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The War Over Gay Marriage Thread

Discussion in 'Political Conversation and Debate' started by Bucklion, Jul 27, 2004.

  1. Buckeyeskickbuttocks

    Buckeyeskickbuttocks Z --> Z^2 + c Staff Member

    FWIW - I have changed my mind re: the structual validity of the majority argument in Hernandez. However, that does not mean I adopt it's rationale as itself sound. What I mean is, having now read the actual opinion, and not just the cite BrutuS gave us, I now understand what the Court was trying to say better.

    For example, on Gov't. interest: There is a legit interest in promoting Child Welfare. The Legislature of NY is free to determine that marriage between a man and a woman endorses said welfare - it doesn't matter if there are other ways, or even better ways. I still believe they overlooked the word "serves" in light of the recognition that Homosexual unions provide stability in terms of a conscious decision to raise a child, and the 'rational implications' of that fact.. But, regardless, the interest is still "served" consistent with itself. Said more simply, to encourage marriage, we encourage stability for the children. I don't think that is disputed.

    So, this contention is sound in terms of rational basis, structurally.

    However, I agree with the dissent that the majority framed the issue too narrowly and without proper deference to the who's been excluded and under what rationale. (and again, didn't properly analyze "serves" with repsect to it's rationality considering the things accepted facutally). As stated by the dissent (and noted by Thomps):
    Ultimately it comes down to identification of the class protections which should be afforded. If Homosexuals are a "suspect class," then, Homosexuals are:
    So, rather than comparing race to sexuality as we've been doing, to establish similarity or dissimilarity, let's focus instead on the law which concerns the establishment of the nature of a class and it's subsequent protections. (I should note, I would still make the comparisions to race if this was an issue I was acutally arguing about in front of a Court. But, the truth is, it's more of a "piling on" argument, and one I had hoped would strike a chord with people since we can all well evaluate our own selves to determine if what I say re: sexual attraction is true or not...)

    We have not reached an agreement, I don't think, on the defining charecteristic between gays and straights, but I hope you agree we can settle on "Sexual Preference." Gays prefer same sex partners, straights, opposite sexed partners. Fair?

    Now then...

    In determining the nature of the protections which should be extend towards a class, we should consider 3 elements of the class at issue:
    1 - Has the group been subjected to purposesful discrimination?
    Yes. I think it's easily supported that Gays have been so subjected historically, anti-sodomy laws, for example... which have been ruled unconstitutional now.

    2 - Consideration of if the trait which creates the difference (define the class) renders class members unable to participate in society.
    As I argued pages ago, what we do in the bed room, and with whom, has nothing to do with our ability to participate in society, and I don't think anyone on this thread has seriously argued that Gays are unable to perform beneficial societal deeds, like serving in the military, being lawyers, doctors, etc..

    3 - Accouting of the groups relative political powerlessness -
    Clearly Gays are a minority.

    All three elements met, the group is a "suspect" class and afforded a heightened scrutiny.

    What is your retort?
    Last edited: Jun 7, 2007
  2. Gatorubet

    Gatorubet Banned

    While I don't disagree, it seems to me that a challange based purely on gender - a man can marry a woman, but a woman cannnot marry a woman - would invoke the use of middle tier analysis, i.e., why can't a woman marry a woman?

    Better yet, have two woman attempt to get married for the partner's health benefits, etc, and remove the sexual act equation entirely. It seems to me it would force an examination under traditional gender analysis, and the government could not come up with important governmental objectives substantially related to achievement of those objectives as it relates to a denial of same sex marriage. Anything to get out of a "rational" crap shoot.
  3. Buckeyeskickbuttocks

    Buckeyeskickbuttocks Z --> Z^2 + c Staff Member

    Such an argument is viable, and I think strong. It was rejected in Hernandez. Maybe after this particular line runs, we can explore that? Or... hell, we can explore it now.. though I'm gonna wait til BrutuS offers a response to the elements outlined above.
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  5. Gatorubet

    Gatorubet Banned

    Hernandez contains this language:

    "By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and men are treated alike?they are permitted to marry people of the opposite sex, but not people of their own sex...."

    "We resolve this question in this case on the basis of the Supreme Court's observation that no more than rational basis scrutiny is generally appropriate "where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement" (Cleburne v Cleburne Living Center, Inc., 473 US 432, 441 [1985]). Perhaps that principle would lead us to apply heightened scrutiny to sexual preference discrimination in some cases, but not where we review legislation governing marriage and family relationships. A person's preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State's interest in fostering relationships that will serve children best. In this area, therefore, we conclude that rational basis scrutiny is appropriate."

    Why won't they let you marry this girl again? Oh. Because you're a girl! And they say that it is not gender based discrimination! Sloppy thinking, at best. And they seem to say what Brutus does, that the state can deny you marriage because of reproductive capabilities, notwithstanding the granting of same to non-reproductive straights. Seems to me to be very suspect logic that will be reviewed in later cases and reversed.
  6. sandgk

    sandgk Watson, Crick & A Twist

    To my mind there is a lot of dancing around the real issues when language such as that in Hernandez is used to defend a decision, a decision that should not have been made in the first place.

    As far as I am concerned there are one of two real goals when any State precludes granting some type of matrimonially based rights to gays, two - period.

    The first goal is fiscal exposure. This is precisely because of the financial implications of the added burden to the Federal and various State Governments if recognition of such unions was made - made on a par with heterosexual marriages. No moral, reproductive or even moral judgements come to bear on that stance. Yet, in the mealy mouthed language of these court decisions (both pro and con) that is exactly the kind of BS which is dished up. So, if the fear is that you cannot construct a recognition of the union in manner that meets the desires of those gays who want to marry, without exposing the State, or business to added fiscal burdens then simply be honest - say so.

    The second reason is because there really are politicians out there who claim to be unprejudiced, yet truly despise gay people and wish to prevent them from ever feeling that they are a part of society. Again, if that is your position then be honest about it. Don't tart up your pig with mealy mouthed bs about reproductive rights, fostering relationships and the like. Simply say out loud that as a politician you are against gay rights.

    Oh, yes, I said that decisions of the type above should never have been reached. Why would I say that? Precisely because it wreaks of the type of intellectual dishonesty I point out in the above two paragraphs.
  7. BrutuStrength

    BrutuStrength It's time to bring it! Staff Member

    First, please allow me to aplogize for the delayed response, but I had a 3-day weekend with the family.
    Well, we saw in Lawrence v Texas that while the law was overturned, it never concluded that homosexuality was a suspect class. Additionally, Occonor's concurrence stated that a "law limiting marriage to heterosexual couples would pass the rational scrutiny as long as it was designed to preserve traditional marriage, and not simply based on the state's dislike of homosexual persons."

    Furthermore, the example that you've provided for discrimination against homosexuals didn't deny them the ability to vote, to get an education, to ride on the front of the bus, or to own land, as has occurred to other suspect classes in the past. It merely denied them the specific ability to perform certain sex acts with other members of the same sex.

    So has there been some discrimination against homosexuals? Yes. Has the discrimination been at the same level as an existing suspect class such as race (slavery) or that of a quasi-suspect class such as gender (couldn't vote)? No.

    It remains that we cannot simply identify which people are homosexual, heterosexual, bisexual, or even asexual based on how they look, their DNA, the color of their skin, their gender, their nationality, etc. What we can do, however, is identify which individuals engage in homosexual, heterosexual, bisexual, and asexual activities. Thus, it's the sexual activities each person engages in that identifies them with regard to their sexual preferences, not the other way around. Basically, if someone doesn't tell us they are gay, we don't know that they are. That means that the determination for people that follow under any such "class" (hetero, homo, bi, etc.) is only truly known to each individual.

    So, going back to what I've stated numerous times before, all people presently have the same opportunity to be married in the eyes of the gov't and receive all associated benefits and obligations provided they marry someone of the opposite sex.

    So if marriage is specifically defined as being between 1 man and 1 woman, is such a rule "grossly unfair?" I don't think so. Again, it's available to everyone. Also, unmarried people, gay or straight, by choice or by circumstance, are not discriminated against for not being married. They can still vote, ride on the front of the bus, etc. They are not expressly denied any actual "rights."

    Okay, so they are a minority. So are people that are color-blind. About 5% of males are color-blind (same general percentage as homosexual population). I'm sure we can come up with many different minority groups if we try.

    In truth, however, they are not powerless. Simply being labeled a minority does not mean that such a group is inherently powerless. As it is, homosexuals have a very well funded political lobby. Additionally, they are in no such similar powerlessness as african-americans encountered in the US during slavery and segregation. As they are free to live their lives, vote, get an education, run for political office, etc. As far as I know, a white gay male landowner has always been able to vote in the US.

    Again, comparing discrimination based on race (where people had no freedoms and were literally bought and sold as another man's property) and sexual preference (where people have been kicked out of the Army and been prevented from having legal sexual encounters) isn't really comparable.

    Well, first I'd point out that out of those 3 elements, only 1 or 2 appear to carry any weight (they certainly aren't powerless), and the weight they carry appears minimal, as pointed out above. Secondly, I'd ask why only three elements?

    As I have reviewed "suspect class" this morning, it appears that being such would also require a 4th element: which would be an "immutable characteristic" (such as race or national origin). Hence, if homosexuality is any part not based on "being hardwired," and rather it were to include any amount of choice/option, then it doesn't fit.
    Not subject or susceptible to change.

    And as we've seen, what you've put forth is that
    So even if you feel that it is "most cases," then it isn't truly immutable, as that requires "being gay" to be a constant. Also, as opposed to being born a race or a gender, those are not born as such merely in "most cases," rather they are a constant. Rather a man is always born a man, woman a woman, and hermaphrodite a hermaphrodite. There's no "sometimes" being born a man/woman/hermaphrodite at a biological level. Same thing with race, a person is definitively born as being black, white, asian, hispanic, bi-racial, etc. There's no allowance as to "sometimes."

    Additionally, a person that is bi-racial (50% white and 50% black for purposes of illustration) cannot choose to be white 75% of the time and black the other 25% of the time, or even choose to be 75% white and 25% black. They are always 50/50. Conversely, a person considered to be evenly bi-sexual with each preference at 50% levels could live their life as 100% straight or 100% gay, or they could engage in hetero relationships 35% of the time and gay relationships the other 65%.

    There are also people that claim to be former homosexuals that have changed to heterosexuals (which flatly rules out any possibility of immutability if true). We can also see that regarding sexual orientation, the American Academy of Pediatrics has stated "Sexual orientation probably is not determined by any one factor but by a combination of genetic, hormonal, and environmental influences." Therefore, it seems, your claim/theory as to such conditions being immutable isn't correct. So you can agree or disagree with these other theories all you like, but even using your own words, we see that sexual preference/orientation isn't immutable.

    I read somewhere today that if all 4 elements aren't present, then it doesn't qualify as a "suspect class." So, based on my text above, I basically don't see how that can apply in this case. I do understand, however, that it still might qualify as a "quasi suspect class," such as gender. I'm curious to know then as to how many it needs for that. If it needs 3, then I think it falls short, since it doesn't appear to cover the immutable trait and powerlessness aspects. I don't know think it would pass the test for even 2 such elements, since the discrimination that may have existed was far from the absence of rights previously faced by those of racial or gender inequalities.
  8. Gatorubet

    Gatorubet Banned

    That was why I wanted any example of how such a law would in fact "preserve" traditional marriage. As it is the state's burdon to do so, I cannot think of one example where a gay person would now think: "Well, I can't get married - I guess I'll become hetero..." Nor would anyone decide to dump their fiance and "go gay" just because the law was changed to allow gay marriage.
  9. Gatorubet

    Gatorubet Banned

    Separate but equal.....yeah - that's the ticket!!
  10. Gatorubet

    Gatorubet Banned

    I don't think it will either. But I think that it is impossible to articulate a rational reason for the law making it impossible to get married to the same sex. You can say "to protect traditional marriage", but where it all falls down is you can't get anyone to actually show a true nexus to any alleged benefit to it, although lip service under many theories are trotted out.

    I see it as more of a societal issue. Eventually people no longer became revulsed by having to drink out of the same water fountain as blacks. When gays hit that level of acceptance, then it will be a "duh" moment in a court case, and nobody will object as much as now.
  11. BrutuStrength

    BrutuStrength It's time to bring it! Staff Member

    I was thinking of this issue as it relates to Goodridge. I'd have to read through the ruling, but that, as I understand it is the only ruling on this issue that has applied such verbiage. On it's face value, I see it is a flaw in the view of the court, that could possibly view hetero and homo relationships as being fundamentally equal for the many reasons I've previously listed.
    Separate but equal was implemented to help eliminate disparities between otherwise identical people (men are men, 2 legs, 2 arms, etc.) So it truly was applied at the level of the individual. IMO, in Goodridge they misapplied the interpretation to cover relationships rather than the actual people themselves. So if we know that hetero and homo relationships are inherently/fundamentally different, than we have separate relationships to begin with, so separate but equal would in effect be proper procedure since they are indeed separate to begin with. This of course goes back to the Baker ruling.
  12. Buckeyeskickbuttocks

    Buckeyeskickbuttocks Z --> Z^2 + c Staff Member

    Brutus, I'm on Vacation at the moment and won't get in to it right now, but will try and address your post more in depth upon my return to CBus.

    I should say "powerlessness" isn't as absolute as you seem to make it. It's not as if Blacks were powerless when the "suspect class" test was formulated. Anyway, assuming I remember, more later. Suffice to say, while your argument is what it is, much like my own, it's certainly not definitive.
  13. BrutuStrength

    BrutuStrength It's time to bring it! Staff Member

    A rational reason or rational basis?

    A simple rational reason is intellectual honesty. By simply being able to refer to each type of relationship we are able to recognize the inherent distinctions that exist amongst such relationships. Quite simply it would be nice if in the middle of a friendly conversation with a coworker concerning each other's family life and marital status, it would be nice to know if the person were married to someone of the opposite sex, or if they were united with a same-sex partner simply by them stating their marital relationship.

    You also have around some 70%+ of the US population that are in favor of protecting marriage as being between a man and a woman.
    I disagree in that I believe there are a number of rational arguments that could be presented. One being the interest of children. Sort of how the Hernandez ruling stated that children are better off with stable relationships, so promoting and incentivizing those relationships amongst hetero couples provides stability to those children.

    Not so much needed in homo relationships, since such relationships with children are, for lack of a better term, manufactured, and can never include more than one biological parent. Additionally, the hetero relationships also provide role modelling from both sexes. I'd think we can all agree that stability for children is good thing especially when it includes proper role modelling.

    If you're looking for specific studies showing the above to be a good thing, then I'm sure you can easily find them via the search engine of your choice.

    I don't. While acceptance of such relationships are growing, I believe there will always be a significant majority of the population that will always appreciate the distinction. Many will simply never see the need to identically label such different relationships, even if they should be provided identical benefits/obligations.
  14. Manfred

    Manfred Sweatervest Samurai

    You are actually making a strong argument for not allowing people of different race to marry or procreate. We have the word "miscegenation" to establish that one's marriage is between people of different race. Do you feel that in your friendly conversation with a coworker, you should be able to determine if they are mixing their blood with that of another race? Of course not. (I hope.) And just to make you feel better, you should know that the word "wife" or "husband" helps key you in. The gay couples I know don't hide the gender of their partners. If they do try to keep it a secret and make you feel uncomfortable about assuming incorrectly, it's not because they're gay. It's because they're assholes.

    Let's consider the pain felt by the first black students who had to be bused in to white neighborhoods after Brown vs. the Board of Education. No doubt, those children were resented by everyone around them and had to suffer a great deal for the greater good. By your argument, we would have kept education segregated for the purpose of saving those children. However, sometimes, for the bigger good, we need to make these large, challenging steps. You are making a small argument for children while ignoring the wonderful homes that gay couples can provide for the millions and millions of orphans that need them. Plus, once people become comfortable with gay marriage, this will not be an issue. The proof of this is the fact that the presence of black students in largely white schools does not draw riots anymore.

    IMHO, divorce hurts the institution of marriage much more than gay marriage. The notion of "till death do we part" is a beautiful commitment that should be made between two people who love one another and wish to be inseparable forever. Shouldn't we be up in arms about the people who get married and divorced multiple times? Aren't they doing more than anyone else (even more than homosexuals who love one another) to weaken the sacrament of marriage?
  15. methomps

    methomps an imbecility, a stupidity without name

    Again, this is completely missing the point. Providing marriage rights does promote the "interest of children." Nobody disputes that. The question is, "Does denying marriage rights to homosexual couples promote the interest of children?" That is the heart of equal protection analysis, and you and the NY court are getting it backwards.

    When we're asking about what interest is served, we're asking what interest is served by the discrimination, not by the benefit.

    There was a case in Oklahoma that challenged the validity of a law that said that males had to be at least 21 to buy 3.2 percent beer, but females could buy the beer once they turned 18. By rough analogy, your argument for the law tracks a lot with this: "The benefit from denying males the right to buy this beer before 21 is to limit drunk driving fatalities. Women don't drive as much, so there is less need to ban them from buying the beer."

    Like your argument, this argument misses the question. There is no doubt that denying males the right to buy the beer before 21 serves an interest in preventing drunk driving. However, discriminating between men and women in this regard does not further that interest.

    It's about the discrimination, not the benefit.
  16. BrutuStrength

    BrutuStrength It's time to bring it! Staff Member

    I'm doing no such thing. Marriage identifies the type of relationship as being between a man and woman (at least outside of your state). It has no bearing on on any such participant at the level of the individual. Calling it a Civil Union would merely distinguish that the relationship itself contains members of the same sex.

    If civil unions were available, it would not mean that such participants were automatically homosexual (just as marriage doesn't automatically mean that both participants are straight, it just means they entered into the relationship with another individual that happens to be of the opposite sex), as two same-sex people could be united simply to take advantage of the benefits/obligations of such a gov't recognized relationship.

    That may well be. In truth, I don't really care. I was simply offering a simple example as to how distinguishing the separate relationships wouldn't even require to additionally mention the title of the partner as that would already be conferred by the term used to describe their relationship.

    Again, you try to twist my intent. I'm not ignoring any wonderful homes as you claim, rather I'm seeking to allow them to be fully celebrated using a title for their relationships that fairly, and clearly represents them.

    Why are you opposed to distinguishing between different relationships? How is doing so intellectually honest?

    We're not discussing the "sacrament of marriage" here, we're discussing how marriage is/should be viewed in the eyes of the gov't. I don't care about divorce with regards as to this discussion unless you want to more properly tie it into the discussion, such as "what should we call divorces for couples that want to end their civil unions (if they're iplemented)?" or such.

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