Why Am I Against Gay Marriage?

[Daniel2]

Darin claims to be a "nonparticipant" concerned about "equal rights" and "justice."

I'm not sure what you mean by "support" but I'm not sure Darin's support was any greater than mnn727's. Perhaps you know: did Darin do anything more in support of anti-Prop 8 than merely post his opinions about equal rights on the MA&DB?

When I used "non-participant," I am referring to individuals who do not participate in the violent and/or illegal acts (such as vandalism or defacing others' property) towards those who oppose Prop 8. I have participated in other peaceful, legal protests.

Thanks for the opportunity to clarify.

Darin

[Daniel2]

Can I ask you some questions Darin:

Why limit it to mere couples? If me and my consenting two girlfriends want to marry . . . is that any different than the "consensual couple" who are gay? Is there no equality, justice and common humanity for we three as well?

Also, what if the "consenual couple" is composed of two siblings? Is there no equality, justice and common humanity for them? What if the "consenual couple" is a father/son pair? Mother/daughter pair? Can they marry too? Shouldn't they enjoy "civil rights" as well?

I'm happy to answer your questions: Yes, I support those who feel that marriage equality should extend to polygamous families, and have no moral objections towards marriage between family members, with the standard for ALL marriages (woman-man; woman-woman; man-man; mulitple spouses) requiring consent--that is, marriage participants must be conscious (self-aware and self-determining) adults (of legal age to enter into civil contracts). It seems fair to project that multiple spouses would require additional considerations (both for benefits and for assurances to avoid "double-dipping") when it came time to consider taxation, insurance, and the like.

Gay and lesbians are not the first group to seek marriage equality (interracial couples paved the way before us, challenging the restrictions to only marry within one's race), nor will gays and lesbians be the last. It seems every generation discovers a new minority group that needs to answer whether or not equality should be applicable for it's individuals, and each must fail or succeed on it's own merits (similarities or differences).

My view,

Darin

[CMZ]

You are right about moderating the "radical fringe."

I apologize for my tone in response to Darin's defense of the SSM arguments.

I am an attorney whose practice consists of a signicant amount of civil rights law. I cringe that the SSM defenders call their cause a civil rights and equality issue, and I think such word play cheapens the genuine injustices inflicted upon racial, religious and ethnic minorities through the history of the United States.

Well, I do see where you are coming from and do hope the moderate gays can have some rational influence on the radical ones. I also don't think the SSM one is a civil rights issue just as many blacks don't.

[markwhannig]

I'm happy to answer your questions: Yes, I support those who feel that marriage equality should extend to polygamous families, and have no moral objections towards marriage between family members, with the standard for ALL marriages (woman-man; woman-woman; man-man; mulitple spouses) requiring consent--that is, marriage participants must be conscious (self-aware and self-determining) adults (of legal age to enter into civil contracts). It seems fair to project that multiple spouses would require additional considerations (both for benefits and for assurances to avoid "double-dipping") when it came time to consider taxation, insurance, and the like.

Gay and lesbians are not the first group to seek marriage equality (interracial couples paved the way before us, challenging the restrictions to only marry within one's race), nor will gays and lesbians be the last. It seems every generation discovers a new minority group that needs to answer whether or not equality should be applicable for it's individuals, and each must fail or succeed on it's own merits (similarities or differences).

My view,

Darin

Darin:

I commend you for your consistency.

I'm very new to the SSM discussion -- and have a promised conversation with fellow MA&DB contributor Honorentheos about Jonathan Rauch's article defending SSM entitled "What Friedrich Hayek can teach us about gay marriage" in the June 2004 issue of reasononline. Honorentheos pointed it out to me.

So I take it that your concern is not fundamentally SSM -- its about allowing anyone to marry any consenting individual. Do I understand you correctly? (Yes, I recognize "consent" to mean of age, and mental capactity, etc.)

Correct me if I'm wrong, but your view is that anyone should be able to marry anyone (consent assumed.) No?

Put another way, the state should recognize any consenual relationship as qualifying for a marriage license. No?

Respectfully,

Mark Hannig

[Daniel2]

Thanks, Mark.

So I take it that your concern is not fundamentally SSM -- its about allowing anyone to marry any consenting individual. Do I understand you correctly? (Yes, I recognize "consent" to mean of age, and mental capactity, etc.)

My support for the current gay marriage movement is that the gender of two spouses seeking civil marriage should not be limited by the state, similar to how support for the interracial marriage movement was that the race of two spouses seeking civil marriage should not be limited by the state, in that movement.

I believe that plural marriage needs to be approached as a seperate issue, since it deals with it's own unique legal challenges of balancing the principles of civil equality, while simultaneously increasing the quantity of spouses in a marital relationship [hence my previous comment that "It seems fair to project that multiple spouses would require additional considerations (both for benefits and for assurances to avoid "double-dipping") when it came time to consider taxation, insurance, and the like."] I think further civil investigation into the unique challenges and legal responsabilities of multiple spouses would need to be explored, if/when this particular social movement gains momentum (as I believe it eventually will).

Having qualified the above civil distinctions which may affect plural marriages, the motivations underlying my libertarian-based approach for marriage equality are in keeping with the principles that "consenting adults should be able to marry anyone they wish" and "the state should recognize any consensual relationship as qualifying for a marriage license."

My view,

Darin

[annewandering]

Thanks, Mark.

My support for the current gay marriage movement is that the gender of two spouses seeking civil marriage should not be limited by the state, similar to how support for the interracial marriage movement was that the race of two spouses seeking civil marriage should not be limited by the state, in that movement.

I believe that plural marriage needs to be approached as a seperate issue, since it deals with it's own unique legal challenges of balancing the principles of civil equality, while simultaneously increasing the quantity of spouses in a marital relationship [hence my previous comment that "It seems fair to project that multiple spouses would require additional considerations (both for benefits and for assurances to avoid "double-dipping") when it came time to consider taxation, insurance, and the like."] I think further civil investigation into the unique challenges and legal responsabilities of multiple spouses would need to be explored, if/when this particular social movement gains momentum (as I believe it eventually will).

Having qualified the above civil distinctions which may affect plural marriages, the motivations underlying my libertarian-based approach for marriage equality are in keeping with the principles that "consenting adults should be able to marry anyone they wish" and "the state should recognize any consensual relationship as qualifying for a marriage license."

My view,

Darin

so you think its fair to deny children their parents legally if it means they might get legal rights? just becaused there are more than two parents? and its fair to deny second, third, etc wives equal rights because they are demanding more than their fair share of rights in a marriage?

dont you feel a little hypocritical in this?

[Confidential Informant]

I am still amazed at how willfully some of you people misrepresent the legal arguments here.

First of all, marriage -- of any sort -- is not a "civil right." None of us, heterosexual or homsexual, have a right to a civil marriage. As I've noted before, if any state wanted to get out of the marriage business, it could do so tomorrow, and there is nothing any of us, hetero or homo, could do about it. If marriage were truly a "civil right" then the State could not legally cease the practice.

However, no state has chosen to do so up to this point. Thus, the question is, if the state is going to offer civil marriage, who has a right to it?

As I've noted before, this is the same question that has been asked with dozens of other state programs, including welfare, etc.

The fact is that not everybody qualifies for certain programs and the government has the right to draw distinctions between who qualifes and who doesn't, and as long as those distinctions are rationally related to the furtherance of the public policy the program is designed to benefit, then that distinction is completely legal.

The whole question of "equality", or more specifially, "marriage equality", is a complete red herring. To claim equality, you have to be similarly situated, and as I've pointed out a hundrend times on this list, gays are not similarly situated to heteros. They just aren't. Period. There are substantive, unalterable difference between a same sex couple and a heterocouple which simply make the two completely unalike, and therefore, not equal.

The exact same logic pertains in every other program. For example, I don't quaify for welfare benefits because I make too much money. Of course, that line of demarcation is completely random. The legislature picked a number and said "anyone who makes more than is is inelibible."

I can't claim welfare benefits under equal protection, because I'm not equal to that family living on the other side of the tracks. They may may have six kids just like me, they all go to school, just like me, hell, they may even live in a house, just like me, but we find ourselves on opposite sides of the line that that state set, and since that line represents a rational demarcation which furthers the purpose of the program (alievating poverty), I don't qualify because that family and my family simply aren't "similary situated."

And of the last time, stop citing the Loving decision as helpful to the same sex cause. It's not, and you know it. The miscegenation laws of the past century were based on a benign physical characteristic (color/race), not on a behavior. The fact is that preventing blacks and whites from marrying did nothing to further the public polices that civil marriage was meant to advance. Since it wasn't rationally related, it had to fall.

A race based prohibition is totally different than a procreational one. You can kick and scream all you want, but the fact is that Loving doesn't advance your cause.

C.I.

[Daniel2]

so you think its fair to deny children their parents legally if it means they might get legal rights? just becaused there are more than two parents? and its fair to deny second, third, etc wives equal rights because they are demanding more than their fair share of rights in a marriage?

dont you feel a little hypocritical in this?

I'm not sure I follow, Anne. How would I be "denying childen their parents legally if it means they might get legal rights? just because there are more than two parents?" Can you elaborate?

As for "its fair to deny second, third, etc wives equal rights because they are demanding more than their fair share of rights in a marriage?", I don't follow what you mean here, either.

If you could help me understand by explaining a bit more, I will try and answer your questions.

Thanks,

Darin

[Daniel2]

I am still amazed at how willfully some of you people misrepresent the legal arguments here.

First of all, marriage -- of any sort -- is not a "civil right." None of us, heterosexual or homsexual, have a right to a civil marriage. As I've noted before, if any state wanted to get out of the marriage business, it could do so tomorrow, and there is nothing any of us, hetero or homo, could do about it. If marriage were truly a "civil right" then the State could not legally cease the practice.

However, no state has chosen to do so up to this point. Thus, the question is, if the state is going to offer civil marriage, who has a right to it?

As I've noted before, this is the same question that has been asked with dozens of other state programs, including welfare, etc.

The fact is that not everybody qualifies for certain programs and the government has the right to draw distinctions between who qualifes and who doesn't, and as long as those distinctions are rationally related to the furtherance of the public policy the program is designed to benefit, then that distinction is completely legal.

The whole question of "equality", or more specifially, "marriage equality", is a complete red herring. To claim equality, you have to be similarly situated, and as I've pointed out a hundrend times on this list, gays are not similarly situated to heteros. They just aren't. Period. There are substantive, unalterable difference between a same sex couple and a heterocouple which simply make the two completely unalike, and therefore, not equal.

The exact same logic pertains in every other program. For example, I don't quaify for welfare benefits because I make too much money. Of course, that line of demarcation is completely random. The legislature picked a number and said "anyone who makes more than is is inelibible."

I can't claim welfare benefits under equal protection, because I'm not equal to that family living on the other side of the tracks. They may may have six kids just like me, they all go to school, just like me, hell, they may even live in a house, just like me, but we find ourselves on opposite sides of the line that that state set, and since that line represents a rational demarcation which furthers the purpose of the program (alievating poverty), I don't qualify because that family and my family simply aren't "similary situated."

And of the last time, stop citing the Loving decision as helpful to the same sex cause. It's not, and you know it. The miscegenation laws of the past century were based on a benign physical characteristic (color/race), not on a behavior. The fact is that preventing blacks and whites from marrying did nothing to further the public polices that civil marriage was meant to advance. Since it wasn't rationally related, it had to fall.

A race based prohibition is totally different than a procreational one. You can kick and scream all you want, but the fact is that Loving doesn't advance your cause.

C.I.

Hey. C.I.,

I can appreciate that you and I disagree on whether or not Loving is applicable to or advances the cause of marriage equality for gay and lesbian couples. But I cannot see how you can make black and white, summary dismissals such as "marriage is NOT a civil right" or that Loving doesn't influence current, changing attitudes towards gay marriage.

In the case of Loving vs. Virginia (click here for the full text) the Supreme Court of the United States unequivocally states that:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Of course, at the time of that ruling, the Supreme Court was only referring to civil marriage rights for heterosexual couples. Even so, "civil marriage" is NOT the "state program" (such as welfare) that you keep trying to equate it with.

At the very least, it would seem you would need to admit that there are many legal experts (including, among others, the Supreme Courts of Massachussetts, California, and Connecticut) that explicitly disagree with you about the applicability and influence of the Loving decision on "the right of civil marriage" for gay and lesbian couples. At BEST, that issue is not as settled as you seem to insist it is. Yet I cannot understand how you can continue to claim that Loving somehow does NOT clarify that "Marriage is one of the "basic civil rights of man," and not some "state program."

For those wishing to read further:

The MA Supreme Court's Decision

The CA Supreme Court's Decision

The CT Supreme Court's Decision

Darin

[Confidential Informant]

I can appreciate that you and I disagree on whether or not marriage is a civil right, and whether or not Loving advances the cause of marriage equality for gay and lesbian couples.

But I cannot see how you can make black and white, summary dismissals such as "marriage is NOT a civil right"

Then you don't understand the nature of what is a "civil right." A "civil right" is one that the government cannot take away, under anything but the most egregious of circumstances. For example, the government cannot take away your right to vote (unless you commit certain felonies). The government cannot limit your right to travel, except under certain circumstances (quarantines). The government can never dictate what relgion you can join, etc.

However, as I noted, the government can abolish civil marriage for all people at any time. Just as it could do away with the welfare system, social security, tax breaks, etc. Thus, the very fact that it can be done away obviates the claim that is a "civil right."

or that Loving doesn't influence current, changing attitudes towards gay marriage.

The only way Loving can be used to further same sex marriages is if you deliberately misread the underlying facts of the case, the public policy in question, and ends which the anti-misigenation laws were meant to achieve. The law in Loving was irrational because the purpose of civil marriage is to encourage procreation and a mixed race couple can procreate just as well as a same-race couple. Thus, the benefit to the state from a mixed race coupleing was/is the exact same as that from a same race relationship.

But as you know, that benefit does not accrue in a same sex couple. Thus, the line drawn between same sex and heterosexual couples is rational and reasonable.

At the very least, it would seem you would need to admit that there are many legal experts (including, among others, the Supreme Courts of Massachussetts, California, and Connecticut) that explicitly disagree with you on both counts.

If you expect me to give much credence to those court cases, don't hold your breath. From a legal standpoint, they are atrocious in their legal reasoning. I mean, let's face, do you really think that John Adams had same sex marriages in mind when he drafted the Massachussett's equal protection clause? The only way you get to where MA got is by totally jettisoning the original intent of the document's drafters and substituting your own intent. And that's what they did.

And have noticed that in every single case you've cited, it's been a split decison by the court? In fact, not one has been unanimous, or even overwhelming, which means that not even all of the judges in those states were convinced.

At BEST, these two issues are not as settled as you seem to insist that they are.

In every state except three, this has been rejected (four if you want to count New Jersey). There is no momentum in your favor and, in fact, for most courts, from a legal standpoint, the issue is, indeed, settled. Now, if you want to get there legislatively, be my guest. You know that I've always stated that any state that want's to do can so. But the claim that a state legally mandated to recognize same sex marriages has been pretty completely rejected, even in very liberal states like New York and Washington. I guarantee you that the federal courts aren't going to touch it, and they don't have to because the precedent is already in place.

For those wishing to read further:

The MA Supreme Court's Decision

The CA Supreme Court's Decision

The CT Supreme Court's Decision

Darin

Funny how you failed to include the decision from New York Washington, Arizona, Florida and the U.S. Supreme Court.

C.I.

[markwhannig]

Then you don't understand the nature of what is a "civil right." A "civil right" is one that the government cannot take away, under anything but the most egregious of circumstances. For example, the government cannot take away your right to vote (unless you commit certain felonies). The government cannot limit your right to travel, except under certain circumstances (quarantines). The government can never dictate what relgion you can join, etc.

However, as I noted, the government can abolish civil marriage for all people at any time. Just as it could do away with the welfare system, social security, tax breaks, etc. Thus, the very fact that it can be done away obviates the claim that is a "civil right."

C.I.

CI & Darin:

Would the Loving decision be consistent with this statement: Marriage is a basic right so that the government can not prevent you from getting married, whether or not the government chooses to regulate marriage.

Put another way: marriage is a civil-right, but state-recognized marriage is not. The government can not stop a SSM couple from peforming a marriage ceremony (and last I heard SSM marriage ceremonies can happen in every state within the US.) However, a state-recognized marriage is a mere government program, that the state can choose to implement, or not. And the state can choose to draw the parameters of who qualifies for the state-run program.

So basically there are two types of marriages: your inherent right to marry marriage on one hand; and the state's marriage-program marriage on the other hand.

Does that reconcile your two positions?

Also, does the Loving decision, or any other court decision that ya'll know of, distinquish between between the civil right to marry and the state-run marriage program?

BTW, thanks for the case citiations. (I am a very recent student to the SSM issue, and I'm just learning. I have yet to read on the case law out there.)

Respectfully,

Mark Hannig

[Daniel2]

A "civil right" is one that the government cannot take away, under anything but the most egregious of circumstances. For example, the government cannot take away your right to vote (unless you commit certain felonies). The government cannot limit your right to travel, except under certain circumstances (quarantines). The government can never dictate what relgion you can join, etc.

I agree with everything pertaining to how a "civil right" is defined, according to your description above. Not sure why you don't think I understand what a "civil right" is.

However, as I noted, the government can abolish civil marriage for all people at any time. Just as it could do away with the welfare system, social security, tax breaks, etc. Thus, the very fact that it can be done away obviates the claim that is a "civil right."

Can you share the supporting information upon which you make your claim that "the government can abolish civil marriage for all people at any time"? Upon what precident do you base this on?

How do you reconcile your statement of "[your belief that civil marriage] can be done away obviates the claim that it is a 'civil right'" with the explicit ruling of the United States Supreme Court that "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival"...? How can you avoid the understanding that marriage is NOT a "state program," but has explicit words enumerating it as "one of the basic civil rights" by the U.S. Supreme Court...? Seriously. I have NO idea how you reconcile your beliefs of the "state program" allegation with the undisputed "civil right" enumeration.

The only way Loving can be used to further same sex marriages is if you deliberately misread the underlying facts of the case, the public policy in question, and ends which the anti-misigenation laws were meant to achieve.

OK... now were are getting to the heart of trying to clarify the "Is Loving influential on gay marriage rulings?" aspect. You claim that I am "deliberately misreading the underlying facts of the case." I am acknowledging (and have been acknowledging) that Loving was referring to "the civil right of marriage" being recognized for consenting heterosexual couples. I think I have been clear on that point. YOU argue that the ruling shouldn't be applicable to provide marriage equality for gay and lesbian couples. I am stating that the majority opinions of the three Supreme Courts that HAVE found a constitutional "right to marry" for gay couples disagree with you. You claim their interpretation and application is faulty. Other State Supreme Courts, in their rulings, have agreed with you. Clearly, I side with those Supreme Courts who find aspects of Loving to be relevant (in fact, CA's Supreme Court even references Loving as being influential in their decision). Here are the parts that I find, in the very least, relevent and influential (though not explicitly endorsing marriage for gay and lesbian couples):

There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These convictions must be reversed.

You disagree. I get that. But it's a stretch to say "I'm wrong, and you're right." I don't even say that... I recognize that this is a matter of changing opinion, and it will be a decade or two before the vast majority of people changes their minds--just as it took time with the defeat of anti-Miscegenation laws.

The law in Loving was irrational because the purpose of civil marriage is to encourage procreation and a mixed race couple can procreate just as well as a same-race couple. Thus, the benefit to the state from a mixed race coupleing was/is the exact same as that from a same race relationship.

I understand that, if you were sitting on the Supreme Court, YOU'D find "procreation" to be a vital component of marriage, and that the judges back in the day of the ruling of Loving would probably have agreed with you. Times--and interpretations of "rights" and words such as "marriage" change. That is the beauty of our system of goverment--which provides means for new interpretations, emerging understanding, previously-unavailable knowledge--to be discovered, measured, weighed, and judged upon. That is THE reason we HAVE courts--to interpret the law--because humanity and our understanding are NOT static.

But as you know, that benefit does not accrue in a same sex couple. Thus, the line drawn between same sex and heterosexual couples is rational and reasonable.

In your mind, it is. Not in mine.

If you expect me to give much credence to those court cases, don't hold your breath. From a legal standpoint, they are atrocious in their legal reasoning. I mean, let's face, do you really think that John Adams had same sex marriages in mind when he drafted the Massachussett's equal protection clause? The only way you get to where MA got is by totally jettisoning the original intent of the document's drafters and substituting your own intent. And that's what they did.

Of course I don't expect you to give much credence to the court cases I quoted--you disagree with at least one of the premises upon which they are based; that marriage is one of the basic civil rights of man, independant of the biological viability of the reproductive systems of the individuals being married. I don't. And that's OK. That's how social change happens. From a TRADITIONAL standpoint, the rulings are atrocious in their legal reasoning. From a legal standpoint, they are pretty comprehensive and sound, in my opinion.

Of COURSE John Adams didn't have same-sex marriage in mind when he drafted Massachussett's equal protection clause. The founders of our nation were neither omniscient nor prophetic--but they WERE enlightened, forward-thinking men of their time. There have been a whole host of legal issues that Adams and his contemporaries couldn't have guessed at--cell research, for example, or a myriad of other previously unknowable things. Again, that is the beauty of the system of government that the framers of our Constitution and United States created--an elastic system that was capable of growing, shrinking, changing, and rising to meet the demands of the contemporary issues of each new age. There have been many rulings on rights since John Adams' time. I believe he would be proud to see the durability, longevity, flexability, and inclusivity of his forward-thinking system of government "at work."

More later,

Darin

[Daniel2]

The only way you get to where MA got is by totally jettisoning the original intent of the document's drafters and substituting your own intent. And that's what they did.

I don't believe that I or any of the more experienced Supreme Court Justices of three states "totally jettisoned" the original intent of the doctument's drafters, substituting "our own" intent. Rather, the Supreme Court Justices have done their collective jobs by interpreting the constitutionality of law according to our current understanding (in fact, I'm not sure on the matter, but my guess is that few-to-none of the judges are actually gay or lesbian, themselves).

And have noticed that in every single case you've cited, it's been a split decison by the court? In fact, not one has been unanimous, or even overwhelming, which means that not even all of the judges in those states were convinced.

Again, of course I've noticed that in all three cases, equality has passed by a slim majority, thereby illustrating that the cases have not been won unanimously, nor that all of the judges have been convinced.

It is very apparent, however, that more and more state-wide votes by citizens--and a growing number of State legislatures, entities, and Supreme courts--are favoring the applicability of civil marriage equality for gay and lesbian couples, very much in keeping with principles similar to those by which Loving removed legal restrictions on marriage rights for interracial couples.

Are judges and their rulings always immune to the contemporary, discriminatory paradigms of their day? Is there morality ever "off"...? To know, we need look no further than the events leading up to Loving vs. Virgina, when on January 6, 1959, the trial judge who bannished Mr. and Mrs. Loving from the state of Virginia for 25 years, stated from the bench his opinion that:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

This type of social change--of one step forward, two steps back--is how humanity evolves; "line upon line, precept upon precept," being lifted here a little, and there a little. I believe that to be a beautiful, though sometimes sluggishly painful, process.

In every state except three, this has been rejected (four if you want to count New Jersey).

Even your words above indicate the growing acceptance that change is coming.

There is no momentum in your favor and, in fact, for most courts, from a legal standpoint, the issue is, indeed, settled.

No amount of kicking and screaming that the issue is, indeed, legally settled will change the reality of ongoing change, itself. A Supreme Court ruling--even a Federal one--does not always signify "the end" of an issue. The growing unrest in California after Prop 8 heralds the changing winds of that momentum.

I am reminded of the bold vision of Joseph Smith:

the Standard of Truth has been erected; no unhallowed hand can stop the work from progressing; persecutions may rage, mobs may combine, armies may assemble, calumny may defame, but the truth of God will go forth boldly, nobly, and independent, till it has penetrated every continent, visited every clime, swept every country, and sounded in every ear, till the purposes of God shall be accomplished, and the Great Jehovah shall say the work is done. (History of the Church 4:540)

Great quote. Even if (as Wade will no doubt jump at pointing out) your "up" is my "down," and vice-versa.

Now, if you want to get there legislatively, be my guest.

Equality will happen in a variety of ways, in a multitude of 'tracks.' Some will occure through the legislature; some through judicial means. I expect the final pronouncement will eventually be at the Federal Supreme Court level.

You know that I've always stated that any state that want's to do can so. But the claim that a state legally mandated to recognize same sex marriages has been pretty completely rejected, even in very liberal states like New York and Washington. I guarantee you that the federal courts aren't going to touch it, and they don't have to because the precedent is already in place.

I believe you're right in that the Federal courts won't touch it... for a little while. Eventually, they will. In the case of Loving, it took the Federal Supreme Court ten years to take up the case after California's Supreme Court already had. Back then, Gallop polls showed that 72% of the people rejected interracial marriage--a far greater percentage than reject gay marriage, today.

Funny how you failed to include the decision from New York Washington, Arizona, Florida and the U.S. Supreme Court.

Given that I have consistently acknowledged that only three courts have so-far passed marriage equality, I don't find it unusual that I would have referenced only those three. You are more than welcome to share the links by other courts, as well, should you wish--including links to previously-acknowledged, dissenting court rulings from other states doesn't alter my position.

My view,

Darin

[Honorentheos]

The Loving vs. Virginia ruling is also indicative of how religious marriage practice and belief would be impacted by legislation of this nature regarding civil marriage.

Ultimately, I find it troubling that some here have declared they jumped off of the fence based on the (quite probably criminal) actions of some individuals while feeling no need to leave the fence when the question was whether or not there was an issue of injustice at the highest levels. Have we become so weak of character that when a question of whether or not our government is not living up to it's own ideals is brought before us we respond with a resounding, "Why bother?", yet when a few hooligans pick up bricks to smash windows we go for our bats to file into the streets to oppose them?

[Daniel2]

Ultimately, I find it troubling that some here have declared they jumped off of the fence based on the (quite probably criminal) actions of some individuals while feeling no need to leave the fence when the question was whether or not there was an issue of injustice at the highest levels. Have we become so weak of character that when a question of whether or not our government is not living up to it's own ideals is brought before us we respond with a resounding, "Why bother?", yet when a few hooligans pick up bricks to smash windows we go for our bats to file into the streets to oppose them?

This is a great point, Honorentheos. So much so, I'm going to quote you in another thread that is currently being discussed to which your comment is very relevant.

Thanks,

Darin

[mnn727]

Ultimately, I find it troubling that some here have declared they jumped off of the fence based on the (quite probably criminal) actions of some individuals while feeling no need to leave the fence when the question was whether or not there was an issue of injustice at the highest levels. Have we become so weak of character that when a question of whether or not our government is not living up to it's own ideals is brought before us we respond with a resounding, "Why bother?", yet when a few hooligans pick up bricks to smash windows we go for our bats to file into the streets to oppose them?

Once again, it was not the illegal activities of a few rotten apples that made me 'jump the fence' a closer reading of mine and others posts will show that.

[Daniel2]

While I find it regrettable to be so, I can understand that the protests galvanized some Latter-day Saints (who may have felt ambivilent prior to the vote) to support Prop 8, just as the Affirmation rep suggested in the article quoted at the beginning of this thread.

Some pertinent data:

Here Are The Results of SurveyUSA News Poll #14909

Geography Surveyed: California

Data Collected: 11/19/2008

Release Date: 11/19/2008 4:55 PM ET

Sponsor: KFSN-TV Fresno

1 Asked of 500 Adults

Margin of Sampling Error for this question =

[Confidential Informant]

I agree with everything pertaining to how a "civil right" is defined, according to your description above. Not sure why you don't think I understand what a "civil right" is.

The very fact that you are applying it to marriage implies that you don't understand it.

Can you share the supporting information upon which you make your claim that "the government can abolish civil marriage for all people at any time"? Upon what precident do you base this on?

Let me reverse the question. Do you believe that the government is required to offer state sanctioned relationships as a part of its "package" of benefits (as it were).

In Utah, Marriage is governed by UCA 30-1-(1)-(30). To do away with "civil marriage," the only thing the state would have to do is abolish title 30. Having done that, do you think that I, as a married straight man, have the right to sue to the state to re-establish that code section? Do you, as a gay man, have that right?

The answer is, clearly, no. If a state no longer wishes to sanction civil marriages, if it no longer wishes to grant tax breaks and financial subsidies, and other favorable treatment on two people who have decided to live together, then none of us can stop the state from doing that. If the state comes out and says that Judges, Justices of the Peace, etc., may no longer perform marriage ceremonies and are stripped of authority to officate at such, what could we do about it?

Nothing. Having the state sanction your marriage is not a "civil right."

How do you reconcile your statement of "[your belief that civil marriage] can be done away obviates the claim that it is a 'civil right'" with the explicit ruling of the United States Supreme Court that "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival"...?

In what way is "marriage" "fundamental to our very existence and survival?" You realize, of course, that it is that very language which negates homosexual claims to a right to marriage? It is fundamental to our survival because it through heterosexual marriage that procreation takes place.

What the Supreme Court has found is that the right to pair off into couples for purpose of forming a family until is a "civil right." That same right was found for gays in Lawrence v. Texas. What it does not mean is that there is some "right" to have the government sanction our relationships and provide us with the panolply of benefits that have traditionally accompanied it. I have no "right" to file my taxes jointly. I have no "right" to a child tax credit.

How can you avoid the understanding that marriage is NOT a "state program," but has explicit words enumerating it as "one of the basic civil rights" by the U.S. Supreme Court...? Seriously. I have NO idea how you reconcile your beliefs of the "state program" allegation with the undisputed "civil right" enumeration.

Obviously, my argument bothers you, but it's not contradictory to what the USSC has said.

OK... now were are getting to the heart of trying to clarify the "Is Loving influential on gay marriage rulings?" aspect. You claim that I am "deliberately misreading the underlying facts of the case." I am acknowledging (and have been acknowledging) that Loving was referring to "the civil right of marriage" being recognized for consenting heterosexual couples. I think I have been clear on that point. YOU argue that the ruling shouldn't be applicable to provide marriage equality for gay and lesbian couples. I am stating that the majority opinions of the three Supreme Courts that HAVE found a constitutional "right to marry" for gay couples disagree with you.

Yes, they have. But to do so, they have been force to abandon all pretense of any structured, consistent system for statutory construction and interpretation. Those decision have been "outcome based" in that the court knew what decision it wanted to make, then twisted the law to get there. It's not uncommon. It happens all the time, especially in very liberal courts. They ignore the decades old precedent and tests which have repeatedly been used to determine when a claim right actually exists. In fact, they go out of their way to avoid that analysis. It represent poor lawyering and the worst sort of jurisprudence.

You claim their interpretation and application is faulty. Other State Supreme Courts, in their rulings, have agreed with you. Clearly, I side with those Supreme Courts who find aspects of Loving to be relevant (in fact, CA's Supreme Court even references Loving as being influential in their decision).

Which simply shows how shallow the opinion actually is.

Here are the parts that I find, in the very least, relevent and influential (though not explicitly endorsing marriage for gay and lesbian couples): You disagree. I get that. But it's a stretch to say "I'm wrong, and you're right." I don't even say that... I recognize that this is a matter of changing opinion, and it will be a decade or two before the vast majority of people changes their minds--just as it took time with the defeat of anti-Miscegenation laws.

I think you wrong. I think you've already hit the tipping point. The U.S. is far too religiously inclined for your side of the argument to ever get more than 49-50% support. Like I've said before, you are eventually going to get a half a dozen to a dozen states that will sanction it, the rest will not. Again, that's not an unusual occurance. Lots of things are legal in some states that are illegal in others.

I understand that, if you were sitting on the Supreme Court, YOU'D find "procreation" to be a vital component of marriage, and that the judges back in the day of the ruling of Loving would probably have agreed with you.

I'm sorry, but procreation is the lynchpin of the Loving decision. You quoted it yourself: "fundamental to our survival." That can only be referring to procreation.

Times--and interpretations of "rights" and words such as "marriage" change.

Which is exactl why your side of the debate is so desperately trying to unhitch procreation from marriage. But if you do that, you destroy the whole reason why civil marriage even exists, thus it becomes a nullity and you will have defeated your own purpose (which is exactly what many gay activists have claimed is their goal).

That is the beauty of our system of goverment--which provides means for new interpretations, emerging understanding, previously-unavailable knowledge--to be discovered, measured, weighed, and judged upon. That is THE reason we HAVE courts--to interpret the law--because humanity and our understanding are NOT static.

Right, and the Constitution has a mechanism for accomodating this. It's called an amendment. If you want a constitutional right to same sex marriage, then call each state to a constitutional convention and get the requisit amout of states to sign on.

Of course I don't expect you to give much credence to the court cases I quoted--you disagree with at least one of the premises upon which they are based; that marriage is one of the basic civil rights of man, independant of the biological viability of the reproductive systems of the individuals being married.

Your problem is that premise is hard to argue against. You can't really argue that the state can't do away with civil marriages. Again, doing so has been a big part of many of the arguments made by your side of the debate.

From a TRADITIONAL standpoint, the rulings are atrocious in their legal reasoning. From a legal standpoint, they are pretty comprehensive and sound, in my opinion.

And of course you, with all your legal training, have a sound basis for making that judgement.

Of COURSE John Adams didn't have same-sex marriage in mind when he drafted Massachussett's equal protection clause. The founders of our nation were neither omniscient nor prophetic--but they WERE enlightened, forward-thinking men of their time. There have been a whole host of legal issues that Adams and his contemporaries couldn't have guessed at--cell research, for example, or a myriad of other previously unknowable things.

Is there a "civil right" to stem cell research? Again, I agree they were prescient, that's why every constitution has an amendment process, JUST LIKE THE ONE USED IN CALIFORNIA!

Again, that is the beauty of the system of government that the framers of our Constitution and United States created--an elastic system that was capable of growing, shrinking, changing, and rising to meet the demands of the contemporary issues of each new age.

Ah yes, the "living constitution", which is really no constitution at all.

C.I.

[Honorentheos]

CI -

The last anti-miscegenation amendment was removed from the Alabama State Constitution in 2000 - about 33 years after the USSC ruled on Loving vs. Virginia.

Clearly, the idea of checks and balances must pertain to ways that wide-spread- majority accepted and state upheld- injustices can be overcome and removed from systematic governmental recognition before there is a majority of people willing to accept the nature of the injustice in question.

Under your definition as well, the "right to vote" that you listed is not a civil right. While the US constitution gives certain parameters thought which Representative are to be chosen "by the people", the states reserve the right as set by precedent, to limit or redefine who these people may be. Both are, under your example, under the same protection or endangerment depending on the view you wish to take.

The right to vote and the notion of civil marriage both are derived from British jurisprudence and are founded on the same principals. Abolish one, all others lose their foundation as well.

[Boniface]

How are yu gonna explain to your 5 year old child why "Joe" and "Joe" whom live togeher down the street, are also legally married? Thats what this is all about in its entirety; Moral decline.

I'd rather explain to my child that Joe and Joe love eachother and are able to live in a country where they are free to express that love in the eyes of the law.

Seriously, I believe that homosexual activity is a sin just as much as anyone else, but I have several good friends who are gay. I've talked with them, enjoyed their company, and my girlfriend and I have even gone on double-dates with gay couples. Perhaps it's a sin, but after watching them together and listening to their emotion as they talk about their partner and how they feel - I can't deny for one second that their love is real.

Unfortunately, we live in a world where it is just best to tell your child the truth...if you feel prompted, you can even explain why you believe that "Joe and Joe" are living a life of sin. But seriously, someday your 5 year old is going to be 25. It's better that he know the realities of society now rather than be the 25 year old goof that still thinks there is a Santa Claus/Tooth-Ferry.

[J.S. Mill]

J.S. Mill: Good luck getting into law school, and good luck practicing the legal profession thereafter. I look forward to reading your posts a few years from now when you have graduated from law school, and after you have practiced law (to include arguing before a judge, or a panel of judges.) I suspect, and hope, your rhetoric and logic skills will have matured by then. Respectfully, Mark Hannig

That's not a good enough excuse to not engage my posts, especially when what I'm saying is in complete accordance with the statements of people like these.

P.S. If you want to compare logic skills, we could always compare LSAT scores.

[Anijen]

That's not a good enough excuse to not engage my posts, especially when what I'm saying is in complete accordance with the statements of people like these.

P.S. If you want to compare logic skills, we could always compare LSAT scores.

Ill take that LSAT bet.

[J.S. Mill]

That was specifically for Mark, because he impugned my reasoning skills. If you want in on the pissing contest, I think that's a little weird, but... whatever, PM me.

[markwhannig]

That was specifically for Mark, because he impugned my reasoning skills. If you want in on the pissing contest, I think that's a little weird, but... whatever, PM me.

J.S. Mill:

Like Anijen, I would take the LSAT bet, but I'd have to do some work to find my LSAT results from years ago, and I'm not apt to determine that it's worth the trouble -- they're out in the garage in a box of old papers somewhere.

J.S. Mill, I like you deep down. It's just that your posts read like a college kid. Actually, you remind me of myself when I was 20 years old or so . . . cocksure but seemingly lacking real-world experience. Of course, I don't know you, and who knows, maybe you have more life experience than anyone else on this board.

I was sincere when I wrote that I look forward to reading your future posts. I'm sure you'll do fine in law school -- I wish you the best. I do believe that you will experience something that we've all experienced: what we thought we knew going into law school and what we think we understand while in the ivory tower, often turns out to be quite different than what we actually know once we hit the streets of the legal world.

Regarding logic . . . it's such a small part of persuasive reasoning.

I have one suggestion going into law school: get active in Toastmasters. We all can use the help on our public speaking. Also, regular public speaking (to include persuasive speech projects) helps us to understand that true persuasion requires logic, rhetoric and grammer -- and often logic is the least important of the three. Although we in the law might pride ourselves in logical analysis, we come to realize that what really moves people is a real good story.

J.S. Mill -- I have confidence you can tell some good stories.

Respectfully,

Mark Hannig

[J.S. Mill]

Mark, your point about there being more to persuasion than pure logic is well-taken. I hope you'd agree, though, that whatever other rhetorical tools might aid in the persuasiveness of an argument, logic is the only one that can actually make an argument sound. If you were wondering why I try to put such an emphasis on reasoning in my posts here, that's it.

I'd also like to defend myself a little here, by pointing out that I don't think I know everything -- I just think I know enough to rebut some of the transparently awful legal arguments that have been made in this thread and others regarding Prop. 8.

Of course, I don't know you, and who knows, maybe you have more life experience than anyone else on this board.

My life history is pretty interesting, actually.