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Hit and Run Marriage
Tuesday, November 25th, 2003Cathy Young has a great post over at Hit and Run on an article in Commentary by Sam Schulman on gay marriage. It’s a long article, but interesting. Or just check out Cathy’s post, which hits the highlights. Having read both, I have some additional comments.
First, I always wonder, when I hear the argument that legalizing gay marriage would open the door to polygamy, why people don’t jump on the idea that polygamy seems more of a natural progression from heterosexual marriage than it does from homosexual marriage. If marriage is good for families, isn’t two marriages in one family better than one? Isn’t two mothers engaged in child-rearing better than one? If marriage is for procreation, can’t two women reproduce more than one? If marriage protects women, isn’t one man protecting two women more efficient than one man protecting one woman? I’m not saying I’m in favor of polygamy (though I’m not saying I’m against it)–but doesn’t it seem more logical that polygamy advocates would argue that the benefits of heterosexual marriage are essentially doubled/tripled/quadrupled or what have you in polygamous arrangements?
Second, Schulman essentially ignores the fact that young women today don’t particularly care to have their sexuality “gathered-in…under the protective net of the human or divine order.” It doesn’t particularly faze young women these days that their mothers or some aged feminists think they are being victimized. Ignoring that fact ignores reality and in my opinion wholly invalidates everything Schulman has to say. I think it’s infinitely more likely that a good self-defense class and some pepper spray do more to protect a woman from rape than the “civil and private order” of marriage. Schulman says, marriage protects women and women need protecting–hence gay marriage is bad. Or put another way, gay marriage will infringe on women’s monopoly of need for protection, protection by a man being that which “frees” them. I don’t think I’m the only woman who finds that logic both absurd and off-putting.
It seems that Schulman’s argument basically breaks down into a religious one: marriage is an institution based around a woman’s sexuality. A woman’s sexuality is sacred (which is why marriage is based around a woman’s sexuality) and it needs protection. Gay marriage threatens that protection, therefore gay marriage threatens things that are sacred, and therefore gay marriage is wrong. But as critics of gay marriage often do, Schulman fails to say exactly how gay marriage leads to losing men from the pool of protectors–odds are, they weren’t likely to be protectors in the first place. It is an interesting attempt at convincing women that gay marriage is bad for them, but in the end, it is the same old religious argument against gay marriage in women’s clothes.
UPDATE: More on this–Cathy Young has a Reason daily on the subject and Jacob Sullum weighs in on Hit and Run.
I don’t think the government should be marrying homosexuals. In fact, I don’t think the government should be marrying heterosexuals.
Marriage is a government subsidy of heterosexuality. Why should who I sleep with grant me extra tax benefits?? These religious fundamentalists are confusing Marriage the “holy sacrament” (with its 50% divorce rate) and Marriage the tax break. Keep government out of my religion. Keep religion out of my government.
Well, my,my,my â?¦ Brooke Oberwetter pro-polygamy?!?! Whoâ??d a thunk it? Why Ms. Oberwetter is it my imagination, or do you just keep getting more and more attractive â?¦ ? ;-)
Brooke Oberwtter First, I always wonder, when I hear the argument that legalizing gay marriage would open the door to polygamy, why people don’t jump on the idea that polygamy seems more of a natural progression from heterosexual marriage than it does from homosexual marriage. If marriage is good for families, isn’t two marriages in one family better than one? Isn’t two mothers engaged in child-rearing better than one?
A good point. If it is acceptable for a single mother to raise children, how can it be less acceptable for a child to have 3 loving â??parentsâ??
Brooke Oberwtter If marriage is for procreation, can’t two women reproduce more than one?
Yeah, but what happens if you have two men married to one woman?
Brooke Oberwtter If marriage protects women, isn’t one man protecting two women more efficient than one man protecting one woman? I’m not saying I’m in favor of polygamy (though I’m not saying I’m against it)–but doesn’t it seem more logical that polygamy advocates would argue that the benefits of heterosexual marriage are essentially doubled/tripled/quadrupled or what have you in polygamous arrangements?
Definitely. That is why I have been saying anyone arguing for homosexual marriages who isnâ??t also arguing for polygamy is being a hypocrite.
Brooke Oberwtter Second, Schulman essentially ignores the fact that young women today don’t particularly care to have their sexuality “gathered-in…under the protective net of the human or divine order.” â?¦
None of this part made any sense to me.
Brooke Oberwtter It seems that Schulman’s argument basically breaks down into a religious one: marriage is an institution based around a woman’s sexuality. A woman’s sexuality is sacred (which is why marriage is based around a woman’s sexuality) and it needs protection.
Iâ??m not sure I would necessarily classify that as a â??religious statementâ?, but go on â?¦
Brooke Oberwtter Gay marriage threatens that protection, therefore gay marriage threatens things that are sacred, and therefore gay marriage is wrong.
Sounds like a non sequitur to me, but I didnâ??t read her article yet.
Brooke Oberwtter But as critics of gay marriage often do, Schulman fails to say exactly how gay marriage leads to losing men from the pool of protectors–odds are, they weren’t likely to be protectors in the first place. It is an interesting attempt at convincing women that gay marriage is bad for them, but in the end, it is the same old religious argument against gay marriage in women’s clothes.
The argument against Gay marriage is the same as the argument that we donâ??t need to change federal law in order for Jehovahâ??s witnesses to give each other presents on their birthdays and at Christmas time.
The Argument for Gay marriage is just the latest attempt by the Secular-Atheist Theocracy to force their Religion down the rest of our throats. Atheists donâ??t believe in our â??antiquated notionsâ? of majority rule, they are guided by the â??higher powerâ? of their â??One â??trueâ? Faithâ?.
(Serpent’s comments)…thus the reason marriage of any sort should not be litigated by govt. What happened to self-governing?
Ms. Dani: thus the reason marriage of any sort should not be litigated by govt. What happened to self-governing?
Ohh I agree completely. I would like nothing better than to see the government completely out of the marriage business. The only role I can see them playing is the registration of Births, Marriages, and Deaths, for purposes of the Census.
But no one here has really been discussing reducing the governments role in our lives. It seems that most of the people on this site are only interested in granting the government expanded powers over our Fate.
Hey, I was thinking about what we were talking about before.
Liberalism = Expanding governmental rules (power). Increasing conformity, Increasing Equality.
Conservatism = Maintaining governmental rules (power). Maintaining conformity, Maintaining Equality.
Libertarianism = Refining (perfecting) governmental rules (power). Reducing conformity (Increasing Individuality), Reducing Equality (Increasing Diversity).
“anyone arguing for homosexual marriages who isnâ??t also arguing for polygamy is being a hypocrite.”
As for the “arguing for” part, the difference is that there is not an avid interest group pursuing the issue. Personally, I’m fine with multiple marriages. But not being an expert in the legal ramifications, I would only wonder if the contractual arrangements might not be easily transferrable from two people to several. But if that’s not a hurdle, sure, go for it! I admit that the experiences of so-called rebel Mormons in Utah who surreptitiously practice polygamy is replete with stories of abused and abandoned multiple wives, though I strongly suspect that this phenomenon is largely, if not almost entirely, a factor of the practice’s black market status, just as with the violence that surrounds the illicit drug trade.
As for Serpent’s second to last paragraph, the question is one of the government granting licenses that carry certain advantages to some people but not to others, that is why gays can’t just shack up and call themselves married and be done with it. And as to the last paragraph, well, we could go back and forth making unsubstantiated accusations all day long, eh? I make it my own personal policy to address my opposition’s arguments at their best, not at their (suspected) worst. I think it’s a good policy that I recommend for all.
Serpent, that is pretty acurately how I personally would define those ideologies. Also, Liberalism is synonymous with Socialism, isn’t it?
Like most of you, I don’t see why government is involved in the marriage business.
But I find it interesting how many libertarians continue down the path of “We should permit X and here is the moral case for X.”
Isn’t is possible that something is a horrible idea — say, gay “marriage” — but should also be permitted?
And while Brooke didn’t understand the argument that gay marriage might be bad for females, I think it’s interesting. Again, while it doesn’t mean that government should prohibit gay “marriage,” it is interesting how women are being needed less and less these days.
In a sense, marriage traditionally was a great protector of women and children. And that is going away. And libertines — I mean libertarians — are cheering the whole way.
fyodor: â?¦ the difference is that there is not an avid interest group pursuing the issue [polygamy]. Personally, I’m fine with multiple marriages. But not being an expert in the legal ramifications, I would only wonder if the contractual arrangements might not be easily transferable from two people to several. But if that’s not a hurdle, sure, go for it! I admit that the experiences of so-called rebel Mormons in Utah who surreptitiously practice polygamy is replete with stories of abused and abandoned multiple wives, though I strongly suspect that this phenomenon is largely, if not almost entirely, a factor of the practice’s black market status, just as with the violence that surrounds the illicit drug trade.
The problem you have arguing against polygamy based on anecdotal tales of abuse is that homosexuality is also replete with anecdotal tales of abuse. So if that logic is grounds for making polygamy illegal then it is also grounds for making homosexuality illegal.
fyodor: As for Serpent’s second to last paragraph, the question is one of the government granting licenses that carry certain advantages to some people but not to others, that is why gays can’t just shack up and call themselves married and be done with it.
If you and I are â??best friendsâ?? does that carry any â??government bestowed advantageâ?? Does that mean it is not beneficial to have a â??best friendâ??
fyodor: And as to the last paragraph, well, we could go back and forth making unsubstantiated accusations all day long, eh?
It is NOT an unsubstantiated claim that the majority of Americans opposes homosexual marriage. It is also NOT an unsubstantiated claim that there are NO LAWS prohibiting homosexuals from marrying.
Ms. Dani: Serpent, that is pretty accurately how I personally would define those ideologies. Also, Liberalism is synonymous with Socialism, isn’t it?
Iâ??d say so.
In a Socialist system you generally have a â??superiorâ? minority making decisions for the â??inferiorâ? majority. You get increasing Equality and Conformity, and decreasing Individuality and Diversity.
Serpent,
“The problem you have arguing against polygamy…”
What do you mean by “arguing against polygamy”? I was arguing for the legalization of polygamy. It’s true that I would count myself as being against the abandonment of women and children that occurs within polygamy as it’s currently practiced, but I attribute that problem to polygamy’s illegal status.
“If you and I are â??best friendsâ?? does that carry any â??government bestowed advantageâ??”
There are a number of rights that are recognized by the government that go along with a marriage license. So obviously it’s more than just two people declaring themselves best friends.
Regarding your last paragraph again, I’ve re-read it and realized I misinterpreted it and went overboard a bit. A more cogent point would be that a belief in judicial review that sometimes trumps majority rule is hardly tantamount to trying to establish a Secular-Atheist Theocracy. That said, I admit that I am hardly certain that gay marriage is required by the Constitution. I do believe that the state should ideally get out of the marriage business altogether, but in lieu of that it should grant same-sex licenses to gays. And to polygamists, too, if, as I said previously, the legalities do not get too complicated with more than two people involved.
fyodor: [best friends â?¦] There are a number of rights that are recognized by the government that go along with a marriage license. So obviously it’s more than just two people declaring themselves best friends.
So what is the compelling reason for government to get involved when â??Marriageâ? is the issue that is not equally compelling when â??Best Friendsâ? is the issue?
What are the specific government mandated â??rightsâ? pertaining to marriage that you are referring to?
fyodor: Regarding your last paragraph again, I’ve re-read it and realized I misinterpreted it and went overboard a bit. A more cogent point would be that a belief in judicial review that sometimes trumps majority rule is hardly tantamount to trying to establish a Secular-Atheist Theocracy.
I agree that the Judiciary is designed to serve the purpose of interpreting the precise situation-specific ramifications of our laws; however, there is a big difference between interpreting the intent of a Law, and creating new laws via judicial activism. In the former case the Judiciary is fulfilling its designated purpose in the latter it is usurping the power of the governed and attempting to change what is in peopleâ??s heads by decree.
fyodor: That said, I admit that I am hardly certain that gay marriage is required by the Constitution.
I agree, although by the same token if the majority wants homosexual marriages there is certainly nothing in the Constitution prohibiting them.
fyodor: I do believe that the state should ideally get out of the marriage business altogether â?¦
I agree.
fyodor: â?¦ but in lieu of that it should grant same-sex licenses to gays.
I disagree. Not unless you get the consent of the majority.
fyodor: And to polygamists, too, if, as I said previously, the legalities do not get too complicated with more than two people involved.
I donâ??t see why they would. You can have business partnerships with more than two partners.
Serpent: whoo, you’re fast!!
Okay, what specific rights? Uh, I was afraid you’d ask me that! :-) I confess that I’m not an expert on that and cannot adequately repeat what I’ve read on several occasions, but I will mention a couple of things. There’s the right not to testify against a spouse (a right that might be illegitimate to extend to a limitless number of people), there’s implications for immigration policy, for inheritance, for health benefits, both directly as given out by the government and indirectly when a business accepts the government’s definition of marriage rather than go through the cumbersome task of treating each case individually. Virginia Postrel, for one, has written exensively and much more articulately on this than I can ever accomplish. I should hasten to add that even if you were to argue and I were to agree that the government should not be involved in some of these activities to begin with, sometimes you have to deal with the situation as it is rather than as you wish it would be. Julian Sanchez makes the point that arguing against gay marriage because the government shouldn’t be in the marriage biz at all is akin to arguing that the post office should not deliver the mail to everyone simply because there shouldn’t be a government postal system in the first place.
As far as the Judiciary’s ability to interpret laws, I cannot tell if you’re addressing what I mean by judicial review. I am talking about the ability of a court to invalidate a law’s provisions based on its unconstitionality. This goes beyond simply interpreting or applying a law in a specific situation. I despair that believing in such puts so much power in the hand of so few robes, but I believe it is an indespensible part of our checks and balances nevertheless. Anyway, not only does the belief in judicial review reside in others besides atheists, but there’s likely a majority of Americans who join in that belief, even if it results in the majority’s desires getting overridden at times.
fyodor: There’s the right not to testify against a spouse (a right that might be illegitimate to extend to a limitless number of people) â?¦
Can the â??governmentâ? (or anyone else) force you to (honestly) testify against anyone? Short of using torture Iâ??d say they canâ??t.
fyodor: â?¦ there’s implications for immigration policy
yeah, but that doesnâ??t really effect our citizens does it? I was asking the other day, what if you are a Muslim, and you have 4 wives and you immigrate to the U.S.
â?¦ do they make you get rid of at least 3 wives?
fyodor: â?¦ for inheritance
Inheritance is actually settled by a will. Only when the individual dies without a will is the right of the spouse invoked.
fyodor: â?¦ for health benefits, both directly as given out by the government and indirectly when a business accepts the government’s definition of marriage rather than go through the cumbersome task of treating each case individually.
I am tempted to tease you for trying to link health insurance to marriage. ;)
fyodor: I should hasten to add that even if you were to argue and I were to agree that the government should not be involved in some of these activities to begin with, sometimes you have to deal with the situation as it is rather than as you wish it would be.
I agree this is a valid point. And that is why I am saying that since there is no clear constitutional guarantee for homosexual marriage the only other recourse is majority rule.
fyodor: As far as the Judiciary’s ability to interpret laws, I cannot tell if you’re addressing what I mean by judicial review. I am talking about the ability of a court to invalidate a law’s provisions based on its unconstitionality.
oops, my bad. That is different then what I was talking about, but it is somewhat analogous.
fyodor: This goes beyond simply interpreting or applying a law in a specific situation. I despair that believing in such puts so much power in the hand of so few robes, but I believe it is an indispensable part of our checks and balances nevertheless. Anyway, not only does the belief in judicial review reside in others besides atheists, but there’s likely a majority of Americans who join in that belief, even if it results in the majority’s desires getting overridden at times.
I disagree with your last statement.
Look, the Judiciary, and to some extent as a nation, we tend to look upon the Constitution as a semi-divine document. Itâ??s â??perfectâ?, it is â??infallibleâ? … figuratively speaking anyway. Every once in a while a case comes up where the specific situation would seem to indicate that perhaps there is a conflict between a given Law and the Constitution. Except the constitution supercedes ANY other law we make, so no law can be in conflict with (in violation of) the Constitution. So the Supreme Court (or the 9th circuit) overturns the law.
Now here is the thing. Do you think that when the founders signed the Constitution that they thought Marriage was not constitutional unless â??homosexual marriagesâ? were also legal? What part of the constitution implies a right to homosexuality any more than a right to polygamy, or bestiality, or incest?
If there is no compelling argument that homosexuality is a constitutional right then why circumvent the will of the majority by claiming that there is?
The problem is that the minority wants to have its way regardless of what the constitution or the majority have to say. But when the minority can have its way over the objections of the majority then you have truly entered a slippery slope, because once the minority can force its will on the majority then it is obvious the minority can control the majority. And that is the opposite of a Democracy.
“The problem is that the minority wants to have its way regardless of what the constitution or the majority have to say.”
This is the art of framing one’s opponents’ argument in a reprehensible light. Why not accept that there are those who honestly and sincerely consider state marriage licensing practices to be discriminatroy and in violation of the Equal Protection clause of the 14th Amendment and therefore an injustice? I’ve heard good arguments on both sides and am not sure where I stand on the issue myself. I would leave it to those who believe in that position more wholeheartedly to argue with you over it. But I do take issue with your ad hominen framing of the issue.
As for being forced to testify, I’m no lawyer, but I believe you can be held in contempt of court for refusing to testify, which can land you in jail. True, no one can literally force you to do anything without putting electrodes in your brain or some such, but that doesn’t mean there’s not different consequences for those who are or aren’t married for refusing to testify.
Immigration. Sigh. Non-citizens have rights, and if they don’t enjoy the full protection of the constitution, that doesn’t mean I shouldn’t give a damn what happens to them.
Inheritance. You admit that people without a will are affected by inheritance laws. So you agree with me on that point? Or do the willless count as little as noncitizens?
Health insurance. Sorry, I don’t get the joke.
Back to judicial review, I don’t think it necessarily holds that the framers of the constitution had to think something was unconstitutional for it to be valid for a court to declare it so now. I think it is possible that the framers setup a system of principles that they did not always follow or recognize the implications of themselves. That is why I think flag burning is protected speech even though the framers probably didn’t think so. That’s not to say the constitution can mean anything. I would only want judges who believe in applying the principles expressed in the words of the constitution, not just their own personal preferences. But that doesn’t mean that judges need to be restricted in their applications to the ways the framers would have chosen.
Of course, I’m sure you disagree with that. Better minds than either yours or mine have carried this argument to much greater and more involved lengths than I certainly want to here.
Serpent (previously: The problem is that the minority wants to have its way regardless of what the constitution or the majority have to say.
fyodor: This is the art of framing one’s opponents’ argument in a reprehensible light. Why not accept that there are those who honestly and sincerely consider state marriage licensing practices to be discriminatory and in violation of the Equal Protection clause of the 14th Amendment and therefore an injustice?
Explain how the law is unfair to homosexuals? Considering there is NO LAW that says homosexuals canâ??t marry?!?!
fyodor: I’ve heard good arguments on both sides and am not sure where I stand on the issue myself. I would leave it to those who believe in that position more wholeheartedly to argue with you over it. But I do take issue with your ad hominen framing of the issue.
fyodor my friend I am not trying to make ANY ad hominem attacks on you, and if you perceived that I was then you have my sincere apologies. I admit that sometimes I can get carried away with my sarcasm, but I didn’t mean to direct any of it towards you specifically.
I have said it before, and I will say it again, I have no beef with homosexuals, but we arenâ??t really discussing homosexuality. What we are discussing here is whether our societyâ??s goals are determined by what the majority thinks is True, or by what the minority thinks is True. In other words, Do we make the Laws, or do the laws make Us?
fyodor: As for being forced to testify, I’m no lawyer, but I believe you can be held in contempt of court for refusing to testify, which can land you in jail. True, no one can literally force you to do anything without putting electrodes in your brain or some such, but that doesn’t mean there’s not different consequences for those who are or aren’t married for refusing to testify.
Actually I believe that in most instances a wife can be â??forcedâ? to testify anyway. In any event I think this is a pretty scant line of reasoning for defying the will of the majority over homosexual marriages.
fyodor: Inheritance. You admit that people without a will are affected by inheritance laws. So you agree with me on that point? Or do the will-less count as little as non-citizens?
My point was that inheritance and marriage are only an issue for people who are too lazy to make out a will. Now, in a way you have a point, and it is not that I consider will-less individuals non-citizens, it is more like you are asking me if I feel sorry for the grasshopper from that fable about the ant and the grasshopper and I am telling you that I donâ??t really feel sorry for the grasshopper.
fyodor: Back to judicial review, I don’t think it necessarily holds that the framers of the constitution had to think something was unconstitutional for it to be valid for a court to declare it so now.
I agree.
fyodor: I think it is possible that the framers setup a system of principles that they did not always follow or recognize the implications of themselves.
I agree.
fyodor: That is why I think flag burning is protected speech even though the framers probably didn’t think so.
We are still in agreement.
fyodor: That’s not to say the constitution can mean anything.
I concur.
fyodor: I would only want judges who believe in applying the principles expressed in the words of the constitution, not just their own personal preferences.
I would say that a good judge is someone fanatically dedicated to the principles of logic. A good judge needs to be more like a computer program than what we normally consider a â??Manâ?.
fyodor: But that doesn’t mean that judges need to be restricted in their applications to the ways the framers would have chosen.
I agree. In a way I think that the framers (Jefferson in particular) were even more far-seeing than they realized when they created the constitution.
fyodor: Of course, I’m sure you disagree with that. Better minds than either yours or mine have carried this argument to much greater and more involved lengths than I certainly want to here.
You are a good-guy in my book fyodor. Donâ??t believe that we cannot have some disagreements and yet still maintain respect for each other my friend. Good discussion. :)
As I watch this discussion, I’m wondering why people who seem to have libertarian leanings are discussing this as a majority/minority issue. To paraphrase Johan Norberg, democracy often boils down to being the equivalent of two wolves and a sheep deciding what to have for dinner.
Relying on a majority vote (or more plausibly perceived majority consensus) does not change the fact that laws which violate rights are fundamentally illegitimate absent unanimous consent. And as Randy Barnett said recently, “In the absence of actual consent then, every freedom restricting law must be scrutinized to see if it is necessary to protect the rights of others without improperly violating the rights of those whose freedom is being restricted.” That is what makes law-making legitimate and “binding in conscience.”
So there is no right to gay marriage–fine. But similarly there is no right to straight marriage except insofar as marriage is a voluntary association, a legally binding contract.
To allow (or to recognize) straight marriage contracts but not gay ones clearly “improperly violates the rights of those whose freedom is being restricted,” that is, homosexual partners who which to enter into legally binding unions.
They are not free to have their contracts recognized by the government in the same manner as straight couples, which seems like a fairly cut and dry violation of section 1 of the Fourteenth Amendment.
And there are indeed 37 states that have “Defense of Marriage” laws that allow states not to recognize gay unions legally sanctioned in other states while at the same time recognizing straight unions–how is this not a violation of the equal protection clause?
Brooke Oberwetter: As I watch this discussion, I’m wondering why people who seem to have libertarian leanings are discussing this as a majority/minority issue. To paraphrase Johan Norberg, democracy often boils down to being the equivalent of two wolves and a sheep deciding what to have for dinner.
Unless you can indicate the precise article of the Constitution that clearly indicates â??homosexual marriageâ? is a fundamental right, then how can this be anything other than a minority/majority issue?
Or have the Atheists given up all pretense that the United States is a Democracy?
Brooke Oberwetter: Relying on a majority vote (or more plausibly perceived majority consensus) does not change the fact that laws which violate rights are fundamentally illegitimate absent unanimous consent.
Illegitimate by what authority or by what logic Ms. Oberwtter? If a right is not enumerated specifically in the Constitution, then it must be made a right by due process. You canâ??t simply declare that your whims are fundamental and inalienable rights.
Brooke Oberwetter: And as Randy Barnett said recently, “In the absence of actual consent then, every freedom restricting law must be scrutinized to see if it is necessary to protect the rights of others without improperly violating the rights of those whose freedom is being restricted.” That is what makes law-making legitimate and “binding in conscience.”
Okay, so the â??rightsâ? of sheep-humpers are being violated by virtue of the fact that sheep-humpers arenâ??t allowed to marry sheep. Are you suggesting that â??bestiality marriagesâ? are now a national priority? Or how about Polygamist? At least polygamy has a long and cherished history. There are actual Religions (congress shall pass no laws prohibiting the free exercise of Religion) of which polygamy is a legitimate and time-honored tradition. Clearly the laws against polygamy are more of a threat to our rights than the laws against â??homosexual marriageâ?.
Brooke Oberwetter: So there is no right to gay marriage–fine. But similarly there is no right to straight marriage except insofar as marriage is a voluntary association, a legally binding contract.
I could agree completely if you had cut off the last part and just said: marriage is a voluntary association.
Brooke Oberwetter: To allow (or to recognize) straight marriage contracts but not gay ones clearly “improperly violates the rights of those whose freedom is being restricted,” that is, homosexual partners who which [wish?] to enter into legally binding unions.
And homosexuals can enter into legally binding unions. They can either:
A) Marry anyone they wish (so long as that person is not the same gender (which is exactly the same rule for everyone)), or
B) They can enter into other forms of legally binding contracts which fulfill the exact same function and purpose of a marriage contract, or
C) They can convince a majority of their fellow citizens that it is wrong to prohibit homosexuals from marrying each other and have the law changed via democratic means!
Brooke Oberwetter: They are not free to have their contracts recognized by the government in the same manner as straight couples, which seems like a fairly cut and dry violation of section 1 of the Fourteenth Amendment.
That is NOT true. Homosexuals are entitled to marry under the same rules and guidelines as heterosexuals â?? thatâ??s equal protection. What you want is â??special protectionâ?.
Why canâ??t sheep-humpers marry who they want? Why arenâ??t their rights covered under the 14th amendment? How about incest between consenting adults?
Brooke Oberwetter: And there are indeed 37 states that have “Defense of Marriage” laws that allow states not to recognize gay unions legally sanctioned in other states while at the same time recognizing straight unions–how is this not a violation of the equal protection clause?
Hey, if a Muslim immigrates to this country with his 4 wives he is forced to give up at least 3 of them. Why are you worried about equal protection when we donâ??t even have freedom of religion?
If you want to start passing new laws and new rights without the consent of the governed then one day what is to stop a different minority of religious fanatics from decreeing their own set of â??morally superior valuesâ? as inalienable rights?
You had better be careful Darling or you really are going to find yourself in a burka.
Sheep humping is a stupid analogy because I think most reasonable people recognize that a sheep is in no condition to give consent and is similarly not able to enter into the voluntary contract that is marriage–so without getting into a discussion on beastiality, I think we can rule that particular argument out, since at the heart of this matter is consenting adults.
I didn’t claim that gay marriage was a “fundamental or inalienable right.” In fact, I claimed quite the opposite–that neither gay nor straight marriage was a guaranteed right. What I did claim is that both gay and straight marriages are rights insomuch as they are voluntary associations entered into by way of a legally binding contract. Gender as a determinant of which contracts are recognized by the government and which are not is therefore a violation of equal protection.
You are effectively limiting who can enter into contracts that will be recognized. Asking that all marriage contracts be recognized equally regardless of the gender of the participants isn’t “special” protection.
Again, while I find polygamy and incest icky to a great extreme, I have trouble saying that I think they should be banned between consenting adults. I’m all for the Muslim guy bringing all four of his wives, so long as the four wives consented to be married to the man.
I’m not suggesting new laws or new rights by any stretch of the imagination–I’m suggesting that existing rights (voluntary association) be protected (recognized by the state equally), and that laws which prohibit such protection (a “one man one woman” amendment and “Defense of Marriage laws”) are illegitimate.
(Though I don’t agree with Mr. Barnett on many things, his theory of Constitutional legitimacy is one that I agree with–you can find it here.
Brooke,
I would ask if it is acceptable for the minority to force a change in the mind of the majority regarding marriage and family, then why is it unacceptable for the majority to force a change in the mind of the minority regarding homosexuality and family?
You are confusing persuasion and force. I’m all for persuasion. But when you have unequal protection under the law, it isn’t really a question of persuading the minority that it’s okay that they’re being unequally protected, unless you can persuade them to unanimously consent to giving up that protection, which you can’t.
Your question is essentially meaningless in this context. I’m finished discussing this matter.
Brooke Oberwetter: You are confusing persuasion and force. I’m all for persuasion.
Actually, if you could persuade the majority that â??gay marriageâ? was beneficial then you would have no need to decree it by judicial fiat, and we wouldnâ??t be having this discussion/debate.
But when a judge decrees the law without majority consent and that law is backed up by the force of the government, then you are not persuading people that your opinion is best, but forcing them to accept your opinion is best.
Brooke Oberwetter: But when you have unequal protection under the law, it isn’t really a question of persuading the minority that it’s okay that they’re being unequally protected, unless you can persuade them to unanimously consent to giving up that protection, which you can’t.
You havenâ??t really been arguing â??unequal protectionâ? though. As best I can tell you have been arguing that â??gay marriageâ? is the right thing to do on moral/humanistic grounds.
I havenâ??t seen one clear-cut argument that conclusively demonstrates why â??gay marriageâ? is a constitutionally mandated right however. In fact I have pointed out (more than once) I donâ??t see how anyone could claim that â??gay marriageâ? was a constitutional (equally protected) right moreso than say â?¦ polygamy. But for some strange reason I donâ??t see any movement claiming that legalized polygamy is a sudden national priority???
Brooke Oberwetter: Your question is essentially meaningless in this context. I’m finished discussing this matter.
Ohhh I disagree. I would say that my question cuts to the heart of the matter. The moment you allow a minority to force its will upon the majority aside from fundamental rights addressed by the Constitution itself you open the door to allow ANY minority to subvert the will of the people to its own will in the future.
Today you force the â??stupidâ? and â??biasedâ?, â??inferiorâ? majority to accept that â??gay marriageâ? is the same as a heterosexual marriage. Tomorrow you force them to accept that some animals are more equal than others, and in a few years WALAH â?¦ youâ??ll look soooo cute in a Burka. ;)