy, prosecuting offenders, and effectively breaking down the wall that provides a favorable environment in which crimes of physical and sexual abuse can thrive.").

     All of the foregoing interests are legitimate, if not compelling, interests of the State, and Utah's bigamy statute is rationally related to the furthering of those interests. We therefore hold that Utah's bigamy statute does not violate the Free Exercise Clause of the First Amendment of the United States Constitution.


So the State's compelling interest in making polygamy illegal (and not only that... criminal -- in most states bigamy, and therefore polygamy, is a felony) has not been discourage polyamorous behavior (such an interest is not mentioned in contemporary judicial analysis of the constitutionality of polygamy laws), but to serve other compelling interests. So your argument falls apart.

Likewise, the State would have to show a compelling interest in excluding same-sex couples. It obviously isn't for the same State interests that polygamy is illegal. So, what is it?

And legal tradition, in and of itself is not enough. Many legal traditions regarding marriage have changed, have they not?
Jack22
QUOTE(entspeak @ Apr 28 2005, 08:42 PM)
QUOTE(Jack22 @ Apr 28 2005, 07:32 PM)
But as my reasoning points out, polyamory is not illegal, and yet, polygamous marriage is illegal.


You are quite right, I apologize for the misunderstanding. However, cases involving polygamy (primarily coming out of Utah) illustrate that the State's interest relates not to discouraging polyamorous behavior, but to:


Now, we're getting somewhere.

But, before analyzing the case you cited, I'd like to point out that it merely itemizes the reasons why the state does not want to encourage polyamorous behavior as a basis for marriage-- it does not deny the fact that the state has the power to deny marriage privileges based on behavioral considerations relating to polyamory-- in fact, it proves that states do have this power by specifically itemizing some of the concerns with polyamory that make it an undesirable basis for marriage in the state.

Furthermore, as I pointed out in the other thread, polygamy (polyamorous marriage) is a practice that was at one point considered a valid form of marriage under a portion of US legal tradition-- as a result, there had to be a compelling case against polyamory as a basis for marriage in order to strike the practice down in Utah. In contrast, same-sex marriage is fundamentally different in that the US legal tradition prior to 2001 has never considered same-sex marriage valid, so before overturning a body of law that has been consistently construed in opposition of same-sex marriage, the state must prove a compelling interest in favor of awarding marriage privileges on the basis of homosexuality-- otherwise, in order for the rule of law to prevail, the consistent status quo must be upheld.

But even though the burden of proof in this case is clearly not on my side of the debate, I believe a case can be made against behaviors associated with homosexuality that is at least as strong as this case's claims of behaviors typically associated with polyamory that make polygamy and undesirable form of marriage.

QUOTE
From Utah v. Green, (2004):
     The State of Utah's interest in regulating marriage has resulted in a network of laws, many of which are premised upon the concept of monogamy.  Potter, 760 F.2d at 1070 n.8 (citing several such laws).
Under US legal tradition, monogamy with respect to marriage has been consistently applied to imply heterosexual monogamy, therefore, there is no difference in US law between the word monogamy and the phrase "heterosexual monogamy," so the wording of this statement does not leave room for condoning homosexual monogamy merely by the use of the term "monogamy."

QUOTE
In Potter, the Tenth Circuit found this network itself to evidence a "compelling" state interest in prohibiting bigamous associations. Id. at 1070 ("[T]he State of Utah beyond the declaration of policy and public interest implicit in the prohibition of polygamy under criminal sanction,
Here we have the smoking gun that proves my case-- a "declaration of policy and public interest implicit in the prohibition of polygamy" (polyamorous marriage) "under criminal sanction." The case declares polygamy is implicitly criminal, but the reasoning also goes beyond being implicitly criminal as described in the next clause.

QUOTE
has established a vast and convoluted network of other laws clearly establishing its compelling state interest in and commitment to a system of domestic relations based exclusively upon the practice of monogamy as opposed to plural marriage.").
Here again, US legal tradition has consistently interpreted law such that "monogamy" and "heterosexual monogamy" are interchangeable terms and not to be construed as "homosexual monogamy."

The fact that the state has "stablished a vast and convoluted network of other laws clearly establishing its compelling state interest" does not negate the first point, that polygamous marriage is implicitly criminal, but as I have stated earlier, it was necessary in Utah to prove a compelling state interest against the legal tradition of polyamorous marriage, whereas it is now necessary for the state to prove a compelling interest in favor of homosexuality in order to overturn the existing legal tradition, partially proven by this very case, that heterosexual monogamy is so much more preferable than other forms so as to preclude them implicitly.

QUOTE
    Beyond the State's interest in regulating marriage as an important social unit, or in maintaining its network of laws,
...again going "beyond," meaning that the "State's interest in regulating marriage as an important social unit, or in maintaining its network of laws" is completely valid, and then going farther...

QUOTE
Utah's bigamy statute serves additional legitimate government ends.
Here, the word "additional legitimate government ends" clearly refers to the "State's interest in regulating marriage as an important social unit, or in maintaining its network of laws" as a "legitimate end."

QUOTE
Specifically, prohibiting bigamy implicates the State's interest in preventing the perpetration of marriage fraud, as well as its interest in preventing the misuse of government benefits associated with marital status.
The activities here also apply to homosexuality-- the attempt to get "government benefits associated with marital status" and "marriage fraud" that the state doesn't want polyamorous marriages to posess would also apply to homosexual marriages if the state did not want to encourage homosexual, polyamorous and heterosexual marriage equally.

QUOTE
Most importantly,
.. that which came before was important, but with regard to the particular case of Utah v. Green, what follows is even more important...

QUOTE
Utah's bigamy statute serves the State's interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support. See Richard A. Vazquez, Note, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revisiting Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Pol'y 225, 239-45 (2001).(14)
Here, we have a laundy list of what any polyamorist would consider overt bigotry against polyamory-- but since you cited and quoted the case, you are thus allowing into evidence a similar laundry list of what many homosexuals would consider overt bigotry-- the close relationship between homosexuality and AIDs, the high rates of homosexuality among pedophiles ("statutory rape" from the above clause), sexual assault (particularly in prisons), etc. Each of these is accompanied by as much, if not more, statistical evidence as the laundry list against the "polyamory community."

QUOTE
Moreover, the closed nature of polygamous communities makes obtaining evidence of and prosecuting these crimes challenging. See id. at 243 ("Given the highly private nature of sexual abuse and the self-imposed isolation of polygamous communities, prosecution may well prove impossible. This wall of silence may present a compelling justification for criminalizing the act of polygamy, prosecuting offenders, and effectively breaking down the wall that provides a favorable environment in which crimes of physical and sexual abuse can thrive.").
It could be argued, admittedly weakly, that the fear of litigation with respect to denying benefits to people in the proverbial "homosexual community" generates a similar chilling effect on the ability of others to defend themselves against what the first clause called "marriage fraud" or benefits on par with marriage even without being married, as well as our laundry list of "bigotry" from the previous clause. Furthermore, with resepect to this clause the "in-the-closet" phenomenon could be considered to apply equally to homosexuality and polygamy.

QUOTE
All of the foregoing interests are legitimate, if not compelling, interests of the State,
.. Here, "All" means "All"-- this entire passage we have been discussing, not just the previous paragraph...
QUOTE
and Utah's bigamy statute is rationally related to the furthering of those interests. We therefore hold that Utah's bigamy statute does not violate the Free Exercise Clause of the First Amendment of the United States Constitution.
And thus, if this ruling is valid, then a state prohibition of same sex marriage also "does not violate the Free Exercise Clause of the First Amendment of the United States Constitution."

Now, on to Entspeak's interpretation...

QUOTE(Entspeak)
So the State's compelling interest in making polygamy illegal (and not only that... criminal -- in most states bigamy, and therefore polygamy, is a felony) has not been discourage polyamorous behavior (such an interest is not mentioned in contemporary judicial analysis of the constitutionality of polygamy laws), but to serve other compelling interests.  So your argument falls apart.
I believe my analysis of the case you presented clearly invalidates your conclusion. The law you cited in itself very clearly stated its intent was to "discourage polyamorous behavior" and thus, "such an interest" is "mentioned in contemporary judicial analysis of the constitutionality of polygamy laws" (Entspeak's wording), as well as "to serve other compelling interests."

QUOTE(Entspeak)
Likewise, the State would have to show a compelling interest in excluding same-sex couples.  It obviously isn't for the same State interests that polygamy is illegal.  So, what is it?
*

As I reasoned at the beginning of this post, it was necessary to argue a compelling interest against polygamy because at one time it had been allowable under a portion of US legal tradition-- because the US legal tradition clearly opposes the idea that homosexual relationships are a legal basis for marriage, the burden of proof shifts, and without providing an unassailable case that homosexual relationships should be encouraged on par with heterosexual relationships, then there is no basis in law to overturn a consistent body of legal tradition.

Also by US legal tradition, when the burden of proof shifts to prove a positive in order to overturn prior legal tradition, the appropriate forum of proof also shifts from the judicial branch to the legislative branch-- if legislative branch becomes convinced that a consistent body of legal tradition is wrong, the legislative branch can pass a new law to correct the problem-- and so long as it doesn't violate higher laws, then the issue has been resolved in the appropriate forum. Therefore, the appropriate forum for attempting to overturn consistent legal tradition against same-sex marriage is the State legislature or constitution.

edited to fix some grammar
Robert B
QUOTE(Bikerdad @ Apr 28 2005, 08:47 PM)
QUOTE
If they can keep the debate framed as a matter of Constitutionality or political viablity or dubious sociological speculation, then they don't have to admit that they can present no rational, moral reason to keep same-sex marriage illegal. - Robert B


If you'll note in both my post, and more significantly, the question is limited to legal arguments. The arguments I have present are rational, as in "reasoned", based upon current law. If you want to piddle and moan about the my failure to provide moral arguments in this thread, take it up with the guy who started it, he set the parameters, I'm simply attempting to respect them.


BikerDad, it wasn't your post I was taking issue with. In fact, I said I agreed with you. I - like other posters in this thread - take issue with (or as you so helpfully put it "piddle and moan" about) the constraints imposed by the entspeak's initial conditions. I'm sorry I didn't make it clear enough that I agreed with you when I wrote "I agree with Bikerdad's conclusion here...".

QUOTE
There's lots more rational arguments to be made against same-sex "marriage" based on morals, economics, anthropology, sociology, politics, and justice, but those realms are not within the scope of the question.  Capiche?


Capiche? Yes Bikerdad, I "capiche" - in fact that was what I was "piddling and moaning" about; that the scope of the conditions was too limited to be useful.

QUOTE
Wow, it took 9 posts before the hoary old "homophobe" attack comes out.  Prettied up I'll admit, but the same attack.  "Unreasoned prejudice"...  whistling.gif


Wow, you bring up homophobia and yet I'm somehow the one responsible for bringing out the "homophobia attack". Nice trick, Bikerdad.

The reason I call it "unreasoned prejudice" and not homophobia is because it's not necessarily homophobia that keeps same-sex marriage illegal. I don't think most Americans are homophobes, they just have an unexamined but strongly-felt opinion that same-sex couples are so different from opposite-sex couples that marriage does not apply to them. (Context: This was in response to hayleyanne's position that SSM proponents should take the issue to the American voting public.)

So if you want me to call someone a homophobe, Bikerdad, you're going to have to find me an actual homophobe. Capiche?

QUOTE
I've laid out the legal reasons.  The fact that you disagree with the conclusions means I'm not "debating constructively"?  w00t.gif


Bikerdad, what exactly are you arguing here? The first sentence of my post said "I agree with Bikerdad's conclusions, if not his exact wording." How can you say that I disagree with your conclusions?

QUOTE
Incidentally, you haven't laid out any "rational" reasons for exercising the power of the state to bind third parties to recognize and support an irrational choice made by two homosexuals.  So, it seems as though your failing to live up to your own standards.  You've also failed to provide any legal arguments in support of SSM, at least in this thread.


I think maybe we are talking past one another. You basically said "The majority rules." I agreed with you but added that the minority must hold the majority accountable for its position if the minority position is truly rational, moral, and just (which of course I think it is). I did not attempt a legal argument because I (like other posters in this thread) find the initial constraints problematic.

QUOTE
What you have done, as has CruisingRam, is deployed the "homophobe" ad hominem attack, rather than simply answering the topic's questions.


Guilty as charged on not simply answering the topic's questions. But Bikerdad, 1) who did I attack ad hominem, and 2) who did I call a "homophobe"? If I've done so, report me to the mods. If I haven't, it makes it look like you're just trying to score rhetorical points by putting words in my mouth.

hayleyanne
QUOTE(CruisingRam @ Apr 28 2005, 05:31 PM)
Sorry, my bad on the loving case- I thought it was 57, not 67 - however- if you look at your own timeline, the courts started the battle, with a decision unpopular among whites, which led to an extreme response (lynching) which led to a similar extreme response (organized massive protest) that nearly escalated into civil war.


I see this movement paralleling the civil rights movement, with both sides becoming more sophisticated- especially by the right- instead of outright lynching, they are simply attempting to stack the court with activist conserative judges with a litmus test of being anti-gay.
*




I am not denying that the Brown decision played a role in the civil rights movement itself. But it was the movement itself that ultimately changed our society.

And please do not throw around the term "activist" judge as regards those judges who would not find a constitutional right to gay marriage. As Bikerdad aptly pointed out, the law itself does not support finding such a right. To buck the law itself, which is what a judge would have to do if he finds a right to gay marriage, is what would be "activist" .
CruisingRam
I absolutely will call any judge that does not support the rights of gays as not only activist, but ignoring the law and using the bible to make decisions regarding gays.

The paralell between the civil rights movement and the gay rights movement is practicially transparent, the difference is both sides have become more sophisticated in their approach. Jury nullification for violence against gays probably won't fly too much anymore. hmmm.gif - so instead, GW starts appointing every Judge Roy Moore type Jerry Falwell can find for him- hoping that base will keep his poeple in power.

The ONLY basis for denying rights to gays is biblical- NOT legal.

If we are a secular nation, vs an Iranian style theocracy- there is no logical argument, legal or otherwise, that justifies the denying of rights to gays.

Robert B
QUOTE(CruisingRam @ Apr 29 2005, 08:01 AM)
If we are a secular nation, vs an Iranian style theocracy- there is no logical argument, legal or otherwise, that justifies the denying of rights to gays.


This is unproductive as well as inaccurate. In some states, there are very strong legal arguments against gay marriage.

Also, comparing same-sex marriage opponents to Iranian theocrats is insulting and counterproductive. For one thing, it implies that the only arguments against same-sex marriage are religious.

EDITED to tone it down a bit.
Jaime
Let's stop throwing around accusations of inflammatory comments & ad hominem attacks. That distracts from the debate. Please report infractions of the Rules so you do not take the debate off-topic. Thanks.

TOPIC:
What is a valid legal argument for or against the State's explicit exclusion of same-sex couples from marriage?

Jack22
QUOTE(CruisingRam @ Apr 29 2005, 09:01 AM)
I absolutely will call any judge that does not support the rights of gays as not only activist, but ignoring the law and using the bible to make decisions regarding gays.
As stated as part of the question in this thread, you will not be allowed to get away with making unsupported assertions. I have presented a case in this thread based entirely in logic and law without invoking religion, even under circumstances that many have evaluated as impossibly stacked against me. If you cannot prove that my case resorts to invoking religion (which you can't) then your assertion here is baseless and might even be considered inflammatory.

(edited to add-- in fact, in the other thread, I chose to cite instances of marriage being applied to polygamy and incest from the Judeo-Christian tradition in order to support the idea that such things would fit into the definition of marriage from a world history standpoint-- but if this is a use of religion, I have used it against the opinion of the religious right that such things defy the definition of marriage. But I also cited examples outside Judeo-Christian history, making those examples optional and certainly not central to my argument.)

QUOTE(CruisingRam)
The paralell between the civil rights movement and the gay rights movement is practicially transparent, the difference is both sides have become more sophisticated in their approach.
No, the difference is that homosexuality is a behavior, and almost all law is rooted in setting acceptible limits of behavior-- whereas race is not a behavior.

QUOTE(CruisingRam)
The ONLY basis for denying rights to gays is biblical- NOT legal.
Such an outlandish claim simply cannot be concluded based on the arguments I have presented in this thread.

QUOTE
If we are a secular nation, vs an Iranian style theocracy- there is no logical argument, legal or otherwise, that justifies the denying of rights to gays.
*

We are neither a secular nation nor a theocracy-- we were established as a representative democratic republic with religious liberty operating under the rule of law, not the rule of judges. Our government may neither establish a religion nor limit the free exercise thereof-- it is halfway between a secular nation and a theocracy-- both extremes being equally dangerous to the People. It is a fallacy to attempt to eliminate middle ground by attempting to set up a mutually exclusive situation between two extremes where one does not exist.

But the nature of our government is not at issue in this thread-- you have falsely asserted that the reasoning I have presented in this thread includes an unavoidable appeal to religion. Either prove it or concede that you are wrong.
CruisingRam
That is the point- there IS NO ARGUMENT against gay marriage that is not religiously based. As shown in the "how is marriage harmed" - there just is no legal only- based secular argument that flies in this debate.

Will I suddenly have to divorce my wife simply because some gays got married? hmmm.gif -

There has been absolutely no evidence OTHER than religious that have been offered in ANY debate on AD that is not religiously based in order to be anti-gay rights.

The entire anti-gay freedoms movement is a religious tyranical majority forcing it's views on the minority gays- and any legal debate is simply an attempt to find a way around giving them the same rights as hetero's enjoy.

Your arguments are circular, and there is nothing to concede- you wish to take away a right from a minority, period. Everything else is just silly semantics.
Jack22
QUOTE(CruisingRam @ Apr 29 2005, 09:58 AM)
Your arguments are circular, and there is nothing to concede- you wish to take away a right from a minority, period. Everything else is just silly semantics.
*

Again, you fail to demonstrate what you mean by citing an example. I will freely admit that my case is assailable-- entspeak has done an admirable job arguing against it. robert b pointed out how an earlier argument failed consider interracial marriage, so I conceded the point and revised my position. Please give constructive examples instead of making baseless allegations.

When you accuse me of wishing "to take away a right from a minority," you supply no proof. I have made the case that the entire legal tradition of the US prior to 2001 has consistently never been construed to include a right to SSM, therefore I am in no way arguing to take away a right that already exists-- my argument has be based upon a resistence to grant a right to SSM that would defy the consistently reinforced rights of the States to establish behavioral boundaries they deem appropriate with respect to marriage. Therefore, whose arguments would result in granting rights that do not yet exist while taking away existing rights? Not mine.

I believe it is Vermont whose legislature has voluntarily approved civil unions. If civil unions work out well enough for Vermont, the legislature may eventially decide to extend full marriage rights to same sex couples, and such would be completely legal and satisfactory in my opinion-- but if the SSM movement tries to force its hand in the courts, it runs the risk of a narrowly-defined Constitutional amendment that might just prevent Vermont and every other state from recognizing SSM. I don't want to see that happen-- I would much prefer for Congress and the courts to leave well enough alone and let the Vermont effect cascade across America if it is the right thing to do.

Different states have different speed limits, alcohol policies, tax codes, etc-- there's nothing cataclysmic about states also having different laws with respect to SSM or abortion. As a libertarian, I was glad to see the anti-sodomy laws struck down, but that doesn't mean I agree with all the details of how it was done, nor that the same tactics should be used to force the SSM issue. If the rule of law is to endure, we must not replace it with the rule of judges.
CruisingRam
Because all the arguments you have attempted to make are the same arguments that the anti-civil rights types attempted to make back in the 50s-60s/70s-

Basically, the right has ceded the fact that there is no way to keep SSM illegal- that is why they have acknowledged that they need an amendment.

With Vermont, we will have our "Loving vs Virginia" moment at some point- and it will make it's way to the SC and the only way to stop SSM will be to change the constition.

In every single argument made here, it was already made once before- during the civil rights era, and in fact, this is just an extension of that very movement.

The biggest difference is there is a much smaller minority fighting for rights, and unlike the genetic marker that makes you non-white, it is a tad harder to see the one that makes you gay LOL thumbsup.gif

I think you hit upon it with your sodomy law issue

Texas made sodomy iillegal- but only for gays- not for man and woman. This, by your own statement, was a correct legal decision, a law designed specifically against gays.

The civil war was, in many ways, a states rights issue- the confederates lost, and we have been rienging in states rights, especially particularly horrible ones, every sense, and a good thing too, because this country would have not survived in the confederate form prior to the civil war.

The states, from legal decision to legal decision, does not have the rights to take away fundamental rights of it's citizens under the banner of "state's rights"- and this is an area libertarians and myself part ways dramatically.

A single state, by the constitution (whichever amemdment is the full faith clause, I forget) must honor the rights given to USA citizens across the state lnes. This was the crux of the loving vs virginia case.

We, as a nation, are very fortunate that it is so difficult to get an amendment passed, because, whether the church likes it or not, eventually this will be legal.

I think many on this board do not understand how far the religious right is willing to go to make this land a theocracy- here:

Alabama Bill Targets Gay Authors

http://www.cbsnews.com/stories/2005/04/26/...ain691106.shtml

entspeak
QUOTE(Jack22 @ Apr 29 2005, 01:15 AM)
But, before analyzing the case you cited, I'd like to point out that it merely itemizes the reasons why the state does not want to encourage polyamorous behavior as a basis for marriage-- it does not deny the fact that the state has the power to deny marriage privileges based on behavioral considerations relating to polyamory-- in fact, it proves that states do have this power by specifically itemizing some of the concerns with polyamory that make it an undesirable basis for marriage in the state.

A simple itemizing the concerns? No. The State is very specific in declaring it's interest. The decision cites specific, compelling State interests related to keeping polygamy illegal. And they are not geared toward a simple discouraging of a specific type of behavior, but related to protecting citizens from potential abuse and a lack of equal protection, and the maintenance of a network of laws that exist in the marriage contract. Legally, it is very specific about why the state shouldn't recognize polygamy (an interest in maintaining of the laws that make up the marriage contract), and why most states don't just ban bigamy, but consider it a felony.

So, the issue goes far beyond the simple argument of: States can ban polygamy to discourage polyamory, therefore the State can ban same-sex marriage to discourage homosexuality. You are going to have to be more specific in making a legal argument -- you do get more specific further on in your post and I will address those comments.

QUOTE
Furthermore, as I pointed out in the other thread, polygamy (polyamorous marriage) is a practice that was at one point considered a valid form of marriage under a portion of US legal tradition-- as a result, there had to be a compelling case against polyamory as a basis for marriage in order to strike the practice down in Utah. In contrast, same-sex marriage is fundamentally different in that the US legal tradition prior to 2001 has never considered same-sex marriage valid, so before overturning a body of law that has been consistently construed in opposition of same-sex marriage, the state must prove a compelling interest in favor of awarding marriage privileges on the basis of homosexuality-- otherwise, in order for the rule of law to prevail, the consistent status quo must be upheld.


Without an explicit exclusion prior to 1973, the burden falls to the State to provide a compelling interest for making such an exclusion. Homosexuality was not considered valid in this country because, like polygamy, there was an existing network of laws that made up the marriage contract and many of these laws, being related to a compelling interest in procreation, prevented same-sex marriage from being legal. That network of laws, however, no longer exists. This opened the door to same-sex marriage. When the States realized this, they made explicit exclusions. There was not a law that explicitly excluded same-sex couples from marriage until 1973.

QUOTE
QUOTE
From Utah v. Green, (2004):
     The State of Utah's interest in regulating marriage has resulted in a network of laws, many of which are premised upon the concept of monogamy.  Potter, 760 F.2d at 1070 n.8 (citing several such laws).
Under US legal tradition, monogamy with respect to marriage has been consistently applied to imply heterosexual monogamy, therefore, there is no difference in US law between the word monogamy and the phrase "heterosexual monogamy," so the wording of this statement does not leave room for condoning homosexual monogamy merely by the use of the term "monogamy."


There are no longer any laws (apart from the recent exclusion) to support this premise. Please point to a single one to illustrate that the State has a network of laws aimed at keeping marriage between a man and a woman. The network of laws that relate to polygamy are in the marriage contract which is specifically geared towards monogamy -- the benefits and obligations pertaining to a couple. Please point to the "vast and convoluted network of other laws" that are premised upon the concept of heterosexual monogamy to the exclusion of homosexual monogamy.

QUOTE
QUOTE
    Beyond the State's interest in regulating marriage as an important social unit, or in maintaining its network of laws,
...again going "beyond," meaning that the "State's interest in regulating marriage as an important social unit, or in maintaining its network of laws" is completely valid, and then going farther...


Okay, but there is no "vast and convoluted network of other laws" related to keeping marriage limited to heterosexuals.

QUOTE
QUOTE
Utah's bigamy statute serves additional legitimate government ends.
Here, the word "additional legitimate government ends" clearly refers to the "State's interest in regulating marriage as an important social unit, or in maintaining its network of laws" as a "legitimate end."


Yes, but just because you have a legitimate end does not necessarily mean that it is enough to warrant the State's exclusion of a class of people from marriage. Many times the State has claimed its interest in regulating marriage as an important social unit, but never has that stood up on its own. No one denies that the State has a legitimate interest in regulating marriage as a social unit. But that interest alone is not compelling and while it may have sufficed in a case in which not even a rational basis standard was necessary, it does not suffice in a strict scrutiny analysis involving a fundamental right... the right to marry.

QUOTE
the close relationship between homosexuality and AIDs, the high rates of homosexuality among pedophiles ("statutory rape" from the above clause), sexual assault (particularly in prisons), etc. Each of these is accompanied by as much, if not more, statistical evidence as the laundry list against the "polyamory community."


The section you quote as a basis for this argument refers to "crimes not unusually attendant to the practice of polygamy." Contracting AIDS is not a crime. Besides, one could also argue that there is a close relationship between drug users and AIDS, but does the State prevent habitual drug users from marrying?

The arguments regarding homosexuals and pedophilia are misleading. They don't take into account the fact that the majority of men who sexually abuse boys are not attracted to adult males, but participate in adult heterosexual relationships. And pedophilia is a crime, unless possible pedophilia is a crime that could be associated with the practice of same-sex marriage -- meaning that homosexuals, in being allowed to marry, will marry children, your argument falls apart. There have been cases regarding polygamy where the person fighting the polygamy laws was attempting or had attempted to marry a child.

The same can be said of your prison, sexual assault argument. These are mainly heterosexual men held in an environment where the only sexual outlet is with other men. Heterosexual men leaving prison who have engaged in homosexual behavior while inside do not necessarily engage in that same behavior once they have left prison. Besides, many types of assault occur in prison. It is a rather unique situation. There is no evidence linking violent homosexual behavior in a closed prison environment and the behavior of same-sex couples who are not incarcerated.

QUOTE
QUOTE
Moreover, the closed nature of polygamous communities makes obtaining evidence of and prosecuting these crimes challenging. See id. at 243 ("Given the highly private nature of sexual abuse and the self-imposed isolation of polygamous communities, prosecution may well prove impossible. This wall of silence may present a compelling justification for criminalizing the act of polygamy, prosecuting offenders, and effectively breaking down the wall that provides a favorable environment in which crimes of physical and sexual abuse can thrive.").
It could be argued, admittedly weakly, that the fear of litigation with respect to denying benefits to people in the proverbial "homosexual community" generates a similar chilling effect on the ability of others to defend themselves against what the first clause called "marriage fraud" or benefits on par with marriage even without being married, as well as our laundry list of "bigotry" from the previous clause. Furthermore, with resepect to this clause the "in-the-closet" phenomenon could be considered to apply equally to homosexuality and polygamy.


The quote from the case refers to the reclusive nature of polygamous communities. Your comparison to those homosexuals who are "in the closet" makes absolutely no sense. A homosexual that is "in the closet" is not going to be getting married.

QUOTE
And thus, if this ruling is valid, then a state prohibition of same sex marriage also "does not violate the Free Exercise Clause of the First Amendment of the United States Constitution."

And I am not arguing for same-sex marriage from the standpoint of a violation of the Free Exercise Clause, so this is irrelevant.

This point, however does illustrate how same-sex marriage does not lead to polygamy. Because polygamists are not denied the right to marriage, that fundamental right is not implicated in the laws. And as, "a neutral law of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice," (Green), the state need only provide a legitimate interest. The judge in Green analyzes the issue using rational basis as an "even if" sort of thing.

QUOTE
The law you cited in itself very clearly stated its intent was to "discourage polyamorous behavior" and thus,  "such an interest" is "mentioned in contemporary judicial analysis of the constitutionality of polygamy laws" (Entspeak's wording), as well as "to serve other compelling interests."

No. The case I cited clearly indicates that the State has a compelling interest in maintaining the existing laws of the marriage contract, in preventing criminal behavior that has been considered "not unusually attendant to the practice of polygamy" -- the act of marrying more than one spouse. You can be as polyamorous as you want, but in legally recognizing polygamy the State feels it would be sanctioning other criminal behavior and it has an interest in not doing that.

QUOTE
... because the US legal tradition clearly opposes the idea that homosexual relationships are a legal basis for marriage, the burden of proof shifts, and without providing an unassailable case that homosexual relationships should be encouraged on par with heterosexual relationships, then there is no basis in law to overturn a consistent body of legal tradition.
Not true, being that marriage is a fundamental right, the burden falls to the State to provide a compelling interest related to such an exclusion and show that the exclusion is necessary in order to serve that interest.
Jack22
QUOTE(entspeak @ Apr 30 2005, 12:25 AM)
Without an explicit exclusion prior to 1973, the burden falls to the State to provide a compelling interest for making such an exclusion.  Homosexuality was not considered valid in this country because, like polygamy, there was an existing network of laws that made up the marriage contract and many of these laws, being related to a compelling interest in procreation, prevented same-sex marriage from being legal.  That network of laws, however, no longer exists.  This opened the door to same-sex marriage.  When the States realized this, they made explicit exclusions.  There was not a law that explicitly excluded same-sex couples from marriage until 1973.

....

QUOTE(Jack22)
Under US legal tradition, monogamy with respect to marriage has been consistently applied to imply heterosexual monogamy, therefore, there is no difference in US law between the word monogamy and the phrase "heterosexual monogamy," so the wording of this statement does not leave room for condoning homosexual monogamy merely by the use of the term "monogamy."


There are no longer any laws (apart from the recent exclusion) to support this premise. Please point to a single one to illustrate that the State has a network of laws aimed at keeping marriage between a man and a woman. The network of laws that relate to polygamy are in the marriage contract which is specifically geared towards monogamy -- the benefits and obligations pertaining to a couple. Please point to the "vast and convoluted network of other laws" that are premised upon the concept of heterosexual monogamy to the exclusion of homosexual monogamy.
Here again, I have carefully talked about the legal tradition, which means that the wording of laws is less important than the application of those laws, due to the changing nature of human languages and vocabulary. If you cannot identify for me a place in the US from 1776 to 2001 where the law was construed in such a way that same-sex couples were routinely allowed to get legally married, then you cannot assail my assertion that the all US legal tradition from 1776 to 2001 consistently interpreted marriage as implicitly, if not explicitly, excluding same-sex couples.

I have conceded in the other thread that if world history is the basis for defining the word "marriage," then we can certainly find cultures somewhere that historically permitted same-sex marriage-- but I cannot concede that same-sex marriage was actually interpreted to be legal in America from 1776-2001, and I have seen no evidence presented of that time that the legal tradition of 1776-1973 actually intended to specifically legalize same-sex marriage.

Inherent in determining the meaning of the law (rather than just its wording), is seeing how the contemporaries who enacted or decided the law wrote about it, applied it, interpreted it, and thus forged a legal tradition that is much stronger than a mere parsing of words on paper using modern nuances of vocabulary that may never have been the intent of the law. Same-sex marriage was never construed to be legal in the US legal tradition from 1776-2001, and on that point the laws are extremely consistent.

Some may argue that using modern terminology results in same-sex marriage not violating the letter of the law, while I have been arguing that it explicitly violates the intent of the law as evidenced by our legal tradition. Here, the burden of proof is on you to cite some shred of evidence from US legal tradition that would indicate a regular interpretation that same-sex marriage was construed to be legal. The burden of proof is not on opponents of SSM to prove the negative.

The evidence supporting my assertion is that there is no evidence of a legal SSM from US history (recent history obviously excluded), nor any evidence that laws passed from 1776-2001 intended to allow SSM. I will not even consider conceding this point until ample evidence is provided to the contrary. I concede under the terms of this thread only that some culture at some point in history defined the concept of "marriage" to encompass SSM, but not that US legal tradition was ever construed to support SSM until recent years.

QUOTE(Entspeak)
QUOTE(Jack22)
... because the US legal tradition clearly opposes the idea that homosexual relationships are a legal basis for marriage, the burden of proof shifts, and without providing an unassailable case that homosexual relationships should be encouraged on par with heterosexual relationships, then there is no basis in law to overturn a consistent body of legal tradition.
Not true, being that marriage is a fundamental right, the burden falls to the State to provide a compelling interest related to such an exclusion and show that the exclusion is necessary in order to serve that interest.
*


Sorry, I must have missed the evidence that marriage is a fundamental right, but no matter. Currently, consenting adults usually have the right to marry so long as they pass a blood test, don't marry more than one person at a time, don't marry a close relative and so long as that person is of the opposite sex. I'm sure the argument is old and unsavory to many, but the current "right" to marry is apply uniformly-- Heterosexual couples can marry even if they have no intention of ever engaging in sexual activity with one another. Polyamorists can still get married, but only to one person at a time. Homosexual people similarly have the same opportunity to select from the same list of people allowed to everyone else when deciding who to marry-- one adult at a time of the opposite sex, no close relatives, pass the blood test. One's private sexual proclivities remain private so long as they are among consenting adults, but the public form of the marriage is controlled.

So, the same opportunities are available to everyone. The state clearly does not allow, and has never allowed, two people to marry simply on the basis that they are consenting adults-- your affirmation that laws against polygamy and incest should remain in place is ample evidence, but those exceptions were argued differently in law because they had, on occasion, been explicitly included under part of America's legal tradition, while SSM has not.
entspeak
QUOTE(Jack22 @ Apr 30 2005, 02:48 AM)
Inherent in determining the meaning of the law (rather than just its wording), is seeing how the contemporaries who enacted or decided the law wrote about it, applied it, interpreted it, and thus forged a legal tradition that is much stronger than a mere parsing of words on paper using modern nuances of vocabulary that may never have been the intent of the law. Same-sex marriage was never construed to be legal in the US legal tradition from 1776-2001, and on that point the laws are extremely consistent.


I see. Well, you're going to have to be clearer here because I don't understand exactly what law you are referring to. Which law are we analyzing here. Please list one.

But, the argument "it's never been allowed before, therefore we shouldn't allow it now." has failed in most legal battles and in all of those involving marriage. Why is this different? Legal traditions change unless it is necessary to maintain them. Legal recognition of a tradition survives challenge if there remains a valid reason to continue it. This is what the courts have to say about your tradition argument:

QUOTE
Re: Anderson, (1968):

"No length of uncritical history or mindless tradition may sanction a procedure when the 'unconstitutionality of the course pursued... has been made clear.'


QUOTE
Lawrence v. Texas (2003):

The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.  Neither history or tradition could save a law prohibiting miscegenation from constitutional attack.


QUOTE
Perez v. Sharp (1948):
The fact alone that discrimination has been sanctioned by the state for many years does not supply such [constitutional] justification.


Legal tradition, in and of itself, is not enough to survive a strict scrutiny analysis. The argument, "it has never been allowed before, therefore it shouldn't be allowed now" is not a valid legal argument. There needs to be an existing, compelling State interest related to maintaining that tradition.

QUOTE
Sorry, I must have missed the evidence that marriage is a fundamental right, but no matter. Currently, consenting adults usually have the right to marry so long as they pass a blood test, don't marry more than one person at a time, don't marry a close relative and so long as that person is of the opposite sex.


Well, not necessarily. The majority of states do not require a blood test, so you are wrong there. Also, in 26 States one is allowed to marry a first cousin, so your "close relatives" argument is not quite specific enough. Perhaps you should actually look into this before making generalized statements regarding "tradition" as a legal argument, whether the State actually considers marriage a fundamental right, and also the actual legal requirements for marriage. That would actually help this debate. Right now, you are shooting from the hip with a musket. Just because you feel that the burden of proof is on me does not mean that you can make generalized statements and claim ignorance to proven facts and expect me to consider it a legal argument. In 1948, the UN made a formal declaration of human rights. The United States signed this declaration. Marriage is on that list. Loving refers to marriage as a fundamental right. Perez refers to marriage as a fundamental right. Marriage is considered a fundamental right in this country. Does this mean that the State can't exclude certain classes of people from that right? No. It most certainly can and does, but it must prove (the burden of proof is on the State, not on those requesting access to the right) that there is a compelling State interest related to the exclusion and that the exclusion is necessary in order to further that interest.

QUOTE
I'm sure the argument is old and unsavory to many, but the current "right" to marry is apply uniformly

This argument has been used before and legally does not hold water.

QUOTE
Loving v. Virginia:
We reject the notion that mere 'equal application' of a statute... is enough


QUOTE
McLaughlin v. Florida (1964):
Classification "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis."...

...[A]rbitrary selection can never be justified by calling it classification.

...Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose


So the exclusion of a classification from marriage can't be arbitrary and must be related to a compelling State interest. The fact that homosexuals can still marry a person of the opposite sex is not enough to allow the law to be considered constitutional. The fact that the law creates a classification that is excluded from marriage means that in order to pass constitutional muster, the exclusion can't be arbitrary and must be based on a compelling state interest. And because marriage is a fundamental right, the exclusion must be necessary in order to further that interest.

The State can proscribe polygamy... Green, as you acknowledge, cites more than a couple compelling State interests in banning polygamy. It can also proscribe incestuous marriage -- incestuous behavior between parents and their offspring or between siblings is a criminal offense. But what is the valid State interest in proscribing same-sex marriage that constitutionally justifies a law that explicitly excludes them?
Jack22
QUOTE(entspeak @ Apr 30 2005, 07:56 AM)
QUOTE(Jack22 @ Apr 30 2005, 02:48 AM)
Inherent in determining the meaning of the law (rather than just its wording), is seeing how the contemporaries who enacted or decided the law wrote about it, applied it, interpreted it, and thus forged a legal tradition that is much stronger than a mere parsing of words on paper using modern nuances of vocabulary that may never have been the intent of the law. Same-sex marriage was never construed to be legal in the US legal tradition from 1776-2001, and on that point the laws are extremely consistent.


I see. Well, you're going to have to be clearer here because I don't understand exactly what law you are referring to. Which law are we analyzing here. Please list one.

Many laws referred to marriage but were never construed to include SSM. Your request that I list one of the myriad smacks of being a ruse. Do you agree that there were laws concerning marriage prior to 1973 and that they were consistently construed to exclude SSM? Then citing one is not necessary.

QUOTE(entspeak)
Legal traditions change unless it is necessary to maintain them.
Actually, legal traditions remain the same until it becomes necessary to change direction-- without proving a need for change, the law remains as it has been interpreted, or else the court is creating new law (legislating) from the bench.

QUOTE
Re: Anderson, (1968):

"No length of uncritical history or mindless tradition may sanction a procedure when the 'unconstitutionality of the course pursued... has been made clear.'


I agree 100%. So make the unconstitutionality clear for me. Point to the passage in the constitution that prevents states from defining the boundaries of marriage where behavior, not race, is concerned.

QUOTE
Lawrence v. Texas (2003):

The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.  Neither history or tradition could save a law prohibiting miscegenation from constitutional attack.


I agree that the law should not regulate private sexual activity among consenting adults on the basis of immorality rather than illegality, but SSM has been construed to be illegal regardless of whether homosexuality is considered immoral, just as polygamy has been deemed illegal regardless of whether poyamory is considered immoral. Both polyamory and homosexuality are legal, and as the law has long been construed in most states, both polygamy and SSM are illegal.

QUOTE
Perez v. Sharp (1948):
The fact alone that discrimination has been sanctioned by the state for many years does not supply such [constitutional] justification.
So, where is the evidence that SSM being illegal fits under the same kind of discrimination referenced in Perez? Is the state discriminating by not allowing law-abiding polyamorists to formalize their relationships into a polygamous marriage contract? For the sake of this thread, we have agreed to answer that question as "No." How is it legally discriminatory, then, to similarly disallow law-abiding homosexuals from formalizing their relationships into SSM? The boundaries placed on this thread pose logical problems to your arguments that might not otherwise exist.

QUOTE(entspeak)
Legal tradition, in and of itself, is not enough to survive a strict scrutiny analysis.  The argument, "it has never been allowed before, therefore it shouldn't be allowed now" is not a valid legal argument.  There needs to be an existing, compelling State interest related to maintaining that tradition.
Actually, if we are to have a rule of law instead of a rule of judges, we must provide a compelling State interest to change the historically consistent interpretation of law.

Our disagreement over legal philosophy (originalist vs. activist) is well-documented-- both points of view have prevailed from time to time, even though they may seem mutually exclusive. If you need examples, I'll look them up for you.

QUOTE(Jack22)
Sorry, I must have missed the evidence that marriage is a fundamental right, but no matter.
Thanks for entering evidence to that point.

QUOTE(Jack22 (Emphasis added))
Currently, consenting adults usually have the right to marry so long as...


I believe my adequately-qualified claim of "usually" allowed a relatively flexible summarization considering it was only ancilliary to the point I was making. I therefore consider the following reaction to be unfair, but perhaps I should have been clearer that my goal for the sentence was not to provide a perfectly exact list of exceptions.

QUOTE(entspeak)
... Perhaps you should actually look into this before making generalized statements regarding "tradition" as a legal argument, whether the State actually considers marriage a fundamental right, and also the actual legal requirements for marriage.  That would actually help this debate.  Right now, you are shooting from the hip with a musket.  Just because you feel that the burden of proof is on me does not mean that you can make generalized statements and claim ignorance to proven facts and expect me to consider it a legal argument.


QUOTE
Loving v. Virginia:
We reject the notion that mere 'equal application' of a statute... is enough
So do I. This is not the only argument I have listed, just one of many.

QUOTE
McLaughlin v. Florida (1964):
Classification "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis."...

...[A]rbitrary selection can never be justified by calling it classification.

...Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose


I just want to highlight the detail that this quote does not seem to invoke "compelling state interest," but only "some difference" which is not "arbitrary" and "reasonable in light of its purpose". Bans against interracial marriage did not pass muster in that respect, but it is not a foregone conclusion that bans against SSM are the same. Many arguments against SSM are believed by many (about 2/3 of the population if recent balloting is any indicator) to reasonably and non-arbitrarily show some difference-- yet others often dismiss such reasons because they disagree, not because they can prove the arguments are inherently unresonable, arbitrary or provide no evidence of a difference.

I realize the previous paragraph makes general claims for which I need to provide specifics, but time is short so I will save that for a future post-- as a preview and opportunity for others to chime in, I'll be looking up evidence with regard to differences in childrearing among various family structures (which don't apply to all marriages but certainly to a large category of them), health differences, psychological differences, fidelity differences, etc. If any one of these can be construed as "reasonable" and "non-arbitrary," then the "compelling State interest" defense with regard to discrimination will have to come off the table, whether or not the need to supply one actually applies to SSM.

edited to correct some grammar
entspeak
QUOTE(Jack22 @ Apr 30 2005, 10:54 AM)
Many laws referred to marriage but were never construed to include SSM. Your request that I list one of the myriad smacks of being a ruse. Do you agree that there were laws concerning marriage prior to 1973 and that they were consistently construed to exclude SSM? Then citing one is not necessary.


A simple I don't know of one will suffice. wink.gif

QUOTE
Actually, legal traditions remain the same until it becomes necessary to change direction-- without proving a need for change, the law remains as it has been interpreted, or else the court is creating new law (legislating) from the bench.

Actually, no. In cases involving a strict scrutiny analysis, legal traditions can be questioned regarding validity and if there is no rational basis to provide a justification for their continued existence they can be voided. I have already shown you precedent for this. This is not the creation of a new law, but the voiding of an unconstitutional law. This isn't philosophy, this is the way the law works. It is funny that people consider the challenges to bans on same-sex marriage to be the creation of a new law. It isn't. The bans are voided, that is all. The law goes back to the way it was just prior to when the ban was in place. Unfortunately, that means that the State can't prevent same-sex marriage from occurring, because there is nothing left in the laws associated with marriage to proscribe it apart from an explicit ban.

QUOTE
QUOTE
Re: Anderson, (1968):

"No length of uncritical history or mindless tradition may sanction a procedure when the 'unconstitutionality of the course pursued... has been made clear.'


I agree 100%. So make the unconstitutionality clear for me. Point to the passage in the constitution that prevents states from defining the boundaries of marriage where behavior, not race, is concerned.


I never said that the State couldn't restrict access to marriage based on behavior. The State can restrict access to marriage for any reason it chooses, but only on condition that the reason is related to a compelling State interest. To do otherwise violates the Equal Protection Clause and Due Process Clauses of the 14th Amendment:

QUOTE
...nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

To deny same-sex couples access to marriage is to deprive them of a liberty and equal protection under the law.

You might then go on to state that the law applies equally and that a homosexual is not denied access to marriage, but then I will refer you back to McLaughlin in which the State made the exact same argument and in which it is illustrated that the choice of whom one chooses to cohabit with is also protected under the Equal Protection Clause -- and this case did not involve a fundamental right such as marriage. This means a classification can be created based on choice -- in that case a choice regarding the race of who one cohabits with. In this case, the choice is based on the gender of the individual one chooses to marry. It is unconstutional to discriminate based on gender, in this case the choice of the gender one chooses to marry. Now, if the State has a compelling State interest related to making this exclusion and, because marriage is a fundamental right, that exclusion is necessary to further some compelling State interest, the State can restrict that choice to an individual of opposite gender -- if not, it can't.

QUOTE
Perez v. Sharp (1948)
... the essence of the right to marry is freedom to join in marriage with the person of one's choice...

... It is, of course, conceded that the state in the exercise of the police power may legislate for the protection of the health and welfare of the people and in so doing may infringe to some extent on the rights of individuals. But it is not conceded that a state may legislate to the detriment of a class--a minority who are unable to protect themselves, when such legislation has no valid purpose behind it.


QUOTE
I agree that the law should not regulate private sexual activity among consenting adults on the basis of immorality rather than illegality, but SSM has been construed to be illegal regardless of whether homosexuality is considered immoral, just as polygamy has been deemed illegal regardless of whether poyamory is considered immoral. Both polyamory and homosexuality are legal, and as the law has long been construed in most states, both polygamy and SSM are illegal.

Is the state discriminating by not allowing law-abiding polyamorists to formalize their relationships into a polygamous marriage contract? For the sake of this thread, we have agreed to answer that question as "No." How is it legally discriminatory, then, to similarly disallow law-abiding homosexuals from formalizing their relationships into SSM? The boundaries placed on this thread pose logical problems to your arguments that might not otherwise exist.


You, again, are ignoring the fact that bigamy is not just banned, it is a felony. Incestuous marriage is not just banned, incest is a felony. To equate these practices with same-sex marriage is ridiculous. They aren't the same. You can't simply state that same-sex marriage is the same as polygamy and incestuous marriage, because the other two involve the commission of a felony. Yes, polyamory is legal, but polygamy involves the commission of a crime and has other crimes "not unusually attendant to" the practice. Same-sex marriage does not involve the commission of a crime nor are there other crimes that could be considered "not unusually attendant" to the practice.

QUOTE
Actually, if we are to have a rule of law instead of a rule of judges, we must provide a compelling State interest to change the historically consistent interpretation of law.
First, I am not referring to a historically consistent interpretation of the existing laws that ban same-sex marriage, I am referring to the intent in creating the laws that explicitly ban same-sex marriage in the first place. Before the current explicit exclusions came about, there was a network of laws that implicitly excluded same-sex marriage by their nature. Historical interpretation of the law in considering same-sex marriage was consistent in its exclusion of same-sex marriage for this reason. Sodomy in marriage was a felony, contraception in marriage was banned, sex outside the marriage was banned, unmarried sex was banned. All of these pointed to boundaries of marriage relating to the allowance of procreation. This, historically, is why these laws were created... to promote procreation. It was this network of laws that historically meant that same-sex marriage was not a valid civil marriage in the eyes of the State. However, this network of laws is gone, so there were no laws on which to base such a historically consistent interpretation of the law. In absence of this, the States then decided to explicitly ban same-sex marriage, okay... but here comes the problem. The tradition no longer had a rational basis for making the exclusion. There were no longer any obligations of marriage that necessitated the exclusion. The tradition became "mindless", no longer having a rational basis for its existence, and the explicit exclusion was arbitrary because because of the absence of laws that would meaningfully render marriage inaccessible to same-sex couples.

So, being that the "network of other laws" on which this "historically consistent interpretation" are based no longer exist, the tradition is mindless and the exclusion is arbitrary -- it has no meaningful purpose.

You might state that the same applies to polygamy, but it doesn't. There is an existing "vast and convoluted network of other laws" that illustrate that the State is interested in monogamous marriage as the only valid civil marriage, engaging in the practice involves the commission of a felony, and there are other crimes "not unusually attendant to" the practice. In this case, the continuing a "historical interpretaion" has a meaningful purpose and is consistent with existing law -- it is not "mindless" or arbitrary.

QUOTE
QUOTE(Jack22)
Sorry, I must have missed the evidence that marriage is a fundamental right, but no matter.
Thanks for entering evidence to that point.


Your welcome. Being that marriage is a fundamental right, cases involving an impairment or restriction on marriage are subject to strict scrutiny analysis in the courts. This places the burden on the State, which is why your argument regarding a change in "tradition" falls apart. In cases regarding marriage, "tradition" has been shown not to be sufficient enough, in and of itself, to warrant an impairment or restriction on marriage or in marriage. This is why, despite tradition and a perceived "equal application" of the laws, the State couldn't proscribe interracial marriage, this is why, despite tradition, women are no longer treated as property in marriage.

Requiring the State to provide support for maintaining a "tradition" as regards a fundamental right is not "activist", it is the law. Strict scrutiny is applied in this case because a fundamental right is implicated.


QUOTE
I believe my adequately-qualified claim of "usually" allowed a relatively flexible summarization considering it was only ancilliary to the point I was making. I therefore consider the following reaction to be unfair, but perhaps I should have been clearer that my goal for the sentence was not to provide a perfectly exact list of exceptions.


No... my bad, I should've taken it into account. I apologize.

QUOTE
QUOTE
Loving v. Virginia:
We reject the notion that mere 'equal application' of a statute... is enough
So do I. This is not the only argument I have listed, just one of many.


Well, good at least we can toss that one argument out. One down.

QUOTE
McLaughlin v. Florida (1964):
Classification "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis."...

...[A]rbitrary selection can never be justified by calling it classification.

...Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation. The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose


QUOTE
I just want to highlight the detail that this quote does not seem to invoke "compelling state interest," but only "some difference" which is not "arbitrary" and "reasonable in light of its purpose".


The State must find "some difference" (meaning a specific difference) which is not arbitrary and has a just relation to the act... a rational basis.

QUOTE
Bans against interracial marriage did not pass muster in that respect, but it is not a foregone conclusion that bans against SSM are the same. Many arguments against SSM are believed by many (about 2/3 of the population if recent balloting is any indicator) to reasonably and non-arbitrarily show some difference-- yet others often dismiss such reasons because they disagree, not because they can prove the arguments are inherently unresonable, arbitrary or provide no evidence of a difference.


The exclusion can't be arbitrary or unreasonable in light of a State interest. I'm sure you can provide some reason that isn't necessarily arbitrary, but that doesn't mean that reason the supports a valid State interest or that the exclusion based on such a reason isn't arbitrary.

You could, for instance, suggest that same-sex couples wouldn't present an ideal environment in which to raise kids. Some might consider that reasonable and not arbitrary. But, you would also have to prove that the State has a compelling interest in preventing same-sex couples from raising children. In Massachusett's for example:

QUOTE
From Goodridge (2003):
Justice Cordy's dissenting opinion, post at--and nn.  24-28 (Cordy, J., dissenting), makes much of thecurrent "battle of the experts" concerning the possible long-term effects on children of being raised in households headed by same-sex parents.  We presume that the Legislature is aware of these studies, see Mutual Loan Co. v. Martell, 200 Mass. 482, 487 (1909), aff'd, 222 U.S. 225 (1911), and has drawn the conclusion that a child's best interest is not harmed by being raised and nurtured by same-sex parents.  See G.L. c. 210, § 7. See also Adoption of Tammy, 416 Mass. 205 (1993);  110 Code Mass. Regs. § 1.09(3) (2000) ("The Department [of Social Services] shall not deny to any person the opportunity to become an adoptive or foster parent, on the basis of the ... sexual orientation ... of the person, or of the child,involved").  Either the Legislature's openness to same-sex parenting is rational in light of its paramount interests in promoting children's well- being, or irrational in light of its so-called conclusion that a household headed by opposite-sex married parents is the "optimal" setting for raising children.


Here you have existing laws and precedent that contradict the claim that the State believes that same-sex parenting is detrimental to a child's well-being.

In state's that do have laws that prevent homosexuals from adopting, you would also have to prove that raising children was essential to the legal recognition of marriage. I think you will find it difficult to prove that considering that there are no laws requiring one to even allow for the possibility of having a child in a marital relationship -- not anymore, that is.
Jack22
QUOTE(entspeak @ Apr 30 2005, 01:24 PM)
QUOTE(Jack22 @ Apr 30 2005, 10:54 AM)
Many laws referred to marriage but were never construed to include SSM. Your request that I list one of the myriad smacks of being a ruse. Do you agree that there were laws concerning marriage prior to 1973 and that they were consistently construed to exclude SSM? Then citing one is not necessary.
A simple I don't know of one will suffice.
Perhaps, but it would have been untrue. Here are links to hundreds of state marriage laws at FindLaw.com, none of which have been construed in a way that resulted in legal SSMs before recent years. Now that I've humored your ruse, we're all still waiting on you to provide your evidence that SSM was routinely construed to be legal under US legal tradition prior to recent years. A simple "I don't know of one" will suffice. wink.gif

QUOTE(Jack22)
QUOTE(entspeak)
Legal traditions change unless it is necessary to maintain them.
Actually, legal traditions remain the same until it becomes necessary to change direction-- without proving a need for change, the law remains as it has been interpreted, or else the court is creating new law (legislating) from the bench.
...
QUOTE(entspeak)
Legal tradition, in and of itself, is not enough to survive a strict scrutiny analysis.  The argument, "it has never been allowed before, therefore it shouldn't be allowed now" is not a valid legal argument.  There needs to be an existing, compelling State interest related to maintaining that tradition.
Actually, if we are to have a rule of law instead of a rule of judges, we must provide a compelling State interest to change the historically consistent interpretation of law. Our disagreement over legal philosophy (originalist vs. activist) is well-documented-- both points of view have prevailed from time to time, even though they may seem mutually exclusive.
QUOTE(entspeak)
...This is not the creation of a new law, but the voiding of an unconstitutional law. This isn't philosophy, this is the way the law works.
What qualifies as constitutional or unconstitutional very frequently boils down to a debate within the Supreme Court among the relative applicability of originalism (rule of law, strict constructionism, textualism, etc. -- judges must uphold legal tradition without proof of compelling state interest to change) vs. activism (living constitution, rule of judges, etc.-- judges must change law without proof of compelling state interest to uphold legal tradition). To assert that activism is the only way the law works and deny the validity of originalism out of hand as if it doesn't exist just won't fly. When law truly defies the Constitution, it needs to be overturned-- but activism is only one of several accepted methods of determining Constitutionality, and originalism is another.

QUOTE(entspeak)
It is funny that people consider the challenges to bans on same-sex marriage to be the creation of a new law.  It isn't.  The bans are voided, that is all. The law goes back to the way it was just prior to when the ban was in place.
When a ban is voided, change happens, yes? Here, a legal tradition in which SSM was never permitted is changed to allow it-- so the effect is to force a new condition (legalized SSM) that was never before considered to be the intent of the law. It is laughable that anyone would try to promote the idea that we're just trying to get back to the good ol' days when SSM was commonplace-- those "good ol' days" don't exist and everyone knows it.

QUOTE(entspeak)
You, again, are ignoring the fact that bigamy is not just banned, it is a felony.  Incestuous marriage is not just banned, incest is a felony.  To equate these practices with same-sex marriage is ridiculous.  They aren't the same.  You can't simply state that same-sex marriage is the same as polygamy and incestuous marriage, because the other two involve the commission of a felony.  Yes, polyamory is legal, but polygamy involves the commission of a crime and has other crimes "not unusually attendant to" the practice.  Same-sex marriage does not involve the commission of a crime nor are there other crimes that could be considered "not unusually attendant" to the practice.
Quite the contrary-- it is a felony for anyone who is not legally married to fraudulently claim marriage, particularly with the intent is to defraud the government of marriage benefits, which is why polyamory is legal and bigamy/polygamy (polyamorous marriage) is a felony. See this page for more details with respect to immigration law. Currently, most homosexual couples live in states where SSM is illegal-- if they were to claim to be married anyway for the purpose of getting government marriage benefits, they would be committing a felony.

QUOTE(entspeak)
Before the current explicit exclusions came about, there was a network of laws that implicitly excluded same-sex marriage by their nature. Historical interpretation of the law in considering same-sex marriage was consistent in its exclusion of same-sex marriage for this reason.  Sodomy in marriage was a felony, contraception in marriage was banned, sex outside the marriage was banned, unmarried sex was banned.  All of these pointed to boundaries of marriage relating to the allowance of procreation.  This, historically, is why these laws were created... to promote procreation.  It was this network of laws that historically meant that same-sex marriage was not a valid civil marriage in the eyes of the State.  However, this network of laws is gone, so there were no laws on which to base such a historically consistent interpretation of the law.
Why would a compelling interest to provide a good environment for procreation and child-rearing, even absent much of the underlying law enforcing various aspects of it, would no longer be acceptable as "reasonable", "non-arbitrary" and identifying "some difference" between SSM and traditional marriage? I can understand the underlying law disappearing, but has the overarching principle also disappeared? So, a long list of things that were once illegal are now legal. Great. Good for libertarianism. But does the fact that they are now legal really change the nature of marriage as an institution that should be as friendly as possible to procreation and child-rearing? Your assertions that the mere absence of excessive restrictive laws mean procreation and child-rearing concerns are now "mindless and the exclusion is arbitrary -- it has no meaningful purpose." Can you back that claim up with any evidence as to why procreation and child-rearing concerns no longer present a compelling state interest in marriage?

(Concerning the qualifications for a compelling state interest being defined as "some difference" that is "reasonable" and not "arbitrary" ... )
QUOTE(entspeak)
QUOTE(Jack22)
Bans against interracial marriage did not pass muster in that respect, but it is not a foregone conclusion that bans against SSM are the same. Many arguments against SSM are believed by many (about 2/3 of the population if recent balloting is any indicator) to reasonably and non-arbitrarily show some difference-- yet others often dismiss such reasons because they disagree, not because they can prove the arguments are inherently unreasonable, arbitrary or provide no evidence of a difference.
That is a circular argument: a law is passed by the majority, the law is challenged because it is considered arbitrary and unreasonable in light of its purpose, the law may not be unreasonable or arbitrary because the majority believes it is not.
Yes, if your straw man had accurately reflected the intent of my words, then my reasoning would have been circular. Instead, you may have missed the end of the argument-- I was not trying to conclude that the majority is reasonable because the majority believe themselves reasonable, I was trying to conclude that if the case boils down to both sides hinging on subjective value judgments that could both be construed as "reasonable" ("... because they disagree, not because they can prove...") then such a vast majority deserves the benefit of any doubt.
entspeak
QUOTE(Jack22 @ Apr 30 2005, 07:08 PM)
Here are links to hundreds of state marriage laws at FindLaw.com[/url], none of which have been construed in a way that resulted in legal SSMs before recent years. Now that I've humored your ruse, we're all still waiting on you to provide your evidence that SSM was routinely construed to be legal under US legal tradition prior to recent years. A simple "I don't know of one" will suffice. wink.gif


Well, there they are... which ones exclude same-sex marriage? Where is the "network of other laws" regarding same-sex marriage and homosexuality that need to be maintained by excluding same-sex marriage?

Concerning your question, there were no laws before 1973 that explicitly excluded same-sex marriage. There were also, just prior to the passage of these explicit exclusions, no laws that implicitly excluded same-sex couples from marrying in many states (I concede that in states where sodomy laws existed same-sex marriage was not technically legal nor should it have been). This is why same-sex couples started applying for marriage licenses in the 70's. I never stated that there wasn't historically a rational basis for excluding same-sex marriage, but that rational basis for excluding them no longer exists. One can "construe" that judges in the 1970's imposed their own moral view rather than recognizing that there were no laws to prevent same-sex couples from getting married and that the rational basis used to exclude them before no longer applied. That is certainly within the realm of possibility. However, looking at the law... in the 1970's there were no laws that could be construed as excluding same-sex couples. There were however laws that could be construed as allowing same-sex marriage. These are the laws that were amended, starting in 1973, to restrict marriage to opposite sex couples. But just prior to these amendments to the state laws, same-sex marriage was technically legal. There were no longer any laws preventing it.

QUOTE
When a ban is voided, change happens, yes? Here, a legal tradition in which SSM was never permitted is changed to allow it-- so the effect is to force a new condition (legalized SSM) that was never before considered to be the intent of the law. It is laughable that anyone would try to promote the idea that we're just trying to get back to the good ol' days when SSM was commonplace-- those "good ol' days" don't exist and everyone knows it.


I never argued that nothing changes. Certainly something changes... same-sex couples start marrying. Legally, however, nothing changes. It is absurd to state that judges finding same-sex marriage bans unconstitutional are "legislating" from the bench. What laws are they creating? None. I also never stated that same-sex marriage was common place, I stated that it was legal. Again, the argument that same-sex marriages have never been recognized before is not a valid reason for not recognizing them now. You keep mentioning the "intent of the law"... which law? The only laws existing that are relevant are laws explicitly banning same-sex marriage. However, the intent of those laws is what is being called into question. You can't use the intent of a law to justify the intent of the same law. That is a circular argument. You also keep using "legal tradition" and law as if the two were the same thing... they aren't. There is no obligation to uphold a "legal tradition" unless that tradition is supported by existing laws. Without the support of existing laws, such a tradition is meaningless -- there has to be an existing reason to uphold it.

QUOTE
QUOTE
Same-sex marriage does not involve the commission of a crime nor are there other crimes that could be considered "not unusually attendant" to the practice.

Quite the contrary-- it is a felony for anyone who is not legally married to fraudulently claim marriage, particularly with the intent is to defraud the government of marriage benefits, which is why polyamory is legal and bigamy/polygamy (polyamorous marriage) is a felony. See this page for more details with respect to immigration law. Currently, most homosexual couples live in states where SSM is illegal-- if they were to claim to be married anyway for the purpose of getting government marriage benefits, they would be committing a felony.
Oookay. So how does prohibiting same-sex marriage relate to preventing marriage fraud by unmarried homosexuals?

QUOTE(entspeak)
Before the current explicit exclusions came about, there was a network of laws that implicitly excluded same-sex marriage by their nature. Historical interpretation of the law in considering same-sex marriage was consistent in its exclusion of same-sex marriage for this reason.  Sodomy in marriage was a felony, contraception in marriage was banned, sex outside the marriage was banned, unmarried sex was banned.  All of these pointed to boundaries of marriage relating to the allowance of procreation.  This, historically, is why these laws were created... to promote procreation.  It was this network of laws that historically meant that same-sex marriage was not a valid civil marriage in the eyes of the State.  However, this network of laws is gone, so there were no laws on which to base such a historically consistent interpretation of the law.


QUOTE
Why would a compelling interest to provide a good environment for procreation and child-rearing, even absent much of the underlying law enforcing various aspects of it, would no longer be acceptable as "reasonable", "non-arbitrary" and identifying "some difference" between SSM and traditional marriage?


The difference has to be related to the exclusion.

QUOTE
I can understand the underlying law disappearing, but has the overarching principle also disappeared? So, a long list of things that were once illegal are now legal. Great. Good for libertarianism. But does the fact that they are now legal really change the nature of marriage as an institution that should be as friendly as possible to procreation and child-rearing?


Allowing for same-sex couples has absolutely no effect on the possibility of heterosexual couples procreating in marriage. Unless, through some stroke of magic, allowing homosexuals to marry is going to somehow keep heterosexuals from procreating, the difference is irrelevant when related to the exclusion.

Unless the state is going to prevent heterosexual couples that it knows can't procreate from marrying, it can't exclude a particular group because there is no possibility of procreation. The possibility of procreation is not a requirement of marriage, the difference is irrelevant when related to the exclusion. The State could care less if heterosexual married couples are capable of procreating. The inability to procreate, in and of itself, is not even a grounds for annulment or fault-based divorce (as is the only option for, say, covenant marriages). Procreation is not an essential aspect of marriage, as such it can't be considered a compelling State interest for which an exclusion of same-sex couples is "necessary".

The same goes for child-rearing... it is not an essential aspect of marriage. People get married and never have children all the time. And, to state that an exclusion should be maintained because of "a harmful environment" for child-rearing in a state where the legislature does not view same-sex parenting as harmful to a child shows that an exclusion related to that reason is unreasonable and "irrational".

QUOTE
Can you back that claim up with any evidence as to why procreation and child-rearing concerns no longer present a compelling state interest in marriage?


They aren't compelling when related to an exclusion of same-sex couples from marriage. They are also not "necessary" for the purpose of serving those interests.

QUOTE
Instead, you may have missed the end of the argument-- I was not trying to conclude that the majority is reasonable because the majority believe themselves reasonable, I was trying to conclude that if the case boils down to both sides hinging on subjective value judgments that could both be construed as "reasonable" ("... because they disagree, not because they can prove...") then such a vast majority deserves the benefit of any doubt.
*



I see. This sounds like a personal philosophy. If so, alright... that's nice. So what? If it is more than just a personal philosophy, please provide some evidence that legally this is the way it works. Because according to the law, when it comes to a fundamental right like marriage, the State'w view, the view of the vast majority, must be strictly scrutinized. No benefit of the doubt, the State, as a representative of the will of the majority, must prove its case.
Jack22
QUOTE(entspeak @ Apr 30 2005, 08:34 PM)
Well, there they are... which ones exclude same-sex marriage?
All of which use the word "marriage" and which you cannot prove by example they intended that term to include SSM rather than being explicity heterosexual in nature.
QUOTE(entspeak)
Where is the "network of other laws" regarding same-sex marriage and homosexuality that need to be maintained by excluding same-sex marriage?
Unnecessary for absolute proof of my point. To prove my point conclusively, all that is needed is an absense of proof that SSM was routinely conveyed under these laws.

QUOTE(entspeak)
Concerning your question, there were no laws before 1973 that explicitly excluded same-sex marriage.
False. All of them used the word marriage in such a way that explicitly excluded marriage by virtue of never being interpreted so as to include SSM during that time.

QUOTE(entspeak)
There were also, just prior to the passage of these explicit exclusions, no laws that implicitly excluded same-sex couples from marrying in many states (I concede that in states where sodomy laws existed same-sex marriage was not technically legal nor should it have been).  This is why same-sex couples started applying for marriage licenses in the 70's.
No, same-sex couples started applying for marriage licenses in the 1970's because they wanted to change the meaning of the word "marriage" as established by US legal tradition to include SSM as the word may have been interpreted elsewhere without any relevance to the US.

QUOTE(entspeak)
I never stated that there wasn't historically a rational basis for excluding same-sex marriage, but that rational basis for excluding them no longer exists. (snip) However, looking at the law... in the 1970's there were no laws that could be construed as excluding same-sex couples.
And yet they all were assumed to exclude same-sex couples by virtue of their use of the word "marriage" in the same way it had always been used in the US.

QUOTE(entspeak)
There were however laws that could be construed as allowing same-sex marriage.
If these exist, let's see them. Construing them so as to defy their obvious intent doesn't count, by the way.

QUOTE(entspeak)
These are the laws that were amended, starting in 1973, to restrict marriage to opposite sex couples.
...in response to the first assertions that the word "marriage" might no longer be as sufficient as it had always been in the US as an explicit excluder of SSM.

QUOTE(entspeak)
But just prior to these amendments to the state laws, same-sex marriage was technically legal.  There were no longer any laws preventing it.
...only if one can make the illogical leap that the world history definition of "marriage" and the US legal tradition's definition of "marriage" were one and the same.

QUOTE(entspeak)
Legally, however, nothing changes.  It is absurd to state that judges finding same-sex marriage bans unconstitutional are "legislating" from the bench.  What laws are they creating?
The ones that allow SSM for the first time in history.

QUOTE(entspeak)
Again, the argument that same-sex marriages have never been recognized before is not a valid reason for not recognizing them now.  You keep mentioning the "intent of the law"... which law?
THE law. US law. All of it. I am not making the argument that SSM should not be recognized now because they were never recognized before, I am challenging your notion that the use of the word "marriage" in US law was ever intended to include SSM as it may have in world history, therefore your assertions to the contrary are invalid.

QUOTE(entspeak)
The only laws existing that are relevant are laws explicitly banning same-sex marriage.
Nope, the most relevant laws are those mentioning marriage under which no SSMs were performed and therefore proving that even before the law cleared up any possible misunderstandings, it did not mean marriage to include SSM.

QUOTE(entspeak)
However, the intent of those laws is what is being called into question.  You can't use the intent of a law to justify the intent of the same law.  That is a circular argument.
...and asserting I have done such a thing is a blatantly obvious straw man-- obviously I have done no such thing. I've been addressing the entire law and claiming intent to exclude SSM by your inability to provide evidence that SSM was performed under it. When you stoop to making silly claims about my line of reasoning, you're not helping your case.

QUOTE(entspeak)
You also keep using "legal tradition" and law as if the two were the same thing... they aren't.  There is no obligation to uphold a "legal tradition" unless that tradition is supported by existing laws.  Without the support of existing laws, such a tradition is meaningless -- there has to be an existing reason to uphold it.
And we're back to the originalist-activist debate. I say the rule of law means that legal tradition must be upheld unless a compelling case can be made against it-- others say that legal tradition must be overturned unless a compelling case can be made to continue it. Originalism v. Activism is not a point we're likely to resolve conclusively in this debate no matter how forcefully each of us asserts our positions.

QUOTE(entspeak)
QUOTE(Jack22)
it is a felony for anyone who is not legally married to fraudulently claim marriage, particularly with the intent is to defraud the government of marriage benefits, which is why polyamory is legal and bigamy/polygamy (polyamorous marriage) is a felony. See this page for more details with respect to immigration law. Currently, most homosexual couples live in states where SSM is illegal-- if they were to claim to be married anyway for the purpose of getting government marriage benefits, they would be committing a felony.
Oookay. So how does prohibiting same-sex marriage relate to preventing marriage fraud by unmarried homosexuals?
If same sex couples were to claim marriage benefits without SSM being legal, the result would be no different than if a polyamorous group were to claim marriage benefits without polygamy being legal-- a felony. Your assertion that the two are somehow distinct because a felony is involved doesn't wash-- so long as a polyamorous group doesn't claim to be married, what they are doing is perfectly legal and not considered a felony, just like same sex couples. It is not until claiming marriage that polyamory becomes polygamy and a felony, and if a same sex couple were to do the same thing in a state where SSM is not legal, it too would be a felony. Your point about polygamy being a felony and homosexuality not being a felony was a comparison of apples to oranges.

QUOTE(entspeak)
Allowing for same-sex couples has absolutely no effect on the possibility of heterosexual couples procreating in marriage.  Unless, through some stroke of magic, allowing homosexuals to marry is going to somehow keep heterosexuals from procreating, the difference is irrelevant when related to the exclusion. [...] The possibility of procreation is not a requirement of marriage, the difference is irrelevant when related to the exclusion.  [...] The same goes for child-rearing... it is not an essential aspect of marriage.
... while others would argue that keeping the general structure of our most fundamental social institution supportive of parenting from procreation onward favors continuing to keep marriage defined as between one man and one woman, even though cases may exist where married couples choose not to participate (or for medical reasons cannot participate) in parenting from procreation onward.

QUOTE(Jack22)
if the case boils down to both sides hinging on subjective value judgments that could both be construed as "reasonable" ("... because they disagree, not because they can prove...") then such a vast majority deserves the benefit of any doubt.
QUOTE(entspeak)
No benefit of the doubt, the State, as a representative of the will of the majority, must prove its case.
When attempting to change the fundamental organizational structure of society in an unprecedented way, those who wish to change it must also prove their case-- if it comes down to a simple difference of opinion and the will of the majority is not allowed to stand, then our society as a democratic republic ceases to exist and we have abandoned ourselves and our posterity to full-blown judicial dictatorship-- the rule of judges will have defeated the rule of law-- and in our complacency we deserve whatever oppression is meted out to us as a result. If, however, we the People, as a society dedicated to the rule of law, rise up to pass an amendment allowing a Congressional override of Judicial Review (siding with a court's minority opinion rather than its majority opinion) to protect ourselves from such tyranny, then we will have again proven ourselves worthy to extend the legacy handed down to us by our forefathers. mrsparkle.gif us.gif

Please pardon the excessive drama. sour.gif laugh.gif
logophage
This is a really good debate between both of you, Jack22 and entspeak. It's very informative and civil. Just a few comments...

QUOTE(Jack22)
QUOTE(entspeak)
Legally, however, nothing changes.  It is absurd to state that judges finding same-sex marriage bans unconstitutional are "legislating" from the bench.  What laws are they creating?
The ones that allow SSM for the first time in history.

This statement completely ignores entspeak's argument. Let me restate it for you. No new laws are being introduced; only a removal of the ban on same-sex marriage. In order to create a new law it must be legislated which is something the judicial branch does not do. If the majority wishes to ban same-sex marriage, then it must be legislated and this legislation must pass constitutional muster. If it doesn't pass muster, then an amendment to the Constitution is required. To call it a new law is supremely inaccurate.

QUOTE(Jack22)
QUOTE(entspeak)
Again, the argument that same-sex marriages have never been recognized before is not a valid reason for not recognizing them now.  You keep mentioning the "intent of the law"... which law?
THE law. US law. All of it. I am not making the argument that SSM should not be recognized now because they were never recognized before, I am challenging your notion that the use of the word "marriage" in US law was ever intended to include SSM as it may have in world history, therefore your assertions to the contrary are invalid.

From how I'm reading entspeak's arguments, he wouldn't disagree with this point until your last clause. Just because a thing wasn't intended doesn't mean that it is invalid. Keep in mind that the Constitution discusses having an army and a navy but no airforce. I'm sure that the airforce was never "intended" by the writers of the Constitution. Should it be proscribed just because of this?

QUOTE(Jack22)
QUOTE(entspeak)
However, the intent of those laws is what is being called into question.  You can't use the intent of a law to justify the intent of the same law.  That is a circular argument.
...and asserting I have done such a thing is a blatantly obvious straw man-- obviously I have done no such thing. I've been addressing the entire law and claiming intent to exclude SSM by your inability to provide evidence that SSM was performed under it. When you stoop to making silly claims about my line of reasoning, you're not helping your case.

I'm confused because my reading of your position, Jack22, is exactly what entspeak has stated here. Perhaps, you could make it more clear exactly what you've demonstrated apart from the tautological.

QUOTE(Jack22)
If same sex couples were to claim marriage benefits without SSM being legal, the result would be no different than if a polyamorous group were to claim marriage benefits without polygamy being legal-- a felony. Your assertion that the two are somehow distinct because a felony is involved doesn't wash-- so long as a polyamorous group doesn't claim to be married, what they are doing is perfectly legal and not considered a felony, just like same sex couples. It is not until claiming marriage that polyamory becomes polygamy and a felony, and if a same sex couple were to do the same thing in a state where SSM is not legal, it too would be a felony. Your point about polygamy being a felony and homosexuality not being a felony was a comparison of apples to oranges.

If a heterosexual couple claimed marriage benefits without being married, a felony would also be committed. Are you arguing that heterosexual marriage should be illegal too?
Jack22
QUOTE(logophage @ May 1 2005, 12:52 AM)
This is a really good debate between both of you, Jack22 and entspeak.    It's very informative and civil.
Thanks.

QUOTE(Jack22)
QUOTE(entspeak)
Legally, however, nothing changes.  It is absurd to state that judges finding same-sex marriage bans unconstitutional are "legislating" from the bench.  What laws are they creating?
The ones that allow SSM for the first time in history.
QUOTE(logophage @ May 1 2005, 12:52 AM)
This statement completely ignores entspeak's argument.  Let me restate it for you.  No new laws are being introduced; only a removal of the ban on same-sex marriage.  In order to create a new law it must be legislated which is something the judicial branch does not do.  If the majority wishes to ban same-sex marriage, then it must be legislated and this legislation must pass constitutional muster.  If it doesn't pass muster, then an amendment to the Constitution is required.    To call it a new law is supremely inaccurate.
I understand the assertion that only bans are being removed, but we have discussed this point through several posts, and my position on it is that if the court finds a fundamental right to SSM for people that they have never had before, it is new, regardless of the methodology used. My position is that the specific prohibitions in the law against same-sex marriage are redundant because marriage had never before been applied such that SSM was a part of it-- for judges to suddenly interpret marriage to force the inclusion of SSM is a new legal condition that never before existed, and thus new law being created.

QUOTE(Jack22)
QUOTE(entspeak)
Again, the argument that same-sex marriages have never been recognized before is not a valid reason for not recognizing them now.  You keep mentioning the "intent of the law"... which law?
THE law. US law. All of it. I am not making the argument that SSM should not be recognized now because they were never recognized before, I am challenging your notion that the use of the word "marriage" in US law was ever intended to include SSM as it may have in world history, therefore your assertions to the contrary are invalid.
QUOTE(logophage @ May 1 2005, 12:52 AM)
From how I'm reading entspeak's arguments, he wouldn't disagree with this point until your last clause.  Just because a thing wasn't intended doesn't mean that it is invalid.  Keep in mind that the Constitution discusses having an army and a navy but no airforce.  I'm sure that the airforce was never "intended" by the writers of the Constitution.  Should it be proscribed just because of this?
In your first assertion near the top of this post, you seem to imply (correct me if I am wrong) that the word "marriage" as it is used in US law would inherently include SSM were it not specifically excluded-- my statement here is still addressing that point, while contradicting the idea that my purpose is to argue that something shouldn't be legal now just because it was never legal before. Considering you continue to assume that I'm doing something that I very clearly state I am not doing, then you seem to have missed both points, so I'll try to explain differently. If US law needs to be changed to allow SSM, then let it be changed-- we have a legislature for that. A court did not find a consitutional right for the Air Force by asserting the word "Army" inherently included an Air Force and then forcing the country to build and Air Force whether we wanted to or not-- the Air Force was enacted by the legislative branch. If SSM wants to take the same route to legalization as the Air Force, through the legislative branch, fine by me.

QUOTE(Jack22)
QUOTE(entspeak)
However, the intent of those laws is what is being called into question.  You can't use the intent of a law to justify the intent of the same law.  That is a circular argument.
...and asserting I have done such a thing is a blatantly obvious straw man-- obviously I have done no such thing. I've been addressing the entire law and claiming intent to exclude SSM by your inability to provide evidence that SSM was performed under it. When you stoop to making silly claims about my line of reasoning, you're not helping your case.
QUOTE(logophage @ May 1 2005, 12:52 AM)
I'm confused because my reading of your position, Jack22, is exactly what entspeak has stated here.  Perhaps, you could make it more clear exactly what you've demonstrated apart from the tautological.
Here, I have been accused using the phrase "the law" to refer to a specific law rather than the entire US legal tradition-- I understand the two are not precisely interchangeable, but in casual conversation they often are. When a police officer gets sworn in, he promises to "uphold the law." Which law? Which one? A specific one? Nope. All of it. The accusation of circular reasoning here would only apply if I had been referring specifically to the intent of the laws banning SSM to justify the intent of those same laws. Instead, I was arguing that the US legal tradition had never been applied in such a way that allowed SSM until recent years, even before there were any laws banning SSM. There's nothing circular about that-- the charge of circular reasoning would only apply if I had used "the law" to specifically single out SSM bans, and then asserted that their interpretation is valid because their interpretation is valid, which is not something I did.

QUOTE(Jack22)
If same sex couples were to claim marriage benefits without SSM being legal, the result would be no different than if a polyamorous group were to claim marriage benefits without polygamy being legal-- a felony. Your assertion that the two are somehow distinct because a felony is involved doesn't wash-- so long as a polyamorous group doesn't claim to be married, what they are doing is perfectly legal and not considered a felony, just like same sex couples. It is not until claiming marriage that polyamory becomes polygamy and a felony, and if a same sex couple were to do the same thing in a state where SSM is not legal, it too would be a felony. Your point about polygamy being a felony and homosexuality not being a felony was a comparison of apples to oranges.
QUOTE(logophage @ May 1 2005, 12:52 AM)
If a heterosexual couple claimed marriage benefits without being married, a felony would also be committed.  Are you arguing that heterosexual marriage should be illegal too?
*


Nope, not arguing heterosexual marriage should be illegal, but that the classification of polygamy as a felony does not really give it any special status apart from any other form of illegal marriage such as SSM, as entspeak had asserted. Here I was countering a specific claim, rather than extending my main argument in any way.

It is true that polygamy is a felony and homosexuality is not, but that is only because polygamy is a formalization of polyamory through an illegal attempt at marriage. A comparison of apples to organges has been made. The apples are homosexuality and polyamory, and the oranges are SSM and polygamy. The apples are legal and the oranges are illegal in most places. Everywhere the oranges are illegal, it is a felony to attempt them-- yet the apples are not illegal. It is fair to compare the legal status of homosexuality to polyamory and to compare SSM to polygamy because those are apples-to-apples and oranges-to-oranges comparisons. SSM is a formalization of a homosexual relationship, polygamy is a formalization of a polyamorous relationship and traditional marriage is a formalization of a heterosexual relationship. Wherever such formalizations are not currently legal, it would be a felony to attempt them. Heterosexual marriage is not inherently a felony (although it could become one if entered into illegally or fraudulently)-- Where SSM and polygamy are illegal, attempting them illegally is a felony even though unformalized homosexuality and polyamory are legal.

I'm not intending to imply anything from these clarifications other than to specifically counter the specific claim that SSM should be legal because homosexuality is legal while polygamy is a felony-- that's an apples-oranges comparison.

edited for grammar and clarity
entspeak
QUOTE(Jack22 @ May 1 2005, 12:27 AM)
QUOTE(entspeak)
These are the laws that were amended, starting in 1973, to restrict marriage to opposite sex couples.
...in response to the first assertions that the word "marriage" might no longer be as sufficient as it had always been in the US as an explicit excluder of SSM.

QUOTE(entspeak)
But just prior to these amendments to the state laws, same-sex marriage was technically legal.  There were no longer any laws preventing it.
...only if one can make the illogical leap that the world history definition of "marriage" and the US legal tradition's definition of "marriage" were one and the same.

QUOTE(entspeak)
Legally, however, nothing changes.  It is absurd to state that judges finding same-sex marriage bans unconstitutional are "legislating" from the bench.  What laws are they creating?
The ones that allow SSM for the first time in history.

QUOTE(entspeak)
Again, the argument that same-sex marriages have never been recognized before is not a valid reason for not recognizing them now.  You keep mentioning the "intent of the law"... which law?
THE law. US law. All of it. I am not making the argument that SSM should not be recognized now because they were never recognized before, I am challenging your notion that the use of the word "marriage" in US law was ever intended to include SSM as it may have in world history, therefore your assertions to the contrary are invalid.

QUOTE(entspeak)
The only laws existing that are relevant are laws explicitly banning same-sex marriage.
Nope, the most relevant laws are those mentioning marriage under which no SSMs were performed and therefore proving that even before the law cleared up any possible misunderstandings, it did not mean marriage to include SSM.

QUOTE(entspeak)
However, the intent of those laws is what is being called into question.  You can't use the intent of a law to justify the intent of the same law.  That is a circular argument.
...and asserting I have done such a thing is a blatantly obvious straw man-- obviously I have done no such thing. I've been addressing the entire law and claiming intent to exclude SSM by your inability to provide evidence that SSM was performed under it. When you stoop to making silly claims about my line of reasoning, you're not helping your case.


Ah, okay. I follow you now. You are absolutely wrong, but at least I understand what you are saying. You are saying that there are still a number of laws that make same-sex marriage illegal in addition to the explicit bans created by the amendment to state lawdue to the fact that they use the word "marriage". So, the legal definition of "marriage" is crucial to your argument. You ask me what the legal definition of marriage was just prior to the laws being amended? Okay.

Example: in California the legal definition of marriage was:

QUOTE
Family Code Section 4100 prior to being changed
Marriage is a personal relation arising out of a civil contract between two persons


Family Code Section 4100 was amended to introduce gender specific language into this "definition":

QUOTE
Family Code Section 4100 (now Family Code Section 300) after being changed
Marriage is a personal relation arising out of a civil contract between a man and a woman


You are telling me the first one is not a legal definition of marriage that suddenly became a legal definition of marriage after the amendment? And that the latter legal definition was actually what was meant by the former? Legally, that is not a valid argument.

QUOTE
Perez v. Sharp (1948):
It is the duty of the lawmaking body in framing laws to express its intent in clear and plain language to the end that the people upon whom it is designed to operate may be able to understand the legislative will.


With this in mind, according to the first legal definition of marriage and in absence of other laws existing in the marriage contract to implicitly preclude same-sex marriage (California's sodomy law was repealed the year before the amendment occurred -- the original intent of said law was to prevent people from engaging in sexual activity that did not allow for the possibility of procreation), same-sex marriage was, technically legal in California just prior to the amendment.

QUOTE
And we're back to the originalist-activist debate. I say the rule of law means that legal tradition must be upheld unless a compelling case can be made against it-- others say that legal tradition must be overturned unless a compelling case can be made to continue it. Originalism v. Activism is not a point we're likely to resolve conclusively in this debate no matter how forcefully each of us asserts our positions.


An activist judge is one who imposes his own agenda at the expense of a neutral analysis of the law. You have yet to show any neutral analysis of the law to counter my argument. You aren't making a legal argument, which is what is called for in this particular debate. You have yet to provide any legal counter to my argument. You are going to have to show me some legal evidence that a "legal tradition" that has no rational basis for its continued existence can't be overturned unless a compelling case can be made against it. That notion, however, defies the rules regarding strict scrutiny analysis regarding restrictions on a fundamental right. I have already explained strict scrutiny to you. Are you going to tell me that sctrict scrutiny is not a valid form of legal analysis? If so, you are going to have to provide some proof that this is the case.

QUOTE
If same sex couples were to claim marriage benefits without SSM being legal, the result would be no different than if a polyamorous group were to claim marriage benefits without polygamy being legal-- a felony. Your assertion that the two are somehow distinct because a felony is involved doesn't wash-- so long as a polyamorous group doesn't claim to be married, what they are doing is perfectly legal and not considered a felony, just like same sex couples. It is not until claiming marriage that polyamory becomes polygamy and a felony, and if a same sex couple were to do the same thing in a state where SSM is not legal, it too would be a felony. Your point about polygamy being a felony and homosexuality not being a felony was a comparison of apples to oranges.

Marriage fraud is a felony that is completely separate from bigamy. An individual who engages in bigamy (a felony) is also engaging in marriage fraud (a felony) but the two aren't mutually exclusive. One can commit marriage fraud completely independent of committing bigamy. A heterosexual couple can commit marriage fraud without committing bigamy. So, while marriage fraud is related to bigamy it is not the sole reason bigamy is a felony. If it were, there wouldn't need to be a bigamy law... it would just be called marriage fraud.

bigamy in addition to being excluded from legal recognition by law is also, in and of itself and distinct from laws making marriage fraud a crime, a felony.
same-sex marriage while also excluded from legal recognition by law is not.

That was my point.

QUOTE
QUOTE(entspeak)
Allowing for same-sex couples has absolutely no effect on the possibility of heterosexual couples procreating in marriage.  Unless, through some stroke of magic, allowing homosexuals to marry is going to somehow keep heterosexuals from procreating, the difference is irrelevant when related to the exclusion. [...] The possibility of procreation is not a requirement of marriage, the difference is irrelevant when related to the exclusion.  [...] The same goes for child-rearing... it is not an essential aspect of marriage.
... while others would argue that keeping the general structure of our most fundamental social institution supportive of parenting from procreation onward favors continuing to keep marriage defined as between one man and one woman, even though cases may exist where married couples choose not to participate (or for medical reasons cannot participate) in parenting from procreation onward.


So somehow support for parenting from procreation is harmed by allowing those who can't procreate to participate in marriage? So, the State's interest is in keeping marriage supportive of parenting through procreation? Under strict scrutiny the exclusion must be necessary in order to further that interest. You are going to have to prove that somehow the support of procreative efforts of heterosexual couples in marriage is undermined by allowing non-procreative couples to marry.

How would support for parenting from procreation be withdrawn, impaired or restricted by allowing same-sex couples to marry? It obviously isn't affected by cases where heterosexual couples either choose not to have children or are incapable of having children. Why would allowing same-sex couples to marry affect it any more or less? It wouldn't. Heterosexual couples will be able to proceed in marriage just as they always have when it comes to having children through procreation and they will continue to be supported by laws governing such occurences. That doesn't change. This is why the exclusion is not necessary to further the State's interest in procreation. And if the State allows heterosexual couples who are incapable of procreating either by medical condition or age, acknowledging the fact that this has absolutely no effect on the ability of the state to promote procreation for heterosexual couples who can and choose to have children, the exclusion of same-sex couples, for reasons related to that interest, is arbitrary and unnecessarily discriminatory -- and, therefore, unconstitutional.

QUOTE
When attempting to change the fundamental organizational structure of society in an unprecedented way, those who wish to change it must also prove their case


You have yet to provide any legal evidence that supports your assertion that it is the minority requesting access to the right who must prove their case in this situation. That defies well established rules of law... the rules regarding strict scrutiny analysis to be exact. I'm not saying that you have to like it, but if you are going to attempt to refute it, you are going to have to be able to back up your assertions.
Bikerdad
QUOTE
BikerDad, it wasn't your post I was taking issue with. In fact, I said I agreed with you. I - like other posters in this thread - take issue with (or as you so helpfully put it "piddle and moan" about) the constraints imposed by the entspeak's initial conditions. I'm sorry I didn't make it clear enough that I agreed with you when I wrote "I agree with Bikerdad's conclusion here...".
...
Capiche? Yes Bikerdad, I "capiche" - in fact that was what I was "piddling and moaning" about; that the scope of the conditions was too limited to be useful.

Given that all of the respondents before you specifically objected to the narrowness of the questions, and you did not, but did object to deficiencies in the answers, I failed to adequately read between the lines and see that you are agreeing with my conclusions (hmmm, is my objection to the framing of the questions a conclusion? huh.gif ) without reservations. Oops, you do appear to have reservations, if one assumes that you consider the lack of "rational, moral" arguments to be indicative of error. Perhaps you can understand my confusion?

QUOTE
QUOTE
Wow, it took 9 posts before the hoary old "homophobe" attack comes out.  Prettied up I'll admit, but the same attack.  "Unreasoned prejudice"...  whistling.gif


Wow, you bring up homophobia and yet I'm somehow the one responsible for bringing out the "homophobia attack". Nice trick, Bikerdad.

The reason I call it "unreasoned prejudice" and not homophobia is because it's not necessarily homophobia that keeps same-sex marriage illegal. I don't think most Americans are homophobes, they just have an unexamined but strongly-felt opinion that same-sex couples are so different from opposite-sex couples that marriage does not apply to them. (Context: This was in response to hayleyanne's position that SSM proponents should take the issue to the American voting public.)

My apologies for reading more into your phrase than you intended. You are aware that calling opponents of SSM "homophobes" is quite common? The nuances of "unreasoned prejudice", as opposed to "irrational bigotry" or "mindless homophobia" are a bit challenging to untangle after years of the homophobe charge tossed about as freely as the poverty pimps toss charges of "racism".

QUOTE
So if you want me to call someone a homophobe, Bikerdad, you're going to have to find me an actual homophobe. Capiche?
CruisingRam can point them out to you..... he sees them everywhere... ph34r.gif

QUOTE
I think maybe we are talking past one another. You basically said "The majority rules." I agreed with you but added that the minority must hold the majority accountable for its position if the minority position is truly rational, moral, and just (which of course I think it is). I did not attempt a legal argument because I (like other posters in this thread) find the initial constraints problematic.
blink.gif As noted, your objections to the initial constraints were not obvious. Nonetheless, it still sounds like you're saying "well, I agree with the logical conclusions you've reached, but based on these external factors which I'm not going to bother to address, you're wrong." Which leads me to wonder, why, if you find the constraints of the question to confining, you're even bothering to post in this thread? You don't answer the question, but you're perfectly content to declare that
QUOTE
Even on a forum dedicated to rational debate, same-sex marriage opponents don't debate constructively. - RobertB
As an opponent of same-sex "marriage", who has made a rational case under the constraints of the question, what am I supposed to conclude from that statement?

QUOTE
QUOTE
What you have done, as has CruisingRam, is deployed the "homophobe" ad hominem attack, rather than simply answering the topic's questions.


Guilty as charged on not simply answering the topic's questions. But Bikerdad, 1) who did I attack ad hominem, and 2) who did I call a "homophobe"? If I've done so, report me to the mods. If I haven't, it makes it look like you're just trying to score rhetorical points by putting words in my mouth.
See my concerns with "unreasoned prejudice." Toss in your contention that "SSM opponents don't debate constructively", especially considering the dialogue that Jack22 is engaged in with Entspeak, and perhaps you can see the challenge? You don't answer the topic, you don't respond directly to the points raised by SSM opponents (in fact, as you've reiterated numerous times, you agree with my conclusions), yet you still find time for accusations of "unreasoned prejudice", SSM opponents lack of "rational, moral arguments" and our failure to "debate constructively". It looks to me like you haven't debated the topic, you haven't provided examples of why our arguments are not rational and moral, and you haven't provided examples of non-constructive debate. What's left of your post?

As for reporting to the mods, I don't bother. I've already seen that its perfectly acceptable on this board to accuse millions of voters of homophobia, and as CruisingRam has demonstrated, even the entire country can be so demonized without raising even a moderator eyebrow. I won't waste the moderators' time with what I take to be veiled accusations, particularily when they are generalized, rather than specific. I simply make my objections in the thread, giving the other party an opportunity to clarify, as you've done.

Respectfully, BD

edited to correct formatting problems and add content.
entspeak
QUOTE(Bikerdad @ Apr 27 2005, 02:43 PM)
1. Same-sex marriage does not redefine marriage.

2. There is no slippery slope to polygamous and incestuous marriage.
  For the record, both of these hypotheticals are wrong.  However, I'll play your game.


Okay. How are they wrong?

Regarding the first:

Example, California's legal definition of marriage before 1977:

QUOTE
Marriage is a personal relation arising out of a contract between two persons


That was it. Now, why didn't same-sex couples marry before if this was the legal definition of marriage? Hmmm... well, sodomy laws (repealed in California in 1976). Married couples (all couples, in fact) were not legally allowed to engage in any type of sexual activity except penetrative vaginal intercourse. The sexual relations between homosexuals was illegal. That is why same-sex couples were not allowed to marry in California even with a definition of marriage that did not exclude them.

Now, regarding marriage as an institution being re-defined, you are going to have to show me something essential that will change. The argument, "same-sex marriage shouldn't be allowed because same-sex marriage will be allowed if it is" doesn't really work. Same-sex marriage will have absolutely no effect on the marriages of heterosexual couples. Same-sex couples will be required to adhere to the exact same marriage contract that heterosexual couples do, nothing in that contract has to change. So what is redefined? A historical tradition that civil marriage is between those of the opposite sex? As I've explained to Jack22, when it comes to a fundamental human right -- the right to marry, tradition -- in and of itself-- is legally not enough to justify the exclusion because the tradition is no longer supported by the law. Legally, there used to be a reason to exclude same-sex couples, that reason is gone, the tradition, legally, is no longer useful -- unless, of course, you want to use it to unnecessarily discriminate against a class of people.

Regarding the second:

To simplify something that I have gone into detail about repeatedly in the other thread: bigamy is a felony, incest is a felony... before either of these types of relationships are ever allowed to be legally recognized in marriage, the issues surrounding why they are felonies will have to be addressed. This is what occured with same-sex couples, the only legal bar to same-sex marriage really was the sodomy laws. Good, bad, whatever... those laws are gone. The other argument about the slippery slope relies on same-sex marriage being a "redefinition" marriage. But since the allowance for same-sex marriage is not a "redefinition" but a return to the legal definition that has existed in this country for quite some time, as a legal argument the slippery slope is not valid.

Might polygamy become legal at some point... maybe. But, as I have shown using Utah v. Green for an example, the State has compelling interest for keeping polygamy illegal. If it didn't, polygamy would be legal today regardless of whether same-sex couples were ever allowed to marry.

Might sibling incest become legal at some point... maybe. 26 States allow first cousins to marry (some of which require proof that the couple is unable of procreating), that seems more likely to lead to incestuous marriage between siblings than same-sex marriage. And, again, if the State doesn't have a compelling interest in preventing siblings from having sex, incestuous marriage would be legal today regardless of whether same-sex couples were ever allowed to marry.

So, there is no slippery slope.

If you would like to argue against the first point, I would only ask that you do it in the History of Marriage thread, becaus that is the relevant forum for that discussion.

Feel free to argue regarding the second point in this thread, as Jack22 and I have been been discussing the topic.

QUOTE
A legal argument is one based on laws on the books.  Thus, for Ohio, Nevada, Missouri, Oregon, Louisiana, etc, the valid legal argument is their state Constitutions.  Nothing more is required.  For other states that have passed statutes limiting marriage, there may be some question as to whether or not those laws conflict with their state constitutions.


Well, those are the laws in question, so they can't be used to justify themselves. That is a circular argument.

QUOTE
The second aspect, for those states that haven't addressed the question at all, is common law, which has defined marriage as being between parties of the opposite sex since before our country was founded.  Even during the brief period when polygamy was being practiced in the Utah Territory, marriage was exclusively between members of the opposite sex.  When one gets to the Federal level, the valid legal argument is DoMA and state's rights.


So, an unwritten definition supercedes a written legal definition? I don't think so. If you are referring to tradition, tradition is not enough in and of itself to justify an exclusion.

The DoMA can be constitutionally challenged and the 14th Amendment is about limiting State's rights in certain situations.

QUOTE
Any legal argument made before the Supreme Court today in support of same-sex marriage (thus seeking to overturn DoMA and the state constitutional provisions of more than a dozen states) will also find itself curiously hemmed in by the recent juvenile death penalty decision.


The reason that a different standard, the "consensus" was used in the juvenile death penalty decision, was in order to come to a definition of "cruel and unusual punishment". That doesn't apply here because there was an existing legal definition of marriage prior to their being amended, there is an existing description of marriage as a fundamental human right -- neither of these excluded same-sex couples. There is no need to establish a "consensus" where the definitions are clear.
Zarathustra
QUOTE(CruisingRam @ Apr 29 2005, 06:58 AM)
That is the point- there IS NO ARGUMENT against gay marriage that is not religiously based. As shown in the "how is marriage harmed" - there just is no legal only- based secular argument that flies in this debate.

Will I suddenly have to divorce my wife simply because some gays got married?  hmmm.gif -


This simply isn't true.

In this, and previous threads, the anti-gay marriage argument was clearly laid out and it has nothing to do religion.

Let me restate the argument, as clearly as possible:

1) "Traditional Marriage" is a cornerstone of societal structure.
2) Changing the definition of "traditional marriage" could change societal structure.

Now, where do you see religion the above argument? It doesn't exist. Some people claim anti-gay bias in such discussions, but I see pervasive an anti-religious bias.
Zarathustra
QUOTE(entspeak @ May 4 2005, 05:26 AM)
QUOTE(Bikerdad @ Apr 27 2005, 02:43 PM)
1. Same-sex marriage does not redefine marriage.

2. There is no slippery slope to polygamous and incestuous marriage.
  For the record, both of these hypotheticals are wrong.  However, I'll play your game.


Okay. How are they wrong?

Regarding the first:

Example, California's legal definition of marriage before 1977:

QUOTE
Marriage is a personal relation arising out of a contract between two persons




Ent, your argument is fundamentally and completely flawed. I've stated this argument before and you've never rebutted. So, let me say it again... I hope you have the courage to answer the challenge this time:

It doesn't matter that the law didn't spefically define marriage as exclusively between "a man and a woman". When the law doesn't spefically define a term, the common definition is used. This is exemplified by Jones v. Hallahan:

"In 1973, in the case of Jones v. Hallahan, a lesbian couple in Kentucky attempted to acquire a marriage license, but the state refused to grant them one. They claimed that by denying them a marriage license, the state was depriving them of three constitutional rights. They were the right to marry, the right to associate, and the right to freely exercise their religion. In its decision, the Court of Appeals of Kentucky noted that the Kentucky statutes relating to marriage did not include a definition of marriage. The court claimed that in the absence of a definition, the common usage must be used. To find the common usage the court used the definitions of three dictionaries: the Webster's New International Dictionary, Second Edition; The Century Dictionary and Encyclopedia; and the Black's Law Dictionary, Fourth Edition. All three dictionaries have defined a marriage specifically as a union between a man and a woman. Based on these definitions, the court ruled that what the couple proposed was not a marriage."

http://neovox.cortland.edu/vox/vox_37/vox_37.html
entspeak
QUOTE(Zarathustra @ May 5 2005, 11:48 AM)
Ent, your argument is fundamentally and completely flawed. I've stated this argument before and you've never rebutted. So, let me say it again... I hope you have the courage to answer the challenge this time...

When the law doesn't spefically define a term, the common definition is used. This is exemplified by Jones v. Hallahan:

"In 1973, in the case of Jones v. Hallahan, a lesbian couple in Kentucky attempted to acquire a marriage license, but the state refused to grant them one. They claimed that by denying them a marriage license, the state was depriving them of three constitutional rights. They were the right to marry, the right to associate, and the right to freely exercise their religion. In its decision, the Court of Appeals of Kentucky noted that the Kentucky statutes relating to marriage did not include a definition of marriage. The court claimed that in the absence of a definition, the common usage must be used. To find the common usage the court used the definitions of three dictionaries: the Webster's New International Dictionary, Second Edition; The Century Dictionary and Encyclopedia; and the Black's Law Dictionary, Fourth Edition. All three dictionaries have defined a marriage specifically as a union between a man and a woman. Based on these definitions, the court ruled that what the couple proposed was not a marriage."

http://neovox.cortland.edu/vox/vox_37/vox_37.html
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Okay, I accept that. But that applies to a state in which there was no statutory legal definition of marriage. In Kentucky, there was no explicit exclusion of same-sex couples and no statutory legal definition of marriage, so the courts were open to defining marriage through other means. But that was in absence of a statutory definition. The couple was not challenging the constitutionality of a law, but of a State action that the court decided could be based on "common usage" in absence of a statutory legal definition.

The example I gave was a situation in which "statutes relating to marriage" did "include a definition of marriage."

In California, what I quoted was the statutory legal definition of marriage. And according to that statutory legal definition and in absence of other laws precluding same-sex marriage a lesbian couple would fit the state's definition of marriage in California. This wasn't the case in Kentucky in 1973. Kentucky also had a sodomy law until 1992, so I would argue that same-sex marriage should not have been allowed so long as there was a sodomy law on the books -- homosexual behavior was illegal. It is difficult to answer specifically, regarding Jones v. Hallahan, as to whether sodomy laws were mentioned in the case without access to the decision itself. You wouldn't happen to know where I can read that do you? If so, please provide the link -- thanks.

Kentucky did enact a statutory legal definition in 1998, however. When a statutory legal definition is created that statute is certainly open to challenge regarding its constitutionality in the same way the California statute was... using strict scrutiny. And a dictionary definition then does not become a valid legal argument. "Common usage" of a word does not represent a compelling State interest.
Zarathustra
QUOTE(entspeak @ May 5 2005, 10:26 PM)
Okay, I accept that.  But that applies to a state in which there was no statutory legal definition of marriage.  In Kentucky, there was no explicit exclusion of same-sex couples and no statutory legal definition of marriage, so the courts were open to defining marriage through other means.  But that was in absence of a statutory definition.  The couple was not challenging the constitutionality of a law, but of a State action that the court decided could be based on "common usage" in absence of a statutory legal definition.

The example I gave was a situation in which "statutes relating to marriage" did "include a definition of marriage."

In California, what I quoted was the statutory legal definition of marriage.  And according to that statutory legal definition and in absence of other laws precluding same-sex marriage a lesbian couple would fit the state's definition of marriage in California.  This wasn't the case in Kentucky in 1973.  Kentucky also had a sodomy law until 1992, so I would argue that same-sex marriage should not have been allowed so long as there was a sodomy law on the books -- homosexual behavior was illegal.


True enough, California defined marriage as between "two persons", however they also had sodomy laws prohibiting such a union until 1975.

To be clear here, I'm only arguing about the historical 'definition of marriage'. Gay marriage was never legally allowed or explicitly accepted in the US. It was prohibited either outright by sodomy bans or through rulings like Jones v Hallahan. To say that the law was silent on gay marriage until 1977 is wrong.

History is very clear on marriage. To recognize gay marriage is to re-define marriage. That is my only contention here.

QUOTE
It is difficult to answer specifically, regarding Jones v. Hallahan, as to whether sodomy laws were mentioned in the case without access to the decision itself.  You wouldn't happen to know where I can read that do you?  If so, please provide the link -- thanks.


Sorry, I've looked for the ruling itself, but I only can find references to it. As far as I can tell it made no mention of sodomy laws.

QUOTE
Kentucky did enact a statutory legal definition in 1998, however.  When a statutory legal definition is created that statute is certainly open to challenge regarding its constitutionality in the same way the California statute was... using strict scrutiny.  And a dictionary definition then does not become a valid legal argument.  "Common usage" of a word does not represent a compelling State interest.
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I agree with you... "common usage" does not represent a compelling State interest. I believe that was original point of this thread: "Is there a compelling State interest in not recognizing gay marriage?"

In that light, what exactly is the compelling State interest to give benefits and rights to heterosexual couples? I'm not sure, unless it's to promote and increase childbirth and the raising of children. Obviously, not all couples have kids, so should these benefits only apply to marriage that produce children?

Furthermore, what is the benefit to society for government to reward gay marriage? (Remember that gays can get married--this is not the true issue--what is being considered is government recognition and incentive of that marriage.)

Perhaps "compelling State interest" leads us to believe that government should have no place in marriage at all, outside of an empty "business" type contract, stating partnership. In my mind, this is yet another road on which marriage is weakened or destroyed.
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