Over the weekend, the NYT reported on an interesting development: Attorneys General from other states are asking the California Supreme Court to stay implementation of its decision legalizing gay marriage.
In a letter to the court’s chief justice, Ronald George, the attorneys general — all Republicans — asked that the marriages be put off until after the November election, when California voters are expected to vote on a measure that would ban same-sex marriages.Though I doubt this sort of intervention in another state's legal proceedings is unprecedented -- state legal proceedings can often affect the legal interests of other states -- it is certainly rare, particularly on an issue like this.The attorneys general said that allowing same-sex marriages now could unnecessarily open the door to legal challenges from gay residents of other states who get married in California. Upon returning to their home states, the newlyweds could demand equality in everything from tax-filing status to testimonial privileges in civil suits, the attorneys general said.
“Absent a stay of the mandate in this case, that number will certainly be very large indeed,” Mark L. Shurtleff, the Utah attorney general, wrote on behalf of the group in a letter delivered on Thursday and released publicly on Friday. “And unnecessarily so if a majority of California’s voters favor in November the proposed ballot measure.”
The state AGs' intervention underscores that the California decision could have national consequences. Assuming the decision is allowed to take effect, it won't be long before there are legal challenges to other states' refusal to recognize gay marriages performed in California, and then only a matter of time before someone makes a federal case of it.
Related Posts (on one page):
- California Supreme Court unanimously denies stay in gay-marriage case:
- Other States Intervene in California Marriage Case:
- Gordian Knots, polyamory, polygamy, and tsunamis across the country:
@corneille1640: One of the concurring judges wrote separately to discuss that point, and I didn't find it particularly convincing. No matter how hard they're denying it, it sure looks to me like the California Supreme Court overruled their earlier ruling, making all those San Francisco marriages valid again.
Back on topic: Is it just me or isn't this a particularly convincing argument? Presumably the California Supreme Court is going to consider such law suits a good thing, or at least irrelevant?
The updated summary of the proposed amendment on the California Secretary of State website says that it will retroactively void benefits on registered domestic partners, but it does not address how it will affect same sex marriages that may exist at the time. Here is the relevant part of the summary:
I think it would have to be retroactive with regarding to marriages, because each time a same sex couple, for example, files a joint California tax return, the tax authority will have to determine whether or not to recognize the marriage. If the amendment passes, then the tax authority will determine that it cannot recognize the marriage.
I wonder what is the purpose of the part about "prohibit[ing] decreasing marriage rights."
PS: Doesn't DOMA forclose the possibility of making a federal case out of this?
Those California's supreme court judges are definitely insane when they have authorized illegal ways of procreation.
Lior: Someone could sue, claiming DOMA is unconstitutional (such a suit was already decided in favor of the defendant in District Court - Wilson v. Ake)
That could be a violation of the federal constitutional right to the freedom of contract, as well as a deprivation of property without due process or compensation.
Not particularly surprising. In Michigan for example they claimed it was JUST about banning gay marriage, not civil unions or other state recognized relationships. Then, when the amendment passed they sued Eastern Michigan University and other state schools that offered employees in same sex relationships the same benefits married couples had.
You're right. I did not realize there were two proposed amendments. Sorry for the confusion.
I think either of the proposed amendments would be retroactive.
Big difference: my initiatives (where possible) have preambles and non-incorporated text (that is, text which is not included in the constitutional amendment itself) to aid reviewing courts, which was greatly appreciated by the Florida Supreme Court; the Calif proposal, like many drafted by those who don't have to actually defend them in court, is sparse, and contains no aid to a reviewing court. Initiative drafting is always a fight between the legal and political arms. The political side always wants it short, because otherwise the voters will find something not to love about it. But if a longer text is done clearly and correctly, the voters will figure it out, and it really helps with later courts. To paraphrase Justice Scalia's new book: be clear; that's most important. You don't have to have short paragraphs; judges know how to read long paragraphs.
I wouldn't go that far, but they are certainly admitting that Full Faith and Credit could trump DOMA. It will all come back to whether a marriage license is a "public act, record, or judicial proceeding" of a state.
If they both qualify, the one which seeks to overturn domestic partnerships as well goes down in flames, but the one which overturns gay marriage probably passes.
Even if true that married couples have a right to procreate and hence to cloning -- wouldn't that same principle apply to opposite sex married couples too? or at least the infertile ones? Don't they have a right to clone some children? Surely the right to clone is not limited to same sex couples.
Um, I may not be very bright, but isn't marriage license a public act, a record, and a judicial proceeding of a state? How would one argue otherwise?
Same way that concealed carry licenses aren't considered such. It's the courts -- if it made sense, they'd put future lawyers out of work.
In addition to the question of what is and isn't covered by the FFAC clause, there's also been a public policy exception used in the past.
OP
Not too impressed by the attorney general's argument here. I don't think gay marriage was a good idea or that the court case was well decided, but infringing a right because someone might vote to overturn it in the future is a very bad precedent to put forward.
yes, that is exactly right after gay relationship has been equalized with marriage opposite sex couples have a right for cloning as well as
That is point I am trying to make, Supreme Court judges in Clifornia somehow allowed illegal cloning. Marriage in California suppposed to be an opposite sex relationship, so there was no contradiction with federal ban on cloning. Before legalization of gay-marriage married couples had a right to participate in procreation process while married. From now on gays according to california's law can participate in procreation process also, and as you know procreation process for gays is cloning.
Yep, but it has nothing to do with right for couples to procreate while married.
That should be interesting reading.
Not necessarily. A litigant in another state could argue that under STATE rules of comity (and STATE constitutional provisions, such as equal protection provisions), the California SSM should be recognized.
DOMA does not say that the States cannot recognize others States' SSM's, merely that they don't have to. There are still plenty of state-law arguments to be made.
I'm not sure that's a convincing argument.
Though I admit that they have a point. Allowing certain marriages for a few months and then rescinding them, or even simply dissallowing further such unions, does indeed pose a number of complicated problems.
There is a currently on the ballot a proposed Constitutional amendment which would in effect overturn the CA Sup. Ct.'s ruling. So the ruling may in less than a year be overturned by the voters -- much less than it takes to, say, appeal from a lower court to the Supremes.
Whether one agrees or disagrees with the ruling, no one can deny that it is a major change from the prior law, with major administrative costs. To implement these only to have the ruling reversed in a few months (and then have to deal with issues of retroactivity, etc.) is a major headache which the AGs are trying to avoid.
The request is akin to asking the appellate division to stay a ruling pending appeal to the Supreme Court -- something which would usually be granted in a case like this one.
Both petitions have been circulating for years (restarting every few months, more or less). Neither went anywhere until one of the two groups got a huge influx of cash (Ahmanson, Focus on the Family, Knights of Columbus, etc). That allowed the group proposing the Prop. 22 language in constitutional amendment form to hire paid petition circulators.
It's obvious now that the simpler proposition will be on the November ballot. It is certain that the broader amendment will not make onto this year's ballot.
I'd certainly agree with you that an attempt to repeal the domestic partnership program would have no chance with the electorate. I presume that the folks with the money made a similar calculation.
1) So, it's quite clear that gay "marriage" advocates are going to try to cram this down the throats of other states, just as conservatives have been saying all along. Shocker.
2) I would complain about #1 less if CCW permits received the same "Full faith and credit". Yada yada yada, you all know what goes here.
I can't even get really worked up about this anymore - it's been predicted for years, the same points have been used for years, our tyrants in black continue down the same ridiculous tragectory, blah blah blah.
If the issuance of a marriage license is not a "public act, record or judicial proceeding," does it change the equation if a state court judge is the one presiding at the marriage ceremony? Does that make the wedding a judicial proceeding?
AdamJ - I see your point, and agree with it. I think, though, that any such federal case would likely have two Questions Presented: 1) is a marriage license a public act, record or judicial proceedings as contemplated by the Full Faith and Credit clause; and 2) can Congress, through statute, negate the applicability of the Full Faith and Credit clause?
Utah could win on the first question, and the court would never have to reach the second.
A marriage license is issued one time, and gives permission for the couple to marry. Once it is executed, the marriage lasts in perpetuity (until death, divorce, or annulment).
A CCW permit, on the other hand, is temporary, and can be revoked by the state against the will of the holder.
It's a bit disingenuous to equate a marriage license with a CCW license, don't you think?
Certain is, I think, overstating it. While it's true that every other petition that particular group of circulators has submitted has failed to qualify, it's possible that this time they got what they needed.
It's an interesting political dynamic. I think the broader initiative's presence on the ballot would make the narrower one more likely to pass; if both are on the ballot, then the side which wants both to fail has to either not distinguish between them (risky, in the event that both pass) or make the case that while both are bad, one is worse.
Deoxy - Shocking, I know, that gay couples would want their marriages to be recognized in any state that they choose to reside. And gay marriages will have the same problem that CCW have with full faith and credit, namely that the public policy exception to full faith and credit.
I think it's obvious. As we have seen with closeted hate-spewing pastor after closeted hate-spewing pastor, ex-gay after ex-gay, these people are embittered by the idea that a gay relationship could thrive. It is because they have surrendered their true identity as a gay person for societal and religious acceptance. Now, no one shall have happiness! Brahahahah Brahahahah.
It can't actually be religious as many claim. Why then don't they try to amend the US Constitution to say that only Christianity is an acceptable religion? According to Christian tenets, only those who believe Christ as their savior shall be saved. In that respect, those gays who at least have faith in Christ have a better chance at heaven, then say, Jews or Muslims or Buddhists.
The whole thing is terribly sad. Indeed, this era will be looked back on with disgrace and regret as so many many repressive acts in the past.
But ya' are, Blanche, ya' are!
So... you would have had no problem if Schwarzenegger had signed the twice passed legislation (that was twice vetoed by him) legalizing gay marriage in California? Because that would have made it rather unnecessary for "our tyrants in black" to step in and rule on this case.
The summary for the narrower measure is:
That was true when the petitions were cleared for circulation but is untrue now.
So what's the process? Does the summary stay as it is, making the November ballot misleading? Or does the summary change?
And if it changes, what are the rules? I mean, it would be really bad as a matter of policy if the summaries could in general be changed after the petitions had been signed and returned.
Fair enough. But:
1. We know that the folks proposing the broader initiative simply didn’t have the money, as a few weeks ago, to hire petition circulators (unless they've failed to make the proper campaign-finance disclosures). They've been pretty good about following those laws thus far. I expect them to continue to do so.
2. If they succeeded in gathering the 1 million or so signatures with a largely volunteer effort, I suspect that they would have made an announcement to that effect.
3. In the end, however, the calendar is working against them. There's only three weeks left to for the county clerks and secretary of state to qualify the measure for this year's ballot. At best, the process takes twice that long (and can drag out for months depending on the circumstances).
Were both to qualify, it would indeed be an interesting political dynamic for both the proponents and opponents.
This is the thorniest problem. The AG's title and summary (over which there is often litigation, including some on earlier versions these DOMA initiatives) needs to stay consistent throughout the process.
Offhand, I don't recall a case when the courts permitted a substantive change to the summary in midcourse. I'd expect a challenge next month on this very question, but I wouldn't hazard a guess as to the outcome.
That's even more interesting. What's the chance that it will take more than three weeks for the signature verification for the narrower one to finish?
If it *does* take longer than three weeks and the measure gets bumped to the June, 2010 ballot ... by then, ISTM, it would have no chance of passing.
The narrower one is (dare I say it) "certain" to qualify. Los Angeles County (a huge county) made it's random-sampling return late last week. It'll be qualified this week, I expect.
Given where things stand today, I agree that a ballot measure in 2010 doesn't seem to have much chance of passage (but a lousy showing for the governor's seat in that election might complicate matters).
1. Do states have throats?
2. Isn't the most common reason for shoving something down someone's throat to perform a life-saving intervention (e.g., a respirator or stomach pump)?
I'm just asking.
Even including LA County's return, random sample currently projects 732,860 votes, which is between 100% and 110% ... forcing a full check.
Six counties haven't yet returned random checks: Alameda, Lake, Mariposa, Nevada, Orange, Stanislaus. If they observe on average the same percentage as the rest of the state, it will add another 130K votes or so, putting it well over the limit.
(Most of those are from Orange County).
I'm somewhat impressed that they managed to get 24,000 signatures in Contra Costa County and 23,000 signatures in Santa Clara County; neither of those are outcomes I would have expected.
I think there are few if any people who signed this petition who would not have signed it had gay marriage already been legal.
That said, I can't *prove* that, and that creates an interesting dilemma.
Exactly. My thinking was that even though the counties have two weeks remaining to complete the random sample, just one sizable county is all it should take to bump the random-sample estimate over the 110% threshold.
If all of the outstanding counties returned before the deadline, the validation rate would have to plummet below 20% on the outstanding checks. That's unrealistic.
Based on this ruling, probably nothing beyond "legitimate"?
"The Court has already ruled that the Full Faith and Credit Clause does not require a forum State to apply a sister State’s sovereign immunity statutes where such application would violate the forum State’s own legitimate public policy"
Look at the Boy Scouts for exhibit A. They are being hounded from the public square because they don't accept SSM types. Cities and states are trying to outlaw them or burden them in any way possible. See just recently the City of Philadephia trying to end an 80 relationship with the Scouts on this issue and in essence fining the Scouts $200,000 a year because they aren't "tolerant."
Why do gay marriage types care if the Boy Scouts don't accept their lifestyles? Because they want to join an organization and force the organization to change it's values? What about churches? I don't see it being very long before churches are forced to lose their tax status or change their doctrine. And that will affect me, too. After all, the Gay Marriage types lie through their teeth when they claim they don't want to judicially force SSM on the rest of us... how can you trust them at all?
Nonsense; the two are not at all akin. The California Supreme Court ought to tell those seeking or supporting a stay to shove off.
The moment the California Supreme Court decision becomes final, in mid-June, 30 days after its issuance, it is the law of the State of California that gays and lesbians have a state constitutional right to same sex marriage. That decision will then be the final word on the matter; it is not reviewable by a higher court because it is a question of state law that has been decided by the state's highest court.
What the stay applicants seek is abrogation of the existing state constitutional right to same sex marriage on the basis of speculation that popular vote on an intiative proposition might amend the state constitution to remove the right and that if it does so, difficult legal questions and administrative problems might result from exercise of the right between the date the decision became final and the effective date of the initiative measure.
Let's get it straight: the right to same sex marriage exists and is enforceable as of mid-June. Constitutional rights are not such slender stuff that they may be taken away because their enforcement might present difficult legal problems down the road if certain events transpire. If and when the initiative measure is adopted by popular vote and it survives legal challenge in the courts, then and only then may the courts consider these potential and possibly difficult legal questions. Until then, the constitutional right to same sex marriage is the law of the State of California and it should be enforced as any other law.
Instead of listening to right wing talking points,it's much better to listen to the actual facts.
For years, the BSA chapters have had a priviledged place in communities, and they often get prime space rented to them for free or nominal amounts. However, as in Philly, there is a local ordinance that prohibits discrimination based on sexual orientation, and the BSA had prime space owned by the city that they rented for $1 per year. So the city simply stated that they must pay full market value for the space, like everyone else, which resulted in rent in the six figures.
The problem is that the BSA and other anti-gay organizations want special rights. They want to be exempt from local laws AND they want special treatment.
I guess their position is that SSM might be overturned in the November election, and so based on this possibility, the court should stay their decision.
But is that good policy? There is a possibility that the decision can be overturned, but there is a possibility that it won't. In that case, the AGs will still have to deal with the situation at hand.
I think the bottom line is that the AGs would prefer to not have to figure this one out unless they absolutely have to. But figuring things out is part of their job description.
Why do gay rights groups get to define what is publically acceptable morality? I note none of you gay rights promoters have said anything about the next group to lose their "special privileges" over gay marriage: churches. Isn't that the goal of gay rights groups? Public acceptance and mandated tolerance on pain of prison?
Did they actually file a brief? It looks like they just mailed a letter to the chief justice. And a substantive letter to a judge generally means squat. Maybe the California Supreme Court has some weird procedure, but generally, if you want a court to do something, you are supposed to file your request with the clerk in the form of a petition, motionm or brief.
Should we allow it or not? If we are smart, we will decide to prohibit it, because it is unethical, impractical, expensive, would lead to further bad things, etc etc, the list doesn't stop. But if we prohibit it and yet still allow same-sex marriage, it will be the first time in history that marriage has not meant that the couple is allowed to attempt to procreate. This would be a huge change to marriage, and it would threaten everyone's basic civil rights to procreate.
All the lawyers around here know it is true, they just want to enter the age of genetic engineering and limited conception rights. They want to litigate their way through this whole thing, cushily suited up in their ivory towers, and they don't want a simple ban on using modified gametes to get in the way of a comfortable life wasting all of our time and money.
Volokh and Balkin and Tribe, et al: the gauntlet is thrown, let's hear what you all have to say: should we have the same right to conceive with someone of either sex? Should marriage protect the right to attempt to conceive together, using the couple's own genes?
Why do gay rights groups get to define what is publically acceptable morality?
They don't. Voters do. Philadelphia voters and the voters of many other jurisdictions have decided that they find bigotry against gays to be morally abhorent and don't want to subsidize it. Why should you get to define what is acceptable?
Nonetheless, your churches next comment is obvious hyberbole. We've a long tradition of letting churches discriminate on grounds far more lenient than basic civil law, e.g. My Catholic church won't marry divorced people. No one cares because you can easily go to another church. There aren't as many different scouting organizations as churches because for so long we subsidized just the BSA.
Additionally, in the modern liberal state the right to reproduce is an individual right - not the right of a married couple. I am completely allowed to try for natural reproduction with any consenting female who is of age and not a close relative.
Finally, your nightmare of genetic engineering isn't going to be caused by teh gheys you are so panicky about. If it happens, it will be all the straight couples and single women who want to have children but have trouble doing so without assistance because there are just so many more members of these groups than there are gay couples.
Stop trying to make your anti gay bigotry more respectable by pretending its just squickiness about cloning.
If the California Supreme Court had applied mere rational-basis review in reaching its decision, it would be reason enough to revisit the ruling. Rational basis review only requires some possible relation to a legitimate state interest to justify a challenged classification. And there plainly is a legitimate interest in interstate comity and avoiding possible interstate conflicts in family law.
But for years, the California courts have applied higher levels of scrutiny (sometimes even strict scrutiny) to sexual-orientation and other classifications under the state constitution than they receive under federal law.
(I say "other classifications" because the Hawaii courts said that gay marriage bans are really sex-based classifications, not sexual-orientation-based ones. That wouldn't change the result in California, though. California courts also apply strict scrutiny to all gender-based classifications, see, e.g., Connerly v. State Personnel Bd. and Hiatt v. City of Berkeley (cases applying strict scrutiny to gender-based affirmative action plans)).
Thus, the California Supreme Court applied strict scrutiny to the challenged classification in striking down the ban on gay marriage. (It was correct on stare decisis grounds in applying some form of heightened scrutiny, and probably correct in invalidating the gay marriage ban).
And strict scrutiny requires a compelling government interest to justify the challenged classification. Interstate comity isn't a compelling interest, and a ban on gay marriage regardless of domicile, etc., wouldn't be narrowly-tailored to it in any event.
Interstate comity is enough, of course, to justify upholding a gay marriage ban under rational-basis review. Rational-basis review logically applied to the Massachusetts gay-marriage ban, given the differing text and history of that document, and the Massachusetts Supreme Court, unlike the California Supreme Court, was wrong to find a right to gay marriage under the state constitution. (Moreover, its subsequent admission that the state legislature had a valid interest in preventing gay marriages by people from out of state directly impeaches and contradicted its earlier holding in striking down the gay marriage ban that the state's gay marriage ban did not arguably advance a legitimate state interest and thus flunked rational basis review).
Thus, the Massachusetts Supreme Judicial Court erred in the ultimate result it reached, while the California Supreme Court probably got it right.
The fact that the California Supreme Court probably got the result right doesn't mean it didn't make some errors in reasoning along the way, though. While its equal-protection ruling was plausible on stare decisis grounds, its separate fundamental-rights argument, which suggested that the state must show a compelling interest to deny "official recognition" to ANY family form, and that its marriage laws are "narrowly drawn" to such interests, dangerously opened the door to arguments by polygamists and others challenging other essential characteristics of the marital relationship (such as number of partners, etc.).
Society has a strong interest in banning polygamy, and no state should be forced by the judiciary to recognize polygamist relationships.
The California Supreme Court should amend its opinion to drop some of its dangerously broad and vague "fundamental rights" language.
"Why should you get to define what is acceptable?" Because he is a voter.
In other words, it's okay for Philadelphia voters to say "anti-gay bigotry is immoral" - but when the voters of California said (by overwhelming numbers) that gay marriage was immoral.... you prefer the will of the people be overturned in favor of your preferred vision of morality.
I hear the bitch about "legislating morality" all the time. Philadelphia voters can decide that anti-gay discrimination is more immoral than gay behavior itself, and California voters can decide the other way. Utah shouldn't dictate Nevada morality, and Nevada shouldn't dictate Utah morality. But each can dictate their own.
Maybe, but that is our business, not theirs. Other states don't get a say in whether California courts decide, in their wisdom, to wait for election results before implementing controversial court decisions. There's no rule that says that California judges are required to abide by movement conservative conceptions of how the justice system should work.
At best, the AG's have a role in saying "look at the mess you will create if you marry a bunch of out-of-staters and then they move back to our states". But at best, that argues for a residency requirement before the election, not denying California gays and lesbians their right under the state Constitution to marry.
My reference to "its subsequent admission" referred to a ruling by the Massachusetts Supreme Court, not the California Supreme Court.
Generally, you can't get reconsideration on any argument you could have put in your briefs. Your chances should go down further if you could have filed a brief, but didn't. You chances should be zero if you ask for reconsideration in the form a letter to one justice instead of a correctly filed motion, petition, or brief.
Here's the thing. BOTH voters and judges get to weigh in on this. In Philly, the voters put into place the anti-discrimination laws. In California, it was the Supreme Court that declared an existing law to be discriminatory.
Isn't it great that we have more than one way of moving forward by reducing discrimination?
I'm not disputing the legitimacy of individual jurisdictions voting to subsidize the BSA despite, or because the jurisdiction approves of, the BSA's discrimination. That is up to the voters, but you shouldn't be a sore loser and pretend that a minority is oppressing you when you straight up lost a vote.
Note that the California legislature passed a SSM statute which was vetoed because the governor wanted the court to resolve the issue. Also California will most likely get to vote on a referendum to overturn the SSM decision by 2008 - the voters will have their say.
Finally, it is not inconsistent with my principle of majority rule for people to argue that a majority approved general law or constitution trumps and makes illegal a majority approved specific practice - that is what Constitutions are for.
Every person has a right to marry and every marriage has a right to attempt to procreate. It doesn't matter whether they are able to or not, that is not known until they succeed. People should not have a right to attempt to procreate with someone of the same sex.
And it would be easy to allow SSM and ban whatever embryo creation technique you want. Just pass the relevant statutes.
But the consequence would be that marriage is changed so that it no longer protects a couple's right to attempt to conceive together. Otherwise, we'd have two different sets of marriage rights, both called marriage. And I'm not so sure it would be easy, so far, all SSM supporters and Transhumanists I've come across have rejected the idea of any bans on how they might want to create people. I'm happy to deal with that issue first - should we pass those relevant statutes and what exactly should they be? If we do find it "easy" to pass that ban, then look around at where we are: same-sex couples suddenly don't have a right that every marriage has always had. Either we strip that right from everyone's marriage, including yours, or we don't let same-sex couples marry.
You don't articulate, and there isn't any self-evident, slippery slope mechanism as to why a generally applicable law banning a technological method of reproduction affects any other couple's rights.
If it totally prohibits a married couple's right to even attempt to have children together, then it strips that right from everyone's marriage. It's simply logic.
Does the gay male couple's inability to become pregnant hurt my wife's right to do so?
Only if we give the gay couple all the rights of marriage and ban the use of modified gametes. Then it says that your wife has the same right to conceive that they do - ie, none. She' could still do it, but she'd be doing it under a sword of damocles, under constant threat that the state could decide that her genes or your genes, or your political views or housekeeping, meant that the state could say that you had the same right to attempt to conceive that two men do, ie, none.
Additionally, in the modern liberal state the right to reproduce is an individual right - not the right of a married couple. I am completely allowed to try for natural reproduction with any consenting female who is of age and not a close relative.
Oh? I don't contest that it sure seems that way, but I don't think that is true. Lawrence even confirmed that marriage gives the couple the right to conceive together, first among other things. And the state still cares about who one procreates with, we still do not let people do it with siblings, children, people married to someone else, etc, and to that, we now have to add "someone of the same sex". It is not a right that people can decide for themselves. Only marriage establishes consent.
Finally, your nightmare of genetic engineering isn't going to be caused by teh gheys you are so panicky about.
The use of modified gametes, and the insistence on reproductive autonomy and freedom, is being pushed by (or pushed on) gays.
If it happens, it will be all the straight couples and single women who want to have children but have trouble doing so without assistance because there are just so many more members of these groups than there are gay couples.
And I am trying to stop straight couples and single people from using modified gametes also. People - all people - should only be allowed to conceive using their unmodified actual gametes, by combining it with someone's of the other sex.
Stop trying to make your anti gay bigotry more respectable by pretending its just squickiness about cloning.
But it is all about preserving natural conception and stopping genetic engineering. Stop trying to make opposition to human GE seem like anti-gay bigotry.
I think it's obvious. As we have seen with closeted hate-spewing pastor after closeted hate-spewing pastor, ex-gay after ex-gay, these people are embittered by the idea that a gay relationship could thrive. It is because they have surrendered their true identity as a gay person for societal and religious acceptance. Now, no one shall have happiness! Brahahahah Brahahahah.
It can't actually be religious as many claim. Why then don't they try to amend the US Constitution to say that only Christianity is an acceptable religion? According to Christian tenets, only those who believe Christ as their savior shall be saved. In that respect, those gays who at least have faith in Christ have a better chance at heaven, then say, Jews or Muslims or Buddhists.
The whole thing is terribly sad. Indeed, this era will be looked back on with disgrace and regret as so many many repressive acts in the past.
People devote time to opposing polygamy, opposing gambling, opposing drinking, opposing prostitution, opposing smoking, opposing porn, and so on. Some of these people are moralists from the right, and others from the left. None of those issues should affect the non-practitioners' daily lives. Why do they bother? Because the majority has always, and will always, be entitled to legislate morality. They will continue to outlaw things which the majority finds morally unacceptable, whether it is something you recognize as moral legislation (no prostitution! no SSM! no dildo sales!) or something you just might happen to assume all right thinking people agree with, and thus it is perfectly acceptable to impose your view on everyone else (no more old light bulbs! no more trans-fats! no more gas guzzling sports cars!).
I oppose public nudity. Does that mean I harbor a secret self-loathing over my own desire to prance around naked in public?
Your link between genetic modified gametes (or whatever) and SSM is bs. You are just pretending the "attempt" of a sterile straight couple to get pregnant via sex is somehow more meaningful than a gay couple's attempt to get pregnant via sex would be. This is nonsense. Ban whatever genetic techniques you want. All couples/individuals have the same right to try and get pregnant the old fashioned way. None have the right to try and get pregnant using whatever SF stuff you're terrified of. These two propositions are not contradictory - that gay couples (and infertile straight couples) will have no meaningful right to reproduce together does not in any way strip fertile straight couples from their right to reproduce naturally. Just like the fact that I cannot get pregnant does not implicate my wife's right to get pregnant. Your conclusion is counterintuitive for its own sake.
Further, reproduction in modern america is an individual right. Lawrence merely points out that its historical development was from the right of married couples - note that the couple in Lawrence whose rights were recognized were not married. The state takes no interest in who I reproduce with except in the following limited cases: minors (because its child abuse) and close relatives (because it almost always relates so closely to child abuse that we just ban it). Note that in neither of these cases is the State concerned about my reproduction (although I suppose some people might use that as a collateral reason why incest is bad, but the core reason is still its almost always abusive), but, instead is only concerned about the abuse of my partner. And if you ban artificial reproduction - your not banning reproducing with people of the same sex, your banning a method (even if it has the practical effect of preventing same sex reproduction). After all - its not like you are going to allow straight couples to use genetically modified gametes or whatever - or if you did, then that would be anti gay bigotry.
Adultery isn't even a concern of the State's. My wife could divorce me, although as another point against your theory she could choose not to. And my wife might get more out of the divorce proceedings than if no fault - but - its an issue of my wife and me, not the State, just like a common contract. So SSM doesn't change my individual right to have kids.
Finally, because the effect of infertile straight demand for artificial reproduction swamps the effect of married gay couple demand you aren't meaningfully reducing the chances of artificial reproduction coming to pass. You're just using this as a smokescreen to cover anti gay bigotry.
It's pretty obvious that people who have a self loathing about something will tend to make extreme statements against that thing. Thus, former fatty Mike Huckabee wants to ban smoking and transfats, and former alcoholics are often raging teetotalers.
That does nothing to challenge my post. PKK2 had said that virulent anti-SSM activism "clearly demonstrates" that you are a secret homosexual. That sort of thinking is rather amusing in its logical absurdity. Just because there are some freaks who fit the "American Beauty" mold of raging-self-denying-homosexuals who will kill you to keep their secret-gay-lust secret, doesn't mean that being anti-SSM means you are more likely than not gay.
BTW, the article you linked to does not show that "people who are anti-gay are much more likely to be physically aroused by gay pornography than men who are not." You really need to take a course in statistical probability.
I am not talking just about people who oppose these things in theory. I am talking about people who oppose these things so rabidly that they devote hours and hours of their time trying to convince others to oppose it, too.
Why spend your whole day at the gay pride parade, when you can be enjoying the day with your families?
As for your opposition to public nudity, I doubt you have invested millions of dollars and hours of time trying to enact a ban. Am I right? Even that said, part of you probably envies the freedom of the publicly nude.
From a biblical perspective, the desire to wear clothes is derived from sin. Nudity was what God intended. See generally, Genesis. ;-)
Do you (and Tom, and Eugene, et al) accept that people should have a right to conceive with someone of the other sex, but not with someone of their own sex? That's a pretty basic question. I think that allowing people to attempt same-sex conception is absolutely stupid and wrong-headed. Why is it needed? Do you see how it makes it impossible to prohibit other forms of genetic engineering?
There is a man in my town who drives a truck around all day long. The truck is covered with anti-gay statements(something like Phelps). He is a one-issue type of guy. ALl day, everyday, he lives to protest against gay rights or as he might call it the "gay agenda." You don't think that there is something even remotely psychologically damaged about this man. I mean, he lives more of his life thinking about "gay" than gay people do.
Your website looks like a joke from the Onion.
Following along with your reasoning though, you're also not clear why this question is only relevant if we permit gay couples to be married. Are you saying that allowing same sex couples the right to marriage implies a joint right to cloning and other asexual acts? Why is that only true if we allow gay couples to marry, but not currently true of a right for straight couples? It's possible that at some point Congress may define some sort of right to clone (though I doubt we're anywhere close to that point) but why is it more likely to apply to gay couples that cannot conceive children but NOT to straight couples that cannot conceive?
Public_Defender: Who cares whether it's a violation of freedom of contract and property rights? The last time either of those fundamental rights received any meaningful protection was when Lochner was still good law.
The irony is that the same liberal bastions who advocated overturning [i]Lochner[/i] substantive due process could have benefited from it w.r.t. SSM and a host of other legal issues. Too bad they were so short-sighted when they wanted to piss on private property rights back then. I'm all in favor of SSM rights, but I can't help but laugh at the utter stupidity of the positions taken by people on both sides of the issue.
I care far more about the totalitarian tendencies of the homosexual lobby (requiring photographers to work gay weddings; requiring churches to rent space for gay weddings; punishing print shops for refusing to print gay wedding announcement; overturning popular votes based on utterly dishonest readings of the federal and state constitutions) than I do about same-sex marriage.
We're running into a serious problem: who is going to run America? The majority? Or the 3% of America that is gay?
I'm confused. First, where does this right to conceive with one's unmodified gametes come from? Has it been enunciated by a court? I ask out of sincere ignorance. I really don't know.
But even accepting your premise, suppose we have a married couple, one of whom can produce her own gametes and one who can't. Why does it matter what sex the person who can't produce his/her own gametes is?
And you say a person should only have the right to try to reproduce with someone of the opposite sex. Well, suppose two women are married. They want a child so they buy some sperm and one of them gets inseminated. Hasn't the mow pregnant woman reproduced with someone of the opposite sex, and used her own unmodified gametes? So what's the problem?
If they succeeded, it would be a good fine thing that society approved of, they would be joining their actual unmodified gametes, no genetic modification or extreme risk of birth defects involved. But if the same-sex couple's attempt succeeded, or even succeeded only in creating an embryo that died before birth, it would be a bad thing, the person would have to be the subject of lifelong experiments and monitoring to ensure their development was normal, including examining their children as well. And the chance of them dying or having severe suffering from imprinting issues is orders of magnitudes higher than any natural conception. It should not be allowed to be attempted. A married man and a woman should be allowed to attempt to conceive. It is the very "concept" of children that should be approved of for a married couple but not allowed to siblings, children, and same-sex couples.
Ban whatever genetic techniques you want.
Trying to, thanks. There is resistance from Transhumanists and Postgenderists and crazy SSM activists.
All couples/individuals have the same right to try and get pregnant the old fashioned way. None have the right to try and get pregnant using whatever SF stuff you're terrified of.
Currently, in this country, none of that SF stuff is prohibited. Currently I have the same right to conceive with a woman using our natural gametes that I have to conceive with a man, or my dog, for that matter. We need a federal law prohibiting all forms of conception that do not join the sperm of a man and the egg of a woman. That's due to the biology of sexual reproduction, which requires complementary gametes. We should stick with sexual reproduction, so that all people are created equal, and all people are human, and all humans are people.
These two propositions are not contradictory - that gay couples (and infertile straight couples) will have no meaningful right to reproduce together does not in any way strip fertile straight couples from their right to reproduce naturally.
If people try to say that I have equal rights with a woman that I have with a man, then it does.
Just like the fact that I cannot get pregnant does not implicate my wife's right to get pregnant. Your conclusion is counterintuitive for its own sake.
That fact indicates why only a marriage of a man and a woman is fully human and has conception rights, and individuals do not.
Further, reproduction in modern america is an individual right.
Well, I'm not staking my argument on whether there is a right for individuals to conceive without marrying. I disagree, I think only a marriage has the right to reproduce and unmarried people are merely getting away with fornication or adultery, but it matters not: same-sex conception and GE would be banned regardless of marriage. The question as it relates to marriage is, should marriage continue to protect a couple's right to conceive together, or should the state be able to prohibit a marriage from conceiving together?
Lawrence merely points out that its historical development was from the right of married couples - note that the couple in Lawrence whose rights were recognized were not married.
Marriage never made sodomy legal, only sexual intercourse. And Lawrence affirms that it still does so.
The state takes no interest in who I reproduce with except in the following limited cases: minors (because its child abuse) and close relatives (because it almost always relates so closely to child abuse that we just ban it).
And now it should also prohibit someone of the same sex.
Note that in neither of these cases is the State concerned about my reproduction (although I suppose some people might use that as a collateral reason why incest is bad, but the core reason is still its almost always abusive), but, instead is only concerned about the abuse of my partner.
No, the state is concerned about your reproduction. Mixing your genes and making offspring - miscegenation. There's no law against a woman being a controlling shrew to her brother and causing him to live with her for his whole life, the law is against them having sex and children.
And if you ban artificial reproduction - your not banning reproducing with people of the same sex, your banning a method (even if it has the practical effect of preventing same sex reproduction). After all - its not like you are going to allow straight couples to use genetically modified gametes or whatever - or if you did, then that would be anti gay bigotry.
well, it's more than just banning a method, we need to ban all methods that do not join the sperm of a man and the egg of a woman. Again, it's biology, not bigotry. Sexual reproduction - and sex - should be preserved.
Adultery isn't even a concern of the State's.
It should be, and it always has been. If it isn't anymore, that is big news to every judge and state. Maybe most states don't bother with criminal trials anymore, but it is still a valid state concern. (But it shows why you don't think SSM is going to change marriage, you don't even think marriage means the couple can't have sex with other people)
My wife could divorce me, although as another point against your theory she could choose not to. And my wife might get more out of the divorce proceedings than if no fault - but - its an issue of my wife and me, not the State, just like a common contract.
In most states a husband can now challenge paternity and initiate divorce, though they are also allowed to presume paternity. (I'm not sure what the right of the bio-father is to assert fatherhood, but it is probably recognized more these days). Otherwise, sure, the state doesn't get involved much with the criminal side of divorce proceedings these days, though some actions probably do still create fault in many states and therefore entitle the hurt party to more consideration.
So SSM doesn't change my individual right to have kids.
It suggests your right to have kids are the same with a woman that they are with a man. And if we do ban modified gametes, then SSM says you no longer have a right to have kids.
Finally, because the effect of infertile straight demand for artificial reproduction swamps the effect of married gay couple demand you aren't meaningfully reducing the chances of artificial reproduction coming to pass. You're just using this as a smokescreen to cover anti gay bigotry.
I think with this Civil Union Egg and Sperm Compromise I'm closer than anyone to enacting a ban on GE. By tying these back together, and showing how we can achieve equal protections with CU's that don't give conception rights, we can preserve marriage and prohibit GE very effectively and meaningfully. People need to know that SSM really means insisting on the right to use GE and denying natural conception rights. Give up those demands, and accept CU's and we can wrap this up before the end of the summer.
since when does marriage give conception rights? I know it comes with a right to sexual intimacy (modified of late to require the consent of the wife to said intimacy) but where has a marital right to conception ever been articulated?
and again. If I marry a 97 year old woman who's had a complete hysterectomy, and if marriage comes with a right to conception, doesn't that mean my new wife and I (by your logic) have a right to avail ourselves of the same technology you seek to ban by banning same sex marriage?
No, it certainly doesn't. That's one of the things I'm trying to establish. But there are people who claim a right to asexual reproduction, or some half-way method using artificial or modified gametes. It is not illegal to use modified gametes or really to do anything, creation of people is pretty unregulated right now.
<i>Following along with your reasoning though, you're also not clear why this question is only relevant if we permit gay couples to be married.</i>
Oh, it is relevant if we do not permit SSM too! Even if no one ever thought of SSM, we'd still have to prohibit same-sex conception and GE.
<i>Are you saying that allowing same sex couples the right to marriage implies a joint right to cloning and other asexual acts? </i>
It implies the same right to attempt to conceive children together that all marriages have always had, using whatever method might become available. It implies an obligation on society to do the research to enable same-sex conception and make it safe and affordable.
<i>Why is that only true if we allow gay couples to marry, but not currently true of a right for straight couples?</i>
Straight couples do have a right to attempt to conceive children together. Actually, currently same-sex conception is not prohibited either. Banning GE and modified gametes would not affect any straight couple's right to conceive together, but it would affect every same-sex couple - it would prohibit them from conceiving together.
<i>It's possible that at some point Congress may define some sort of right to clone (though I doubt we're anywhere close to that point)</i>
Actually, we are calling on Congress to prohibit cloning. Currently it is legal, though many states have laws against implanting embryos that are not from egg and sperm (though most do not define egg and sperm and thus allow modified gametes).
<i> but why is it more likely to apply to gay couples that cannot conceive children but NOT to straight couples that cannot conceive?</i>
Straight couples would use their actual gametes to conceive together, due to the nature of sexual reproduction, which uses meiosis and genetic imprinting to create complementary gametes. The whole genome is imprinted male or female, with various genes on or off depending on the sex of the parent. When they come together, only one copy is "on", making for a viable embryo. Same-sex couples would have to reverse the genetic imprinting on one or the other's genes to make modified gametes, which is unethically risky and useless and should not be allowed.
Well, Skinner found that right to be a basic civil right of man. The court didn't suggest that Mr. Skinner could use someone else's sperm to conceive, that wouldn't have been acceptable. The right is to use your own sperm. Are you really suggesting that the state should be allowed to prohibit someone from conceiving with their own genes? It would be good to get that out in the open if you are.
But even accepting your premise, suppose we have a married couple, one of whom can produce her own gametes and one who can't. Why does it matter what sex the person who can't produce his/her own gametes is?
By the sex of the people, we can tell whether it would be ethical for them to conceive together. Only same-sex conception requires steps to reverse the imprinting to make it possible to create a viable embryo.
And you say a person should only have the right to try to reproduce with someone of the opposite sex. Well, suppose two women are married. They want a child so they buy some sperm and one of them gets inseminated. Hasn't the now pregnant woman reproduced with someone of the opposite sex, and used her own unmodified gametes? So what's the problem?
Yes, she has. No genetic engineering was involved. That sort of thing would still be legal after the law I am calling for. I am only trying to stop the use of modified gametes with an "egg of a woman, sperm of a man" law. Also, note that marriage has nothing to do with that woman's ability to use donor sperm. She could be single, straight, gay, married, it doesn't matter.
Perhaps so, but that has absolutely no relevance to a discussion about gay marriage.
Right, which is why there ISN'T this connection you're trying to make.
How so? a gay couple can have sex as many times as they want, but it'd be pretty historic if one of them became pregnant doing that. Similarly, whether married or unmarried people have the right to conceive children whether married or not (and whether wise or not). Lesbian couples will often go to a sperm bank, gay males will in some cases hire a woman to act as a surrogate. None of that requires marriage, but it doesn't preclude it either.
Still though, where is this "right to conceive" that you believe is in all marriages? It's like you're arguing for a "right to grill a good steak" even if you always overly char them. You've got a right to sexual intimacy, which often results in children for heterosexuals, as for the rest I don't see where you're coming from.
It does no such thing, there is no right to conception, and never has been.
PKK2,
I would wager good money that the guy who drives that truck around is seriously deranged, and/or has some deep-seated self-loathing issue (or family-loathing). I've seen that sort of behavior myself. I agree with your basic premise that there are certain people who "doth protest too much." But I think you overstated it.
There are plenty of people who prefer to focus on one issue. It's a matter of efficiency (if they divided attention among all their issues, they would get nothing done). Some people latch onto the anti-SSM movement so vigorously because it presents (to them) a very simple, clear example of PC tyranny. That's my position.
Personally, I have no problem with gay people. I have a gay masseuse, I've had gay roomates, bosses, and so on. I don't buy ANY of the standard anti-SSM arguments (e.g., procreation). Yet man-on-man action still grosses me out, I still think it is immoral, and I still would vote against SSM. That doesn't mean gays are any more immoral than straight people - as straight people engage in plenty of immoral acts themselves (anecdotally, the gays I know are probably more moral than my straight friends). But I'm not out there calling for legalized prostitution, adultery, drugs, etc.
BTW, on the public nudity issue. I would be happy with a "nobody over 18% body fat" nudity rule. I do not harbor any desire to see any fat person naked.
This idea that marriage implies a right to procreate is a dead horse.
Even though I despise these arguments (mainly, because they are inaccurate -- churches aren't now required to marry interracial couples or to rent space to Asians), I will point out one thing.
If you replace "black" for "homosexual"/"gay" in your statement, you sound strikingly similar to anti-Black people upset over Brown v. Bd of Educ. or Loving v. Virginia. That should give you pause:
I care far more about the totalitarian tendencies of the black lobby (requiring photographers to work black weddings; requiring churches to rent space for black weddings; punishing print shops for refusing to print black wedding announcement; overturning popular votes based on utterly dishonest readings of the federal and state constitutions) than I do about same-sex marriage.
What about the anti-gay lobby? Aren't they scarier...spending countless dollars to take away someone else's rights?
There Is the connection I'm trying to make because even though modified gametes and same-sex conception would be prohibited regardless of marriage, marriage must still continue to protect the couple's right to conceive with their own genes.
Do you see that you are making some pretty wild claims here? You are claiming that marriage doesn't protect a couple's right to attempt to conceive using their own genes. You apparently believe that married couples can be prohibited form conceiving using their own genes. That is a radical and very fascist, totalitarian Eugenicist nightmare. I reject that, and declare that we all have a right to use our own gametes to procreate. (But not with siblings, married people, children, or someone of the same sex). Note that I'm not claiming a right to free or legal access to any kind of wizardry some scientist might dream up to help me conceive, but I do claim a right to attempt to get healthy and medical privacy that says its none of anyone's business whether I might be able to conceive or not. All I claim is a right to attempt to conceive using my own genes.
The other rather wild claim you appear to be making is that no, same-sex conception should not be prohibited. People should be allowed to attempt to join their genes with someone's of their same sex to create children. That's a pretty radical claim too. Or are you not claiming that, and agree that we should only have a right to conceive with someone of the other sex?
There Is the connection I'm trying to make because even though modified gametes and same-sex conception would be prohibited regardless of marriage, marriage must still continue to protect the couple's right to conceive with their own genes.
Do you see that you are making some pretty wild claims here? You are claiming that marriage doesn't protect a couple's right to attempt to conceive using their own genes. You apparently believe that married couples can be prohibited form conceiving using their own genes. That is a radical and very fascist, totalitarian Eugenicist nightmare. I reject that, and declare that we all have a right to use our own gametes to procreate. (But not with siblings, married people, children, or someone of the same sex). Note that I'm not claiming a right to free or legal access to any kind of wizardry some scientist might dream up to help me conceive, but I do claim a right to attempt to get healthy and medical privacy that says its none of anyone's business whether I might be able to conceive or not. All I claim is a right to attempt to conceive using my own genes.
The other rather wild claim you appear to be making is that no, same-sex conception should not be prohibited. People should be allowed to attempt to join their genes with someone's of their same sex to create children. That's a pretty radical claim too. Or are you not claiming that, and agree that we should only have a right to conceive with someone of the other sex?
my god, that had completely slipped my mind. And I used to practice in one of those states. There's the Wisconsin statute on the subject:
that sort of destroys the whole marriage entails the right to conceive argument (which was pretty silly to begin with anyway)
Yeah, these were clumsy compromises based on giving a right to cousins only if it appeared they wouldn't be able to exercise it. Note that once married, they were not prohibited from conceiving, though that is apparently the point of not allowing them to marry if they can't prove they are infertile. The exception is only for older couples that have already lost out on the chance to procreate with someone else, so the reasoning is why not let them marry each other if they want to?
These days, with IVF, I'm not sure how states deal with the "prove they can't procreate" thing. They would be a good candidate for my Civil Unions that do not grant conception rights.
This idea that marriage implies a right to procreate is a dead horse.
No, what is a dead horse is the old saw "procreation is required for marriage", which was a straw man before it was beaten into a dead horse. The concept of a right to procreate together being inherent in marriage has not been discussed much at all, it is a very lively and wild horse.
There is a substantial difference between the state taking action to prevent a couple capable of natural conception (forced sterilization) and a couple that is by nature inherently infertile. Again, I go back to my example of a steak. You may have the ability to cook a steak, but that doesn't guarantee you a good result. Similarly, a same sex couple can have the right of marriage (which includes sexual intimacy) without some ridiculous guarantee of a right to a RESULT from marriage of children.
He is a man, and I am a man. I stand corrected on the masseur/masseuse (don't ask me to get alum/alumni/alumnus correct either!). So yes, it is man-on-man action. I should have said 'man-on-man sexual action' in my prior post. After all, I get kissed regularly by old persian men in my social circles, and that is only awkward, not sexual.
great.
so... mother's have the right to marry their sons?
fathers have the right to marry their son?
brothers have the right to marry their brother or sister?
fascinating
i support gay marriage btw. but your "logic" hurts
Where did anyone say that? if you're responding to me I view the conception of children as a result of heterosexual sex, that is, intercourse. Adults have the right to have consensual sexual relations, including intercourse, children aren't a "right" in the sense that you're entitled to them in the property sense, they're an outcome from a particular form of sex, that being intercourse between 2 fertile people of the opposite sex.
Nobody in this thread is arguing about same sex couples being "allowed" to conceive together except perhaps you.
There is no right to conceive children in US law, there is a right to take specific actions (paths, if you will, such as sexual intercourse and IVF) that may or may not lead to conception, but no inherent right "to" conceive or not conceive.
And for anyone on the fence, the opponents should just point to the case of Michigan, where the supporters were claiming one thing, but the courts eventually decided the opposite (I'm still wondering how the MI SC justices managed to pull that justification out of their asses, when the plain reading of the voting documents states clearly that their interpretation is wrong). That should be sufficient to tilt the vote to a NO.
But one thing I am wondering about is how these AGs can spout such nonsense with a straight face. First, there are enough states permitting marital or other relations that conflict directly with the bigoted constitutional amendments even where they had been passed. Plus, there are also foreign states (UK, for example) that now also recognize and perform same-sex marriages or execute partnerships. California will not set any precedent with respect to this situation. The reason they are afraid is because the impact can be felt directly--unlike Massachusetts and Vermont, there is no out-of-state prohibition. So where challenges created by those married in other states may well be viewed as accidental (a thus married couple has a constitutional right to the freedom of movement), under California law, outsiders can freely go to California for the sole purpose of obtaining a license. Still, that's precisely the point--it's not a question of precedence, but volume. That's why this whining has no legal validity. Nor should it have any value.
That's an actual real question that you can't just ignore. (Well, you can, but it would show you to be a conniving scoundrel) That's independent of marriage, so far. That question is simply about prohibiting or allowing people to attempt SSC.
Now, do you really think that a marriage that is prohibited from attempting to conceive together is equal to a marriage that is allowed to conceive together? If they are equal, do you not see how you have stripped the right to conceive from all marriages? Sure, they might still do it form time to time, but no longer would it be a protected right. Can you name any marriage in history that did not enjoy the protected right to conceive children together? Do you really want to change marriage that way?
I've repeatedly said - Sexual intimacy sure, right to a laboratory to theoretically create a clone or some sort of fusion of DNA with both partners? Not currently in the law I'd say.
Heterosexuals are not "allowed to conceive together" they're allowed to have intercourse together. The distinction is that no state, anywhere that I am aware of allows individuals to have sex on days when a woman is infertile but NOT specifically when a woman is fertile. People of all types and backgrounds are allowed to have intercourse if they so wish.
If I accepted your premise the answer would be no, of course not, but your premise is faulty as I just stated. I see no difference between couples being allowed to have whatever sex they are capable of, even if a couple is not able to have all forms of sex that another couple is. For example, I don't consider a woman who marries someone who lost their penis in a farm accident to have fewer "rights" than a woman who marries a man with a normal and intact penis, they simply married out of love or for whatever reason.
Can you name a country that defines an explicit right to conceive children? I can think of plenty with a specific right to have sex, but none that specify that the result is a protected right.
Not really. The full faith and credit clause does not specify what time period or sort of action is required, only that the action be a "public Acts, Records, or judicial Proceedings". It doesn't matter whether the act is instant and lasting — like a marriage license or an adoption record — or time-limited — like guardianship or a restraining order/order of protection.
What I've noticed is that people who are reflexively anti-gay have likely been abused as children. Anecdotally, I knew someone at work who was simply unable to discuss gays without becoming apoplectic. He was also quick to point out how he had narrowly avoided being raped in high school. The DOJ stats on sexual assault of children also show that most boys are abused by men.
This also explains the Boy Scouts. When my son was in Cub Scouts, the chapter was extremely paranoid about child molestation. Parents/scout masters were basically not allowed to be in close contact with anyone other than their own children. While this seems extreme, it makes sense. The threat of a child sexual abuse scandal is an existential threat to the Boy Scouts. Unlike the Catholic Church, the Boy Scouts simply don't have the resources to defend against a child abuse scandal.
No it wasn’t a brief, amicus or otherwise. It was apparently (I haven’t seen the pleading) a letter styled as a “request for modification of opinion.” There really isn’t such a procedure in California’s appellate rules (especially for a non-party/intevenor).
I don’t recall seeing any of these AGs in the (copious) amici filings during the briefings. Regardless, the Supremes permitted the request to be filed (they more often return these kinds of irregular pleadings without filing them). That’s probably as far as the majority will take that irregular request (a minor nod to comity).
For most of the request signatories, the Full Faith Credit concerns seem disingenuous. Most of states represented have constitutional amendments forbidding same-sex marriage. That should, on its face, create a presumption that SSM is odious to the state’s public policy.
Proof of mens rea (guilty mind)
There must be more than merely preparatory acts and, although the defendant may threaten death, this may not provide convincing evidence of an intention to kill unless the words are accompanied by relevant action, e.g. finding and picking up a weapon, and making serious use of it, or making a serious and sustained physical attack without a weapon.
Your argument is that marriage conveys to the married couple an absolute right to reproduce with eachother using any artificial means whatsoever. You then argue that to deny this implies that the Government could prohibit married couples from having babies with eachother through sex. This is nonsense for several reasons.
One. Marriage, clearly, is not the source of the individual right to reproduce in modern times.
a) The only reproduction that the modern state tries to prohibit is incest. Minor are a different issue as the government doesn't care if the minors genes eventually go make a baby, it just wants the minor to be 18 first. Even with incest there is little evidence that the state’s concern is that babies might result (note that incest between sterile partners is prohibited as is same sex incest), but rather the state feels that incest is almost always associated with serious abuse and bans the entire category just to be safe. Your comparison of a “controlling shrew” sister to the type of abuse which characterizes a typical case of incest is simply offensive.
b) Non marital sex is legal in the U.S. (Lawrence in fact explicitly legalized “sodomy” - btw not helping your argument that you aren’t just a bigot by phrasing it that way); non marital reproduction is clearly legal in the U.S., its not like the Government could legally sterilize you if they could reverse it once you got married. Divorce and child support deal with different issues. My wife has a contract that says if I cheat on her she might get more than ½ our stuff in a divorce and the state insists that I support any kids I do have, but neither divorce nor child support says that I can’t knock up any consenting non relative of age.
Two: Even if Marriage was the source of a right to reproduce it is a right to reproduce through sex and not a right to reproduce with the couple’s genes through any artificial means possible. This makes a heck of a lot more sense than your position, as the harm is the genetic manipulation, not the fact that its two dad’s or two mom’s, e.g. you wouldn’t allow a straight couple to reproduce via your science fiction gamete stuff where the scientists swapped it so it was the man’s DNA for the egg and the woman’s for the sperm. In short, there is no right to reproduce with a married couple's genes. Instead, there is a right to reproduce through sex. Hardly a radical position.
Three: Having married gay couples without a meaningful right to reproduce (i.e. only the right to reproduce through sex, which for gay couples is not possible) does not require, or even imply, that straight couples have no right to reproduce. My wife can get pregnant, and has a right to. I can’t get pregnant, but the government doesn’t have to allow me to graft on an artificial womb to myself in order to preserve my wife’s right. Everyone has a right to try and have a kid through sex. If your sexual orientation or the fertility of your partner rules that out, you are out of luck in the rights department. I’d certainly permit IVF, sperm banks, and some other artificial methods, but because I think its good policy - not a right. We may or may not chose to permit cloning/whatever else comes down the pike, but it’s a policy choice not a right. SSM doesn’t change the answer to that question.
As to whether or not I would permit gamete modification – I don’t know. Until you came along I had never even heard of someone wanting to do such a thing. I don’t know if its technically feasible or what side effects it might create or what the alternatives are. You’re a crank and thus not a good source of unbiased opinion on the subject, and I am not going to waste the time to study it myself while it is some fringe science fiction issue. Wake me up when someone actually tries to do it.
Hang on, my argument is that a married couple cannot (or should not) be prohibited from attempting to conceive. Marriage implies approval of the couple conceiving children together. It doesn't mean we can't prohibit dangerous methods. But prohibiting this or that technology does not eliminate any male-female marriage's right to attempt to conceive by other methods, or naturally. If they conceive using their own gametes, it is fine and good: no age limits, no genetic testing, no questions. They are allowed to conceive together using their own genes for as long as they are married. I then argue that to deny any marriage the right in principle to conceive together means that any marriage can be so denied, they all lose the right if any does. Whether they'll be denied it through sex or just other means is an open question decades off from now, the point is, they lose the protection of their conception rights as soon as any marriage is prohibited from conceiving together.
Whether single people have a right to reproduce, or just an appearance of a right through a lack of punishment, is irrelevant. We are talking about married people, for one, and we are talking about people being prohibited from procreating. Those are distinct sets from single people that aren't prohibited from procreating.
There are many reasons we don't allow incest, the point is that where a couple is not allowed to conceive, they are not allowed to marry either. Note that we also ban incest when the siblings were separated as infants and raised for thirty years in separate families, far apart, and did not even know they were siblings.
Lawrence didn't allow fornication or adultery, it only allowed intimate behavior in private, but not sexual intercourse. In my state it is a crime for you to have sex with someone other than your wife, not that it matters for my argument, but I have to contest your stretching of Lawrence to cover things that weren't before the court and were explicitly set apart from the finding.
Even if Marriage was the source of a right to reproduce it is a right to reproduce through sex and not a right to reproduce with the couple’s genes through any artificial means possible.
I agree in principle we ought to be able to prohibit dangerous methods, but in practice there is nothing that is prohibited, because IVF and all the stuff they do now falls under the veil of marital and medical privacy. We just don't know if a couple reproduced through sex or with a doctor's assistance. They certainly have a right to seek a doctors help, don't you think? I can't imagine that being denied. But no one has a right to create a child using modified genes. If the genes are modified, they aren't of any couple anymore, and therefore lose the protection of marital privacy. At that point, it is a lab creating a baby using some raw material, not a marriage having a baby using their own genes.
you wouldn’t allow a straight couple to reproduce via your science fiction gamete stuff
Right, but they would continue to have a right to conceive using their own genes after the science fiction stuff is banned (and it's not fiction)!
In short, there is no right to reproduce with a married couple's genes. Instead, there is a right to reproduce through sex.
I don't know, marital and medical privacy kick in... But even if IVF were banned and all that were allowed were sex, it would still mean that only a man and a woman had a right to conceive together. People should not be allowed to conceive with someone of their same sex, even through sex. The final product would be bad. Society shouldn't approve of people combining non-complementary gametes to create someone.
If your sexual orientation or the fertility of your partner rules that out, you are out of luck in the rights department.
Well, if the sex of your chosen partner or infertility rules it out, you are out of luck, yes. Orientation shouldn't rule it out. All people should have a right to be straight and marry and procreate, whether people want to avail themselves of it is another story.
but it’s a policy choice not a right.
I agree, but it is being claimed as a right by many people. What does Eugene think? Is it a right?
My website www.eggandsperm.org has good unbiased articles on it. There is another pro-SSP website with tons more articles at www.samesexprocreation.com.
When you get married, your spouse frequently gets an interest in part of your property, whether it be the family home or income you earned during the marriage (specifics vary greatly from state-to-state). If a California SSM gave a spouse an interest in marital property, and then a new law took that property interest away, that would be a deprivation of property.
And until a gay couple has one vagina and one penis that's not a problem with this discussion. So again, quit using straw men and quit advertising your site.
Hopefully Professor Volokh will take some time to study the issue. It's professional negligence for the question of conception rights to be left out of this discussion.
Eugene, are same-sex conception rights a necessary part of "equal marriage"?
Perhaps it is this type of nonsensical babbling that makes your position so difficult to comprehend.
click here
He has also said, and I quote "anti-gay bigotry is good". That he said at the Family Scholars blog. Unfortunately, they do not allow comments anymore and have deleted what they did allow. However, I have brought this up before to John and he has never denied he said it.
Regarding "anti-gay bigotry is good", I was probably saying that society should use moral disapproval of homosexuality to help send clear moral messages to help people be straight. But again, it was certainly not an endorsement of violence or taunting or bullying or even discrimination, it was just a rejection of the idea that society cannot act with a preference for people being straight. I think that can be done with tolerance and respect for gay people, and I absolutely reject all violence and I certainly don't call for punishments for homosexuality of any sort.