(This post returns to some points I'd made earlier about the California, Massachusetts, and Vermont same-sex marriage/civil union decisions, and applies them to the Iowa case.)
Like some earlier decisions striking down opposite-sex-only-marriage rules, the Iowa Supreme Court decision helps illustrate what I call "legislative-judicial slippery slopes" — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.
Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision's backers want to argue that the decision is quite narrow. Thus, for instance, consider:
Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law "would lead to acceptance of gay marriages" was "arrant nonsense."
Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: "Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a 'slippery slope' toward [same-sex marriage or domestic benefit] rights."
Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): "Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward same-sex marriages] .... But, this legislation needs to be looked at on the face value of what it is, and it really does very little."
Yet consider how the Iowa Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage (some paragraph breaks added):
A second relevant consideration [in deciding whether discrimination based on a characteristic should be closely scrutinized by courts] is whether the characteristic at issue — sexual orientation — is related to the person’s ability to contribute to society. Heightened scrutiny is applied when the classification bears no relationship to a person’s ability to contribute to society. The existence of this factor indicates the classification is likely based on irrelevant stereotypes and prejudice. A classification unrelated to a person’s ability to perform or contribute to society typically reflects “prejudice and antipathy — a view that those in the burdened class are not as worthy or deserving as others” or “reflect[s] outmoded notions of the relative capabilities of persons with the characteristic.”Not surprisingly, none of the same-sex marriage decisions from other state courts around the nation have found a person’s sexual orientation to be indicative of the person’s general ability to contribute to society. More importantly, the Iowa legislature has recently declared as the public policy of this state that sexual orientation is not relevant to a person’s ability to contribute to a number of societal institutions other than civil marriage. See Iowa Code § 216.6 (employment); id. § 216.7 (public accommodations); id. § 216.8 (housing); id. § 216.9 (education); id. § 216.10 (credit practices). [Footnote: The legislature has further indicated the irrelevancy of sexual orientation by mandating sex education in the state’s public schools be free of biases relating to sexual orientation, Iowa Code § 279.50, and by securing personal freedom from violence and intimidation due to sexual orientation, id. § 729A.1. Likewise, numerous state administrative regulations indicate sexual orientation is not relevant to a person’s ability to contribute to society. See Iowa Admin. Code r. 191-48.9 (prohibiting discrimination in making or solicitation of viatical settlement contracts on basis of sexual orientation); id. r. 281-12 (preamble) (ensuring access to education meeting child’s needs and abilities regardless of sexual orientation); id. r. 281-12.1 (ordering equal opportunity in educational programs regardless of sexual orientation); id. r. 281-12.3 (ordering school boards to consider the potential disparate impact of student responsibility and discipline policies on students because of students’ sexual orientation); id. r. 281-68.4 (prohibiting discrimination in admission process to public charter schools based on sexual orientation); id. r. 282-25.3 (labeling denial of participation in benefits of educational program based on sexual orientation an “unethical practice”); id. r. 282-26.3 (prohibiting licensed educators from discriminating based on sexual orientation); id. r. 641-131.7 (allowing public health department to take numerous adverse actions against emergency medical care personnel who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-131.8 (allowing public health department to take numerous adverse actions against training program or continuing education providers who “practice, condone, or facilitate” discrimination against a patient on the basis of sexual orientation); id. r. 641-132.10 (allowing denial, probation, revocation, and suspension of authorized emergency medical service programs that discriminate on the basis of sexual orientation); id. r. 645-282.2 (prohibiting licensed social workers from discriminating on the basis of sexual orientation); id. r. 645-363.2 (providing that sexual-orientation-based discrimination by sign language interpreters or transliterators is unethical); id. r. 657-3.28 (providing that sexual-orientation–based discrimination by pharmacy technicians is unethical); id. r. 657-8.11 (same for licensed pharmacies, licensed pharmacists, and registered pharmacistinterns); id. r. 661-81.2 (prohibiting entrance of information regarding sexual orientation into Iowa law enforcement intelligence network information system in most circumstances).]
Significantly, we do not construe Iowa Code chapter 216 to allow marriage between persons of the same sex, a construction expressly forbidden in the Iowa Code. See id. § 216.18A (“[Chapter 216] shall not be construed to allow marriage between persons of the same sex, in accordance with chapter 595.”). Rather, we merely highlight the reality that chapter 216 and numerous other statutes and regulations demonstrate sexual orientation is broadly recognized in Iowa to be irrelevant to a person’s ability to contribute to society. [Footnote: Other federal and state authority supports such a conclusion. See Kerrigan, 957 A.2d at 435 (relying on Connecticut statutes banning discrimination based on sexual orientation “in every important economic and social institution and activity that the government regulates”); cf. Frontiero, 411 U.S. at 687 (Brennan, J., plurality opinion) (interpreting congressional protections against gender discrimination as suggesting legislative determination such classifications are “inherently invidious” and implying significance of “conclusion of coequal branch of Government” in deciding whether to apply heightened scrutiny).] Those statutes and regulations reflect at least some measure of legislative and executive awareness that discrimination based on sexual orientation is often predicated on prejudice and stereotype and further express a desire to remove sexual orientation as an obstacle to the ability of gay and lesbian people to achieve their full potential.
Therefore, we must scrutinize more closely those classifications that suggest a law may be based on prejudice and stereotype because laws of that nature are “incompatible with the constitutional understanding that each person is to be judged individually and is entitled to equal justice under the law.” Thus, although we do not interpret chapter 216 to allow same-sex marriage, we rely on the legislative judgment underlying chapter 216 to determine the appropriate level of scrutiny when sexual orientation is the basis for a statutory classification. Based on Iowa statutes and regulations, it is clear sexual orientation is no longer viewed in Iowa as an impediment to the ability of a person to contribute to society.
Similar arguments were made by the Massachusetts Supreme Judicial Court and the Vermont Supreme Court, and by the California Supreme Court, when they decided that their state constitutions should be read as recognizing a right to same-sex marriage (Massachusetts and California) and same-sex domestic partnership benefits (Vermont).
Of course, some people might like this slippery slope, because they like what's on the bottom. (See Deb Price, Marriage Is the Only Acceptable Option, S.J. Mercury News, May 23, 2002: "When Hawaii's steps toward legalizing gay marriage led to a backlash in Congress and many states in the mid-'90s, some gay-rights advocates felt the need to pooh-pooh the 'slippery slope' argument by foes that we'd ultimately try to push beyond any piecemeal rights thrown our way and would be satisfied with nothing less than full marriage. But not anymore. 'Our foes kept saying, 'This is a slippery slope to marriage,' and we kept nodding our heads, 'Yep,'' says [Anne] Stanback, unabashedly embracing marriage as the goal, just as do the movement's two top political groups, the Human Rights Campaign and the National Gay and Lesbian Task Force.") I myself support recognition of same-sex marriage as a policy matter. Still others may disapprove of the bottom of the slope, but might see some of the steps down it as morally imperative.
But it seems to me that decisions such as the ones in California, Connecticut, Iowa, Massachusetts, and Vermont ones illustrate that it's a mistake to just factually dismiss the claims that slippage is possible. When we're dealing with a legal system that's built on analogy and precedent (both binding precedent and persuasive precedent), the possibility of a slippery slope has to be taken seriously.
And this is true even though the past decisions are distinguishable from a future one. Employment discrimination laws, for instance, are not the same as same-sex marriage. Legislative decisions are not the same as constitutional ones. It was certainly possible to draw the line between legislative decisions to ban private discrimination in employment and judicial decisions to ban governmental discrimination in deciding who may marry. That two matters are distinguishable does not mean that they will be distinguished by future decisionmakers. And in fact they may influence future decisionmakers even when the earlier decision expressly disclaims any attempt to accomplish what the later decision did, as was the case with the Iowa antidiscrimination statutes, which expressly said that they "shall not be construed to allow marriage between persons of the same sex." Though they themselves weren't construed as allowing same-sex marriage, they were indeed construed as a data point in favor of a constitutional decision allowing same-sex marriage.
So people who worry about slippery slopes generally — and who worry about slippery slopes in the field of sexual orientation and the law — can't be lightly dismissed. And it is reasonable for them to worry: If we have gotten this far partly through slippery slope effects, will we slip further, and to what? In particular, would this increase the likelihood of further broadening of antidiscrimination laws? Would it increase the likelihood that groups (such as the Boy Scouts) that discriminate based on sexual orientation will be excluded from tax exemptions, just as groups that discriminate based on race are often excluded from tax exemptions? Would it increase the likelihood that such groups will be excluded from generally available benefits?
Would it increase the likelihood of broader restrictions on anti-homosexuality speech — in government-run organizations, or in private organizations coerced by government pressure — by analogy to the broad support in many areas for restrictions on sexist speech? Would it increase the likelihood of restrictions on people's choosing roommates based partly on sexual orientation, or advertising such preferences in "roommates wanted" ads? Would it increase the likelihood of punishment of wedding photographers who refuse to photograph same-sex weddings (even if they have religious objections to participating this way in such ceremonies, and even if they feel that requiring them to photographing same-sex weddings compels them to create artistic works that they do not wish to create)? Would it increase the likelihood that legislatures will repeal religious institutions' partial exemptions from some bans on sexual orientation discrimination in employment?
Perhaps some of this would have already been the case under Iowa statutes — such restrictions are primarily the consequences of antidiscrimination statutes, not of same-sex marriage as such. And the conclusion that the government generally may not discriminate based on sexual orientation is distinguishable from a conclusion that private entities generally may not discriminate based on sexual orientation, or that individuals may not say things that create an "offensive environment" based on sexual orientation.
But as we saw, that two things are distinguishable does not mean that they will be distinguished, and a governmental judgment in one field may be used by other governmental decisionmakers as a reason to push further in another field, whether in interpreting a vague statute, enacting a new statute, or repealing an exemption in an old statute. And such decisions can have effects on other states as well: Consider the Iowa Supreme Court's extensive citations to similar decisions in other states, which I suspect considerably emboldened the Iowa Justices. For some much more detailed and concrete discussion of how the slippage can work -- and I've long stressed that investigating the risk of slippage requires getting detailed and concrete -- see this article I wrote on Same-Sex Marriage and Slippery Slopes that I wrote a few years ago.
So I stress again: Perhaps such slippage would be good, or even if it isn't good, the same-sex marriage decision is so good that it should be embraced regardless of the risk of slippage. But I don't think it's credible at this point to just casually dismiss the possibility of slippage in this area, given how many slippery slope effects we have already seen.
Related Posts (on one page):
- More on the Slippery Slope to Same-Sex Marriage:
- Gay marriage in the heartland:
- Amending the Iowa Constitution Would Take Time:
- Iowa Supreme Court Same-Sex Marriage Decision:
Here's another slippery slope prediction: expression of personally held pro-gay "marriage" views will be fine at work, but expression of personally held traditional marriage religious views will be viewed as harassment. The EEOC will concur with this viewpoint, driving Christians out of the workplace.
Of course, some people might like this slippery slope, because they like what's on the bottom.
</blockquote>
That's one problem with "slippery slop arguments": you have to define which way is down. Here, many religious conservatives link their anti-gay marriage arguments to all sorts of government intervention in the family, including laws banning abortion, contraception, and in vitro fertilization. Religious conservatives also justify their opposition to same sax marriage because they want the law to recognize sex roles in marriage.
Thank God for the <i>steady climb</i> towards legal same sex marriage. If we don't take that step, we risk sliding back down the slope to coat-hanger abortions, a ban on in vitro, a ban on contraception, the criminalization of homosexuality, legal employment and housing discrimination against gays, government coercion against mothers who work outside the home, massive government controls on pregnant women, etc., etc., etc.
I think the key hear is that the institution of marriage, like most "moral" institutions is based on historical distinctions that seem arbitrary when viewed under the lens of non-discrimination. Why stop with only one of those distinctions?
Not that there's anything wrong with the Taliban, of course.
The legislative-judicial slippery slope employed here, though, only touches on one of the four factors the Iowa Supreme Court used, not to determine that the ban on SSM violated equal protection, but rather to determine that the appropriate level of scrutiny was an intermediate or heightened one. So, if your argument is that such slippery slopes matter, this opinion is clearly not a prime example of where such slippery slopes played a dispositive, predominant, or even important role. In fact, even if this second factor used to determine the appropriate level of scrutiny (whether the characteristic at issue ... is related to the person’s ability to contribute to society) was not met by the legislative examples you used (if there had been little such anti-discrimination statutes), the court likely would have found heightened scrutiny to be appropriate given the satisfaction of the remaining three factors (including the predominant first one).
WTF does this refer to? Recognize sex roles in marriage? What does that even mean? Does that mean that the scary religious conservatives want the government to order couples to have the wife barefoot in the kitchen, doing dishes?
Or is this some incredibly euphemistic way of saying that religious conservatives want to limit or end no-fault divorce? Seriously, sometimes the left's newspeak is really confusing.
Of course, the large moderate center can't be given in to! That way, we'd have to make reasonable compromises that would upset the loud minorities that care the most.
This is a larger problem that Ilya has touched upon in his varying posts -- those people that care the most about an issue are usually the last people you want actually crafting policy in that area.
I think you evidently failed to READ EV's post here. The argument isn't whether gay marriage leads to other things, but rather how one area of public policy can affect a court's ruling in another.
This is how it should be though. It is widely accepted that you can't just outlaw coloring hair brown because you think blonds are prettier. You can't then rationalize it on the basis that the state has some illusory interest in maintaining diversity of appearances after the fact.
Generally rational basis review, strict scrutiny, and intermediate scrutiny are all fundamentally based in how a statute fits into broader frameworks of public policy. Thus, if we restricted marriage to those willing and able to have children together, and a ban on childless married couples was bolstered by other policy matters, then same-sex marriage bans would pass more scrutiny than they would otherwise. Hence the slippery slopes that EV is talking about is how legislative policies influence the court's thinking about such issues. This is a fair point, but I would prefer to call it something more like "unintended consequences" because I am not at all sure the slope is slippery per se.
Of course it does. A "slippery slope" arguement is an arguement against a course of action because it might lead to a further negative outcome. "Which way is down" as PD puts it, is defined by the person making the argument.
The point of the post is that a response that further slippage down the slope is fine (or that what the person is arguing is down is really up) might make sense, but dismissing the idea that one action might lead to another can be dangerous.
I think a better example would be courts upholding state bans on gay adoptions because in those states:
1) Only married couples can adopt
2) Otherwise, the gay adoption ban fits in properly with other elements of public policy.
So I would imagine that if we started annulling marriages for childless couples (even if they adopted children), this would weigh heavily in favor of the court upholding bans on gay marriage. If we started denying dependent child tax benefits, welfare benefits, etc to unwed mothers, that would weigh heavily in courts' support for bans on gay marriage.
This is only a slippery slope insofar as people want inconsistent public policy about marriage as it relates to childless couples which are straight or gay.
This is exactly the point that Prof. Volokh was making.
For you, you see not legalizing SSM as creating a slippery slope towards a return to coat hanger abortions, a ban on contraception, etc. etc. YOUR slippery slope is ok to assert, but somehow the slippery slow of allowing SSM may lead to the destruction of the First Amendment, polygamy / polyandry, the desruction of consanguination restrictions, etc, isn't a valid line of thought to pursue?
It is the intellectual dishonesty that is exposed by your own post.
Opinions expressed by voters will only be used by the courts as a determination that the voters are prejudiced and act solely out of malice. So yes, the slope only runs one way.
What if the day comes when the courst are not on the SSM side. What if the courts reversed themselves. Nothing to stop them.
What the court gives it can take away.
So either you didn't know about the prevailing legal climate in the middle of the 20th century, or you are being coy about the manner in which the government sought to dictate the power arrangement between married couples.
Bonus question: when the last state remove the marital rape exception?
Judicial activism which is equivalent to judicial progressivism.
Can you name a single instance where the court (scotus most likely) has reversed a ruling, and taken away a right? The only "right" I can think of that is been completely overturned (at least in part) is affirmative action, and that one is actually likely to take more of a hit now with O'Connor gone.
The rest of the Warren court rulings and also those from the 40s and 50s are all intact. Even today scotus upheld the right to have voluntary confessions thrown out if too much time elapsed between arrest and a court hearing.
This is an very insightful point. Supposing arguendo that the unambiguous will of The People is to accept homosexuals as equal in every sphere of life except marriage (employment, housing, immigration ...) -- does that require that they accept marriage as well? It seems to me that the answer is no, but certainly there could be cases where the public will makes a distinction as to similarly situated people that is so spurious that it cannot be encoded into law consistent with the notion of equal protection.
Holy hell! The gays are going to destroy the First Amendment?
Remember, we surround them.
Morse v. Fredrick
Gregg v. Georgia
Gonzales v. Carhart
Harmelin v. Michigan
That's off the top of my head.
einhverfr,
I was referring to the section of the post where after Hawaii's actions, homosexual advocates denied their ultimate aim to get so-called "marriage."
The death penalty was unconstitutional, and then constitutional again.
Roe v. Wade has been greatly eroded.
Blakely v. Washington has been made meaningless.
Miranda has been greatly eroded.
Spend some time reading what religious conservatives say. Rod Dreher over at Crunch Con writes about the importance of sex roles in marriage, mainly, women staying home and taking care of the kids. Now, there are plenty of good reasons for one parent to stay home with the kids, but given that in the SSM debate, religious conservatives are arguing that the government should enforce their view of marriage on society as a whole, their arguments could lead to reduced protections for women who chose to work outside the home.
Family and Medical Leave Act? Naw, not for women. They should just quit and leave a man's work to a man. After all, mothers who work are taking a job from a man whose a breadwinner. Right>
I think that is a bit of a false question because the scope of inquiry is too small. The question is "what public policy arguments are used to support such a ban and how are they encoded elsewhere in the law?"
I think that would depend on a number of factors including:
1) Do childless couples have equal rights to marriage as couples with children?
2) Are there other areas of public policy where marriage and procreation are closely tied?
3) Are single individuals allowed to adopt children?
The issue is that one cannot discriminate solely against gay couples regarding marriage in so far as it is an arbitrary restriction unsupported elsewhere in public policy. It doesn't only matter whether gays are considered elsewhere to be equal, but rather whether the government's stated interest in the matter is served elsewhere.
Didn't the Court already leave this open in Furman that the states could fix their death penalty laws? Gregg was just the court saying "ok this complies with Furman."
IIRC, the practical effect was very little and came nowhere close to what Thomas and Scalia wanted in overturning Roe.
What exactly did the other two cases overturn? I'm talking about something like Dickerson going the other way.
(Then again, since judges happily ignore the fact that a majority of states have passed laws or constitutional amendments that prohibit gay marriage, I doubt that this will really deter our overlords in black robes.)
Whether or not one supports gay marriage, the methodology used to obtain it is worthy of scrutiny (and, sometimes, criticism). A judgeship is not a license to mold society according to one's liking.
Finally, what's with the ridiculousness about conservatives wanting to legislate that women be in the home? If they really want that, I know that I would be among their first targets - an uppity lady with an engineering degree and a law degree who has zero desire to procreate and be a SAHM - but those freakish evangelicals seem remarkably accepting of me and the way I live my life. Go figure.
And speaking of a slippery slope, here is what Paul Madison says: "Due to Iowa Supreme Court’s activism and lack of judicial competence, the gates are now open to argue the exclusion of pedophiles from marrying potential victims is a form of sexual-orientation discrimination, because it “closely correlates” with being a pedophile."
hmmmm.... not entirely sure. Even as someone who thinks that abortion rights are important both as a matter of Constitutional law and public policy, I think that Roe was one of the worst-written decisions I can think of. Rigid frameworks like the trimester framework of Roe really have no place adjudicating penumbral rights. Roe is almost a textbook case on how Supreme Court opinions should not be written. I think O'Connor's criticism of Roe (that it was on a collision course with itself) ought to be taken more seriously than it is.
If Roe had come out more like Casey, I think things would be far different today. So I don't see a strong erosion of Roe so much as I see the court fixing their errors. Furthermore, things like the partial birth abortion ban were fundamentally MORE CLEARLY Constitutional under Roe than under Casey. So I am not at all sure what sort of erosion of Roe you are talking about.
I think I'll trust 7 of 7 SC Justices over a blogger on the Intertubes.
Wouldn't wanting to overturn a past precedent and hence looking for an opportunity to do so best be described as "judicial activism?"
I'll trust the historical record over what 7 advocates have to say any day.
If Boy Scouts is such a wonderful and character-building experience for those young men who perhaps cannot rely on male family and community members, then why not open it up -- if public facilities and funds are being used -- to those boys who might identify as gay earlier and earlier in life.
If his performance is the same as the others, and there is no flirting/hitting on other boys/sexual talk, etc (nothing in his "performance" that would be disciplined) then why keep him out if he's a good boy based on an immuable character trait? If they do want to discriminate and can pay their way privately (ie/the Catholics), then ok.
I'm not worried about the slippery slope, since I think often what we cling to in defining these arguments (Boy Scouts v. gays) is inaccurate. Better still to think of that good boy who is gay (perhaps with few male role models in the home thanks to single mothers) who is just as qualified as the others to participate actively in the troop, but for that he is different in who he is attracted to.
Ditto the quiet military servicemembers who are what they are, but don't let their sexuality or any performance-related issue affect their work. Why keep them out, if it becomes known who they do what with in their private lives?
Like race before, why not let the homosexuals in, and then keep them out based on outlandish behavior that affects performance, if needed. Sometimes straight guys get pretty out of line sexually too, but we don't keep out a classification based on potential problems -- we discipline AFTER something has been done by an individual, not make the whole group pay the price for something performance related to one.
Be Not Afraid -- as the military mixing of races showed, sometimes our fears are exaggerated, and Americans surely are strong enough to work out any potential problems between individuals, without disadvantaging the group (Korematsu).
Do any of the Volokh conspirators have out gay children?
You are missing the issue. We require that the code of laws serve compelling government interests and apply various levels of scrutiny in determining whether those interests are met.
The solution to the "slippery slope" (it isn't really slippery) is to simply walk the other direction. Restrict adoption to hetero, married couples only. Grant additional tax benefits for children parented by married couples as opposed to single individuals, etc. One could even go so far as to refusing to recognize the marriage as LEGAL until the couple had kids of their own. Certainly these would validate the procreation interest of marriage, correct?
Uh, are you sure that's not just your imagination?
Legalizing polygamous marriage would be more complex than legalizing same sex marriage. The law already knows how to deal with two-person marriage, even two-person marriages with kids from previous relationships or with biological ties to people outside the marriage. Polygamous marriages would require a rethink of pension rights, health care rights, family and medical leave rights, duties between spouses (would each wife owe support to each other wife, or only to the husband?), etc., etc., etc.
Legally recognizing polygamous marriages would be more difficult, but not impossible. Maybe we could use the same rules that applies to all the polygamous marriages in the Old Testament. In any case, legally (and that's the level this debate belongs on), polygamous marriages are very different than two-person marriages.
Let the polygamists make their point if they want to. But so far, the only people making arguments for legalized polygamy seem to be religious conservatives.
Are you trying to say that Scalia and Thomas practice activism regarding Roe but Roberts and Alito do not?
And Scalia would bite your head off.
The problem I have is that the analysis seems a bit retrospective. People back in the 1980s and 1990s may well have expressed worries bout this exact slippery slope...but were they the only worries that people had? How did we know to listen to these worries and not other ones?
To put in another way: suppose Congress wants to pass law X in year Y. Group A says, "no, horrible, if X happens then it will open the door for the sky to fall!". Group B says, "absolutely not! Passage of X will set us on a slippery slope and eventually the Earth will be torn asunder!" Group C says, "X might seem good, but we are worried that it will start awakening the Four Horsemen of the Apocalypse, and who wants that?" Let's suppose that Congress passes the law, and ten years later, in year Y+10, the sky has not fallen and the Earth is not torn asunder, but unfortunately the Four Horsemen are starting to wake up.
Back in year Y, how do we know to ignore group A and B, but to take C seriously? Maybe the answer can be "take them all seriously and do the best you can," and that may work well when there are only three groups. But what about when there are more? Are there more than a few hypothesized slopes around relevant social issues?
If people don't share my faith, that is why marraige is a civil ceremony. If you only get married civilly as a Catholic, that's no sacramental marraige -- no marraige at all -- in the eyes of the Chuch.
What I'm trying to say is, it is possible in America to hold, cherish and preserve your own religious traditions but respecting other individuals too. NEVER should religious tradition, or private definitions, be imposed on society based on some "majority rules" vote.
I have no fears that working alongside homosexuals who are legally married will damage any healthy Catholic relationships, just like working alongside divorced people. We'd never think to keep somebody out based on a divorce, yet we still do think it's ok based on homosexuality.
I think Catholic people are more resiliant than many think. Homosexual marriages won't keep people from the workplace. But discrimination can. And currently that discrimination is against gays, not Catholics. I'll stand up for the Catholics if needed at work, and the homosexuals too. Enough of the devisive in your face actions on either side: large drag queens are no more representatives of the gay community than book burners are of the Catholics who hold their own traditions dear, but recognize their are plenty of others who do not. (Justice Scalia is not representative of the good majority of Catholics, imo. And he should not impose his religious beliefs of what marriage is from the Bench. He should follow legal reasoning, like the IA court did under the Equal Protection of the laws theory.)
I think anti-discrimination laws affect the reasoning of the court regarding the level of scrutiny. However, they would not affect questions of compelling interest. So really you have lots of slopes going different directions and these are not that slippery.
we're not slipping down a slope to the "bottom" with this issue; we're ascending the heights of equality of opportunity for all our citizens as promised in our Constitution, much like we later made those words hold true for our colored citizens.
Either you just completely misunderstood the post or you're just a flat-out bigot.
The only truly activist judge I can find on the court is Scalia. I won't even label Thomas as activist as a matter of mentality, though perhaps on the Roe issue he seems to cross over a bit.
Scalia's opinions always read as far more results-oriented, while Thomas's opinions always read as far more process-oriented.
"Activist" does not mean "one I disagree with" in the context of the courts.
So I would argue that Thomas and Alito have a methodology I disagree with, but that Scalia tends to seek results which is a dangerous thing in a SCOTUS justice.
With respect to SSM, the phrase "slippery slope" is somewhat misleading. "Slope" suggests a continuum of possibilities. The SSM issue is more of an icy staircase. I don't think anyone has trouble distinguishing between traditional marriage and SSM, or polygamy, or incest, or bestiality.
<blockquote>One could even go so far as to refusing to recognize the marriage as LEGAL until the couple had kids of their own. Certainly these would validate the procreation interest of marriage, correct?</blockquote>
Yes, please, let's tie marriage and procreation together by ensuring that every single child is born out of wedlock. Brilliant!
I suppose it's beyond you that people would actually want to be married (for philosophical and pragmatic reasons) <i>before</i> conceiving, and that opposition to the particular methods of achieving homosexual marriage (or civil unions) does not mean that a person believes that marriage and procreation are intrinsically intertwined, or, for that matter, even opposes SSM.
ShelbyC - ?????? If you actually bothered to continue reading my comment, rather than replying with snark, you would have seen that I'm with you on this. Not quite sure what I did to warrant your bitchiness....
In the first case, if there are those who advocate the bottom of the slope, in this case maybe polygamy, then any step towards broadening the definition of mariage will be met with polygamists pushing for the next step. Maybe the slide will be stopped, maybe not, but the slide is occuring, and the slippery slope is not a fallacy.
In the second, you have a strawman aurgument as the bottom of the slippery slope. Because no one actually wants to get to the bottom of the slope, the slope is a fallacy, but really its just a strawman aurgument in disguise.
I have a tough time seeing why same-sex marriages should be legal but not incestuous or polygamous ones.
Sorry.
Hmmm.... I disagree. It seems to me that the analysis of these issues tends to be quite complex and hence while one may have a slippery slope in one area of the analysis, this does not necessarily extend elsewhere.
For example, the exclusion of folks under a certain age from marrying without parental consent might seem to be age discrimination regarding a fundamental right, but the government's interest is bolstered by a whole regimen of laws and common-law traditions aimed at protecting children from being taken advantage of by older and more experienced individuals. If marriage is a civil contract, then folks who are not mentally competent to enter into such a contract would be forbidden from doing so.....
It seems to me that such a blog entry asserting that SSM leads to a lack of age restrictions is employing nothing more than scare tactics.
As to polygamy, I don't see why the government should ban polygamous relationships, as long as everyone is an adult ...
why stop there? if the definition of 'adult' is 18, we are not considering the varying rates of maturity of body and brain for different people. many individuals over 18 are still dimwits while many 16, 17 year olds exhibit the responsibilities (and/or physical development) of adulthood.
so how do you justify your "... as long as everyone is an adult ..."?
I'm not sure this is even a slippery slope.
The way i read the courts argument is that the legislature applied reasoning A to circumstances X, Y, Z to reach desired outcomes. the legislature refused to apply reasoning A to circumstance H for a non-rational reason to avoid outcome M. The court stepped in and said "nuh uh, you can't do that. we'll force you to apply reasoning A to circumstance H also."
that's the court preventing discrimination by the legislature and not a slipper slope argument.
Well, a lot of polygamists happen to be religious and conservative. So that would kind of make sense.
I've seen the several posts similar in content to yours and each time I wonder why people seem to come to the conclusions that you have. I don't think that there are any questions inherent in a polygamist relationship that haven't been answered already, either in the same context (if you are willing to use foreign judicial decisions as guidelines) or in different contexts answering the same questions.
Oh that's right, stated purposes and meaning from constitutional conventions carry no weight as well as courts past history of interpretation. All that matters is what judicial activists have to say today, right?
Social and judicial change takes time. Why you characterize this as a "slip" is unclear.
I'm "anyone," and I have difficulty understanding how people who support gay marriage can have a principled reason for not recognizing polygamous or adult incestuous marriages. If you get past tradition and say marriage isn't limited to one man and one woman, what's the basis for saying marriage can only be two people? If three+ adults want to be together, what's the objection? Similar reasoning for adult incest (and to be clear I'm not talking about relationships with minors); what's the basis for banning it besides recent "tradition," general distaste, and "ick" factor with such relationships? If those factors don't prohibit gay marriage, why should they prevent incestuous marriages?
(Just to be clear, I'm in favor of allowing all three types of marriage, but I don't see how principled distinctions can be drawn among them)
Not necessarily. We could allow legal benefits to take effect immediately when the child is born. However, the point was satirical but meant to illustrate a point.
So, here is my satirical "Protect Marriage Act" proposal for 2009:
But isn't that one form of x slippery slope? That, if you apply reasoning A in circumstances X, Y, Z to reach outcome O, then we have to apply it in circumstance H and have outcome M. So if we want to aviod outcome M we should forego outcome O.
What is the difference between saying that marriage "is a contract" and saying it is "not simply a contract?" It seems that one may say that the contract element would still be relevant in the case of age restrictions, would it not?
Not really. If you want to call it a slope, you have to say that there are a large number of slopes pointing different directions. I would prefer to call it a "sticky web."
Because societies with a large number of low-status unmarried men (but I repeat myself) tend to be intensely socially violent, non-productive, regressive and stratified?
"as long as everyone is an adult"
Are you pedophobic?
"(and that has seemed to be a problem in some of the polygamist sects)."
But only if they have less than a million members or are nice and harmless. If the sect has more than a million members and celebrates chopping heads it get UN protection.
Um, the First Amendment has this idea in it that the gov't won't interfere in the practice of religion. When religious texts are clear about the practice of homosexuality, but yet discriminating on the basis of marriage is illegal, what happens? Some may say that it is a fair balancing act to assert the rights to non-discrminiation over the rights of religious practice, but let's not kid ourselves that this would be a violation of one right (under the First Amendment) in order to assert another (under Equal Protection). The slippery slope leading to such a destruction of the First Amendment is quite apparent, but as most SSM people don't really care about the unintended consequences of reaching their goal, they don't really care about the destruction of the First Amendment.
Your last two posts are excellent and represent how one actually lives out one's faith in the real world. Real marriages are challenged less by gays and more by those, like Reagan, McCain and Gingrich, et al, in the political world, and Bentley, Paulk, Stanley, White, et al, in the church world, who dishonor it by their own actions.
It appears the "bottom" of many of these slopes is equality. Pity the founders were such fools as to actually enshrine that as a goal.
Putting that aside, I'm perfectly willing to entertain exemptions for "religious liberty", but let's be clear. Are we going to consider liberty to discriminate based on ones religious beliefs or liberty to discriminate only against gay people based only on ones relgious beliefs.
Compromising minds want to know.
Perhaps the nuclear family is a useless vestige of an agrarian based society, and really is not necessary or optimal for rearing children. Becoming like Europe, where marriage is steadily dying (except among Islamic immigrants), might be a good thing.
I do not know, myself, but that is the direction we are taking. I tend to think not, but I do not know if my preference there is rational or based on emotion.
demanding consistency on the part of our lawmakers is not a slippery slope. it is a virtue.
But that isn't an argument to ban polygamous relationships by itself. I would argue that that is an argument against recognizing them with legal status.
For example, I see no reason why open marriages should be criminal either, provided that both sides agreed to it mutually and without duress. A logical extension of that is that the couple might be married and might cohabit (and have sexual relations) with other partners (both men and women). But that is a long way away from saying that all partners should be seen as marital partners.
There is a big difference between banning polygamous relationships and recognizing polygamous marriage.
Would you support my satirical Protect Marriage Act of 2009 (above)? Certainly that would provide a strong rational basis argument for banning same sex marriage, would it not?
Ummmm....
My religious texts are full of references to the virtues of vigilante justice and make no direct references to homosexuality at all.
Also is anyone seeking to FORCE churches to marry gay couples? Is the Catholic church forced to marry couples where one or both parties is divorced?
What I suggested was that most people have little trouble distinguishing a group of one man and one woman, from a group of two men, from a group of two women, from a group of more than two people, from group of a person and donkey, etc. Therefore the "slippery slope" does not comprise a series of nearly indistinguishable alternatives.
As for "principled reasons", they have been endlessly articulated. I suspect that you believe your own principles don't admit of distinctions between the alternatives you list, but other people believe other things and hold to other principles.
Who pulls the plow at your house, you or your wife?
I guess I missed the "endless[] articulation."
I wasn't judging the distinctions based specifically on my principles, but rather the arguments used to support legalizing gay marriage. Those arguments (e.g., tradition not sufficient to limit marriages to opposite sex, nor are religious objections, etc.) equally support polygamous and incestuous marriages, among other things.
type, review, post
sigh
Social conservatives have said since the 60s that acceptance of homosexuality would lead to abridging religious freedoms, children being taught homosexuality is OK, and yes, even some posited that same-sex marriage would be an issue.
Regardless how you feel about them, they weren't wrong.
In fact, one of the main reasons people are opposed to civil unions is to curb the obvious slippery-slope to gay marriage that have, to an extent, been used ratchet up the claim to same-sex marriage.
Like someone asked earlier, I don't think it goes both ways. After the MA same-sex marriage decision, thirty states have voted to ban it. That hasn't stopped CT, VT, and IA from ruling in favor of it. People dismiss the unanimous failure of pro-gay marriage amendment at the ballot box, but you know if the tables were turned, and same-sex marriage had been struck down by a handful of liberal judiciaries but had, in large part, been voted for by the people in thirty states, they would be aping the precedence of the prevalence of these statutes.
Also, as noted, its not clear that it was the existence of the intervening acts so much as their reasoning. The court might well have found that reasoning elsewhere, assuming it even needed that for the decision.
I'm told that there are some religious texts out there that are pretty clear that I'ma goin' ta hell because I'm a Jew. Would you say that it violates your 1A rights if you have to, say, allow me to spend the night at your motel? Is it a violation of those rights for you to post a "No Vacancy for Jews" sign?
Just trying to get a handle on your level of consistency.
Whoa, wait a minute. What?
First of all, they've "never felt that procreation was relevant to civil marriage" because procreation, for the vast majority of people, is inherent in them coupling. When a man and a woman sleep in the same bed every night, it doesn't take a soothsayer to determine what's going to happen. For a lot of people, shoot, most people, getting pregnant is something that just happens, even if they don't want it to, or if they planned it ahead of time. Since women are able to reproduce, generally speaking, chances are good it's going to happen with some regularity regardless if they don't go into marriage with the primary intent on doing it.
There are some couples who get by without having children or cannot have children, but it's not really something we can plan for ahead of time. It's not something prevalent enough to warrant spending political capital regulating. Most men and women who are sterile likely don't know it before they're married and/or trying to get pregnant. And trying to regulate marriage based on fertility brings up a litany of privacy questions.
I think we can all acknowledge there's not a dearth of fertile men and women who would want to get married and have kids.
We really shouldn't have to explain how grown-ups work, but here we are.
I think the issue is that rational basis review (and higher levels of scrutiny too) are all fundamentally case-by-case processes. In some states the courts have ruled that gay couples have a right to adopt, and in other states, courts have ruled the other way. IMO, what is different is not the view of the court, but the evidence that the court is addressing in the sense that context matters relative to other statutes. I.e. what is different is not whether gays HAVE the right to adopt as a fundamental right but how such bans fit into other public policy programs.
So I think that EV's point stands, which is that movements to erode discrimination end up eroding discrimination elsewhere because they impact these forms of review by the courts. My suggestion is that if procreation is SO important to marriage, that social conservatives of that specific streak adopt my Protect Marriage Act and seek to have similar statutes passed in every state.
Morse overruled Tinker.
Harmelin overruled Solem v. Helm.
Those were both very strong moves away from a previously declared civil right.
to get to this point, one has to agree that bans on incest have no scientific basis. Would you disagree or agree with that statement?
As for polygamous marriages (we are not talking about polygamous relationships which are not marriages, for example, an unmarried man living with two women and engaging in sexual relations with both), there is a difference between a principled objection and a practical objection. There are big practical objections as well as a few principled ones (based on the impact of polygamy elsewhere in the world where large underclasses of men can't get married and this may undermine social stability). I am not sure if that is a principled or a practical objection to the matter.
Umm... How many plowmen are missing from this equation, sons, etc?
Who walks the linnen at your house? You or your wife?
Am I the only one who finds this typo amusing?
You should read more.
Even if voters have clearly stated at the ballot box that they want an inconsistent policy? I find that very hard to believe that it's a virtue to limit the menu of options to something like.
What's worse, from a political perspective, is that if you tell voters they must chose from the limited menu of either full protection or no protection from gays, they will chose none. If you give them a moderate (but inconsistent, in the sense that it doesn't carry the principle to its logical conclusion) option, they will chose that -- opting to protect gays from discrimination in housing/jobs/immigration.
This is precisely why the extremists on both sides should not be in charge of anything.
Procreation is seen as being one of the core functions of marriage, but don't disregard the sociological point that promoting healthy heterosexual relationships is important for the current, and future generations. I know people disregard things like "natural order" and "social order" as rhetorical pseudo-intellectual flim-flam meant to mask latent homophobia, but...what of it?
It would be costly to the state — for little reason, in most cases — to mandate women and men have fertility tests done before they're issued a marriage license. Even if the people felt that was important, I doubt the state would go for it. And, to be realistic, how would this make same-sex marriage seem like a good idea?
For incest, the problem is that our society expects family members to have certain relationships, interactions, and obligations simply because they are family members. Incest interferes with these. In short, if you break up with your sister, you can't stop seeing her, and if your brother gets jealous, you can't stop seeing him either. And your dad may guilt trip you into painting the house, but guilt-tripping you into sex should not be allowed.
In the particular case of parent/child incest, this also means that the parent has a conflict of interest when raising the child, even if the actual sex only happens after the child becomes an adult.
And to answer some objections:
1) Yes, if two people could have sex with no emotional involvement, either positive or negative, and no effect whatsoever on anything else, there's no problem. Human beings aren't like that (and it's not relevant to incestuous marriages anyway).
2) Yes, I'm aware that nobody has a legal obligation to talk to their brother, help their parents, etc. anyway. But just because we don't mandate it doesn't mean we should be okay with discouraging it.
3) Yes, by this reasoning a parent has a conflict of interest in a lot of other things. But those other things are behavior that we as a society want to encourage. Even if you don't oppose incest, it's hard to say we should encourage incest the same we should encourage children taking care of sick parents.
4) Yes, I know that "adult" means "can make his own decisions". But in the real world there are such things as degrees of pressure and amounts of influence. It's not black and white. It's really not fair to say "if an adult woman's father tells her he won't help her with college unless they have sex, that's her own problem, since she's an adult and any decisions are her own, and he has no obligation to give her a cent anyway".
5) Yes, this isn't based on blood, so laws based on blood need to be fixed. I can't imagine the difference affecting many cases, though, and it still isn't a reason to scrap incest laws entirely.
6) Yes, this might not apply in some unusual, but real, situation. But a lot of laws have those situations--for instance, consider an age of consent law and an emotionally mature person who's under the age limit. The only way to define such laws is to draw an arbitrary line. In some cases you might even be able to write an exception into the law, but again, that's not an excuse to scrap the whole law.
7) Yes, this might not apply in some sci-fi situation either. If that situation ever happens, it might indeed be time to reconsider incest laws; until then, no.
He didn't propose that, he only proposed criminalizing a knowingly-infertile couple that gets a marriage license. Zero cost to the state on that one (arguably, no one would get a fertility test until after marriage, but it's the thought that counts).
This is true.
It's much less divisive to suggest that gays deserve protection from discrimination in the workplace, in housing, and including them in hate crime legislation. There are some hardliners against all those things, but more than likely, they're the freedom-of-association, hate-crime-laws-are-stupid type who don't really support special consideration for any class of person.
But what happens? Liberals overplay their hand, and push moderates to the far right, and then complain about there not being a middle. Those who believe in gay marriage use every tool in their toolbox to make the argument for gay marriage. It's yet another thing about slippery slopes: a lot of socons have resisted gay marriage because its proponents largely point to the social pathologies heterosexuals are largely responsible for. Of course they have resisted those, too, i.e. divorce, quickie marriages, no-fault divorce, our casual sex culture, the idea that women shouldn't at all feel mandated to marry by society, etc. They think gay marriage is just the result of those issues, and people promote it to exacerbate them.
No, in the case of religion, we as a society have determined that that is a an aspect that we would like protected. What is happening with SSM is that it isn't society determining to allow SSM, it is courts determining it IN SPITE of the will of the voters.
Let's look at a related law as it could fall under temporary housing in the case you described above:
The law didn't include people who engage in homosexual acts. In fact a number of times homosexual activists have attempted to put in such protections into related civil rights legislation but were turned down.
And how did he propose we determine whether someone is not only infertile before marriage, but knew it beforehand?
Then I imagine you're pretty steamed about the activist governor in Vermont trying to overturn the will of the people's representatives.
And I also assume that you would embrace SSM, if only gays were a protected class in the Fair Housing Act. Am I right on that?
Here's an almost perfect analogy: in my state it is a misdemeanor to apply for an absentee ballot without an approved reason. However, if you go to the clerk and apply for one, he does not do any verification.
The same exact thing would apply to marriage licenses -- if you apply for a marriage license after knowing that you are infertile, you would be guilty of a misdemeanor. Again, no extra work or expense for the clerk whatsoever.
In many cases, it's easy to prove that someone knew something. He got tested for some disease, he knows he has a genetic abnormality, he's been treated for infertility ...
It's up to the prosecutor to make the case, he'll figure it out.
But I'm curious: how would the state know someone is infertile? Wouldn't doing that violate doctor-patient confidentiality?
I'm not sure this stands up to scrutiny. The movement for civil unions has been overtaken by the demand for SSM because gays were, in too many cases, denied the rights that civil unions were supposed to provide.
Nope, not steamed at all. The VT Gov is a part of the expression of the will of the voters so why would I be steamed about the will of the voters being followed?
No, I wouldn't embrace SSM if it was part of the Fair Housing Act, but I wouldn't have nearly the problem with the process and the unintended consequences that judicial fiat / tyranny has.
But I assume that by your lack of substantive response that you see the wisdom of how religion and rights for people who engage in homosexual acts are different.
Would you care to re-read the post you are criticizing here? What I said was that if you KNOWINGLY applied for a marriage license as an infertile individual, it would be a misdemeanor fraud. No mandated tests, but:
1) If you dont have kids in the first five years of marriage, your marriage license and certificate are held invalid.
2) If in the process you get fertility tests and find out that one party to the marriage is infertile, after that marriage expires, the infertile party would be banned from remarrying.
So zero cost to the state. In fact it would save the state all kinds of money in the form of state assistance to unwed moms and dads.
Well, no, not really. I mean, I do see how a principled argument could be made that one class deserves protection and the other doesn't, because one of those things is a behavior you choose to engage in and the other is just who you are. I don't agree with that argument, but I see how it could be made.
I just don't understand why you think that people who choose to engage in religious practices are the ones in that equation who ought to be protected.
And my proposed answer would be stiff penalties for any non-religious institution that repeatedly fails to accord marriages and CUs the same deference.
Billy kicks Johnny in the balls. Doctors say he's likely infertile. Johnny sues Billy, pleading that medical injury as part of the tort. Johnny marries Sally. The DA indicts Johnny because he knew that he was infertile (according to his own pleading) and got a marriage anyway.
David has Klinefelter's syndrome, diagnosed when he was five. He marries Jessica despite knowing that he is certainly infertile. DA indicts him ....
Reread the first amendment then. I don't like the situation, but it's foolish to think that the Constitution protects homosexuals with the same strength that it protect religious beliefs and institutions.
Sure. It is generally accepted that laws in this country cannot be arbitrary and capricious. This is a fundamental principle to the concept of the rule of law. Also this isn't just a matter of saying "gays are equal in every way except marriage" so much as saying "we don't care about procreation arguments relative to marriage except in relation to the idea of gay marriage." Hence I think the references and slopes are more interest-based than class-based.
At some point, minority rights need to be protected. It seems to me that where there is a desire to discriminate based on alleged interests which are not pursued as a matter of public policy elsewhere in connected ways, those laws should be struck down as fundamentally inconsistent with the notion of a rule of law.
BTW, I have read decisions about whether gays have a right to adopt children from different states which reached very different decisions based on the context of a ban on gay adoption as it related to other aspects of public policy. The slippery slopes are much stronger in areas relative to alleged interests than they are in antidiscrimination laws because those areas are more fundamental to the courts' determination.
Fair enough, and I'm not and won't try to argue that. And I'm not a lawyer, so I have no real interest in getting into a constitutional argument about, well, anything.
Mine was simply a response to the tired argument that homosexuality doesn't merit protection on the basis that it's something you choose to engage in, as scattergood likes to point out. If that argument is true, then religion certainly shouldn't merit protection.
I may be misinterpreting someone's statements here, but I am not sure how requiring the state to recognize SSM discriminates against religious beliefs and institutions. Certainly mandating that the majority religious views should be the primary steering factor in public policy would seem to my mind to run afoul with the prohibition on establishment of religion by the state (as incorporated in the 14th Amendment).
Unless someone is saying that churches should be REQUIRED to perform and recognize SSM as sacred in their traditions... Nobody is arguing that divorced individuals can't legally re-marry or that the Catholic Church would be forced to perform the ceremonies or recognize the marriages in the Church's eyes. Or am I missing something?
I would largely agree with you, but I think EV's point is still a valid one even if it is IMO phrased badly.
The typical slippery slope argument is that in a specific area, there are a number of endless shades of grey and it is not plausible to draw a bright line anywhere in it. Therefore venturing into the grey areas means that it will inevitably lead to fundamentally unacceptable results. I don't see this as EV's argument, so I don't like the term "slippery slope" regarding it.
However, I think what EV is bringing up is a valid point which is that, in typical equal protection analysis, the court's area of inquiry is quite wide, so a lot of laws which had not been intended to have anything to do with the subject at hand tend to be looked at. Therefore a law may have unpredictable consequences as it relates to this sort of thing. The problem with calling this a slippery slope is that one can never really find a place where the slope really is slippery. Furthermore, there are a wide range of factors leading many different directions. If it is a slippery-slope, it is only one in n-dimensional space and that hurts my head thinking about it.....
I think a better way to look at what EV calls the legislative-judicial slippery slope is to see it as the
"legislative-judicial sticky web" instead. Rather than a slippery slope, the sticky web analogy suggests that we will get stuck to the legal consequences of a law and that undercutting one protection may have unforeseen consequences on the topology of the web. So I think the point he makes is somewhat valid, but I don't think it is a slippery slope argument.
I appreciated your sticky web/slippery slope distinction earlier and now, after your fuller explanation, largely agree with you. I wonder what Prof. Volokh thinks?
Advocates of homosexual marriage want to redefine the institution as two people who agree to become financially and emotionally interdependent. Procreation is entirely unrelated. What concerns me is that the nuclear family will become the exception, no longer the rule. There are plenty of studies which show that, on a statistically significant level, children growing up in a stable family with mother and father do better. I am not so sure that moving the default further away from the nuclear family model will result in a positive net outcome to society. As I said, I could be wrong, and perhaps we are well rid of the nuclear family model as an artifact of a long dead agrarian society. That is what the real question is.
What's worse, from a political perspective, is that if you tell voters they must chose from the limited menu of either full protection or no protection from gays, they will chose none. If you give them a moderate (but inconsistent, in the sense that it doesn't carry the principle to its logical conclusion) option, they will chose that -- opting to protect gays from discrimination in housing/jobs/immigration.*
This is why it's all in how you define the issue. If it's a basic civil right to marry and not be discriminated against and have equal protection under the law same as other non-procreating couples, then sorry majority -- in the long run, you don't get a vote on how much to discriminate against a group (whether gays or coloreds) I know if might take a bit to get used to, but society is up to it in America; look at all the things in the past that were going to happen only "over my dead body".
In short, voters don't get to choose which civil rights the Constitution divies out to which groups. Unless there's a basic definable reason to discriminate between homosexuals and non-reproducing hetero's, there's no more justification for the government discriminating. Private and religious groups that are paying their own way are free to teach whatever they like.
Unless you are tackling the no fault divorce statutes, welfare programs that pay the birth costs of unmarried unworking women regardless of family financial need, and media that still encourages the "if it feels good, do it!" level of commitment and responsibility,
it's sure unfair of you to blame the currently existing breakdown of the nuclear family on homosexuals currently free to marry in 3 states.
REally, I'd take on the no fault divorce, and welfare entitlement culture first, if you're truly concerned (as am I) about so many children currently being raised (or not) by taxpayer financed programs, rather than biological parents who created them. Private families that are paying their own way -- generally, I think studies show you see many of the same results as other intact committed indpendent families.
BooBerry,
I'm selling the Brooklyn Bridge today. Do you want to buy it?
Even more importantly, how has non-same-sex marriage been impacted in Massachusetts since 2003? Have straight couples not wanted to get married because the "traditional institution of marriage" has been changed?
It's almost beyond ludicrous to repeatedly have to respond to people who persist in making the same sort of argument about how straight marriage will be threatened when evidence from Massachusetts (and soon to be from Connecticut) squarely demonstrates the complete opposite. Now I think I know what civil rights lawyers in the 50s and 60s felt. Conservative opposition to SSM almost is beneath a response, but alas, you gotta give the people what they want.
You have to give some weight to the founders' decision to explicitly single out religious belief as worthy of protection.
I should have made clear whose post I was responding to. Michael A. Koenecke mentioned the nuclear family as the model of agrarian society. It isn't. The extended family (or community) is.
In the first years of a nuclear family, there are no other plowmen. That was my point, badly made as it was.
Agreed, provided that the relevant equal protection analysis can be met. Society can't *arbitrarily* deny marriage rights to any group.
Religious groups may get extra consideration, but if all voters agreed that, say, redheads should be denied the right to marry simply because the voters didn't want to see redheads in marriages, that wouldn't pass Constitutional muster, nor should it.
The concept of equal protection requires that the claimants be similarly situated yet treated differently. Figuring that out without recourse to normative arguments is entirely futile.
Pretending that the law can be "solved" by some deterministic, value-free calculus is a seductive notion whose allure is tempered only by the fact that it is, in fact, entirely wrong.
A function? Really? I think it's worth testing just how common this perception is. I suggest that at the next wedding reception you attend that you approach the bride and ask loudly, "so, when's the baby due?"
And discouraging healthy homosexual relationships is important, too?
I completely agree with your arguments that SSM does in no way damage or cheapen OSM. Having that belief, however, does not entitled me to ignore the democratic process even though I am right and the opposition is wrong (and it's true, I'm right, their wrong).
I'll chalk it up a Freudian slip.
And the default used to be the grandparents coming to live with the family (and the grandkids) once they were forced with the choice of living alone or their independence was compromised. I don't think the shift to assisted living facilities has been positive either, even from the point of view of childrearing. I am probably in the minority here, but I would much rather have my mother-in-law living with us and helping out with kid care than I would seeing her in an assisted living facility and on her own.
However, a lot of this is outside even the penumbra of what the public policy approach to these issues ought to be. If we are serious about preserving the nuclear family in an important form, we can't just use fading public policy interests which have been abandoned everywhere else. We must bolster those interests so that the distinctions are not legally arbitrary. Let's start by denying state benefits regarding raising children to single parents, for example. Let's allow no-fault divorce but with a two-track waiting period: 3 months if both sides fully agree to the divorce settlement, 1 year if they don't. Heck, let's acknowledge that the first few years of marriage are hard and refuse to entertain ANY claims of divorce for the first 5 years of marriage with the only exception being cases where one party to the marriage was CONVICTED of domestic-violence related crimes.
There are a wide range of things which could be done to help preserve nuclear families which are almost certainly more important than worrying about SSM.
Actually, the analysis is done by looking at public policy decisions and seeing whether the public policy considerations do, in fact, justify this distinction as a part of broader public policy.
This creates what I call the "sticky web" problem, where cutting one rule, or adding another can substantially change the topology of the web well beyond what was originally intended. The laws are all connected to eachother as the basis of public policy.
The courts seem to argue that claimants are similarly situated but treated differently if they are NOT discriminated elsewhere in the same interests, and the reason for the difference between the claimants' treatment in both cases is not entirely defensible. For example if gay couples are allowed to adopt children, that would undermine the idea that gay couples are not similarly situated to straight couples regarding childrearing.
The result is that discrimination in areas not subject to strict scrutiny is allowed if the interest is compelling (with the benefit of the doubt being that it is), and that it is systematically followed.
A good example of a case involving discrimination and strict scrutiny and how such an analysis works is O Centro v. Gonzales which concluded that allowing Native Americans to use peyote but O Centro not to import otherwise illegal drugs did not pass Congress's will that religious freedom should be subject to strict scrutiny as it regards federal law.
So.... the area if inquiry in these cases is very wide and takes into account the entire sticky web of public policy. Normative social arguments are not a part of the analysis directly, but they enter into it indirectly as they affect other areas of public policy.
If the voters pass a resolution that blonds and redheads are not allowed to marry, at what point should the courts strike it down?
"I would much rather have my mother-in-law living with us and helping out with kid care than I would seeing her in an assisted living facility and on her own"
Okay, this is off topic, but are these two scenarios really apposite?
I think the appropriate options would have to be:
I would much rather have my mother-in-law living with -- and taken care of by -- us than I would seeing her in an assisted living facility and on her own.
Funny how you give her the choice of being cared for and being put to work. ;)
(And yes I realize the above grammar is awkard.)
I have a firm conviction that such an arrangement emotionally and physically benefits all parties. So no, I don;t see a problem.
It would be interesting to see how many gay couples raising children choose to remain legal strangers in those states where marriage or CUs are available. I would guess very few.
I know several couples, MM and FF, with children. Not a one chose to forego some sort of legal connection to each other. Some with CUs have chosen to wait for a conclusion to the marriage question in California. They didn't like the legal uncertainty involved in marrying.
On the other hand, I know hetero couples who have choosen not to marry despite having children. I've told them they are fools. Nicely, of course.
Eliminates in both legal and social circumstances the terms "husband" "wife" "father" and "mother". Partner and Parent and Spouse just don't cut it.
Further normalizes queerdom so you get more queers. Inferior lifestyle choices certainly affect others. Reduction is social stability, etc. Rule by homosexuals (common in ancient tyrannies) led to very unfortunate arrangements (think Barney Frank).
As an anarchist, I don't want government to swing either way (and obviously oppose any licensing) but I think affinity groups and proprietary communities should encourage proper behavior.
Both mothers and fathers are a good thing.
"As an anarchist..." Perhaps you mean to say, "As a bigot..."
The alternative idea, that the meaning of rights changes with fashion, and that the courts have their fingers on the pulse of the electorate more than the legislature does, is totally fatuous.
The further idea, that since being homosexual does not impair ones ability to, say, operate, heavy machinery, it therefore implies the constitutionally protected right of homosexual marriage, is nonsensical. Being a felon impairs no abilities, yet rights are denied to ex-cons. By this "logic" I can marry my dog, even if my dog cannot marry me.
The courts claim, that the law was "likely based on irrelevant stereotypes and prejudice" is not and cannot be in evidence. Worse, it attempts to eliminate any consideration whatever of character, personality, morality or decency by the elected representatives of the people.
Can the court be so ignorant as to claim that sexual orientation is "irrelevant" to marriage? If so, how do I have the right to decide whom to marry?
Such a court ought not be respected.
Perhaps you're in the process of drafting an Article or Comment containing your "interpretation" of the Equal Protection Clause. I'd love to see it.
Because in more traditional societies, marriage is an alliance of families cemented by shared offspring. The idea is that men and women are married to seal the alliance between two tribes or families, and the shared offspring end up ensuring that both families have an interest in the alliance.
This is also why we used to have torts like "wrongful seduction" in this country which could be used by fathers to sue his daughter's boyfriends which he didn't like if they didn't stay away.
In the hyper-traditionalist view (where marriage is an alliance between families), the following behaviors are all destabilizing to society:
1) Premarital sex, esp. on the woman's part, because it reduces the interest in the alliance after marriage to the one not bringing children into the marriage. Premarital sex of men is not so heavily looked down upon in these cultures.
2) Divorce (for extremely obvious reasons)
3) Remarriage of widows/widowers esp. where children are involved.
4) Adultery on the woman's part (because it destroys confidence in shared interest in the alliance). Adultery on the part of wealthy males would be more tolerated.
Many societies, from contemporary Ireland to India, from Iran to Brazil show these patterns to a surprising degree. We don't tend to see marriage as part of the extended family support structure, so the social bias against all of the above elements has tended to weaken substantially.
Jeez, sorry. The /claimants in an equal protection lawsuit/ contend that similarly situated people are treated differently. It's not a Freudian slip, it was a simple inversion.
For the decades where she is still functional, sure. Part of my problem with this is that medical technology has been keeping people alive well past their expiration date.
Which is what disturbs me, since many voters will quickly put together the whole anti-gay web before they accept gay marriage. Gays might go double or nothing and end up with nothing here.
At the point at which striking it down will not end up in a backlash that leaves blonds and redheads much worse off than they were in the first place.
Hmmm. The U.S., thought, throughout most of its history hasn't placed as much importance on the extended family. Nor has, say, France. You don't think it has more to do with increased economic diversity reducing the need for gender roles?
(working backward through your post):
See, but this then requires our judges to be politicians rather than referees.
I don't know about that, really. Lawrence really changed the web topology drastically by removing antisodomy laws from being seen as Constitutional. Also it is not the only web involved. Really, the question might well be whether childless (by choice) hetero couples are similarly situated to gay couples. An anti-childless-marriage web might be more effective and meet more compelling interests. In short the barriers are becoming more difficult to meet if one simply sees things as simply an anti-Gay web. Really, to be effective, childless married couples, and unwed parents, would also need to be caught up in the web. People aren't prepared to do this......
Also I didn't get to this part, but:
Well, at least it is not so different from extending the best-if-sold-by dates on salad dressings ;-).
Honestly, a lot of old folks don't have to live in nursing homes for an extended time period. They can live reasonably active lives until pretty much right before the end. My three deceased grandparents did. My point though is about putting folks who need only a little bit of assistance in assisted living facilities because we value independence more than familial interdependence.
Gary,
Rights for blacks were given via Constitutional Amendment and legislative action. Acts which were intended, and were worded as such, to apply to racial discrimination (Brown v Board is an exception). In contrast, the gay rights movement has not proceeded via the democratic process. The gay rights movement uses the courts to take statutory and Constitutional language which was never intended (and the original understanding of the words never allowed) to apply to gay rights.
If gay rights were adopted by popular vote, I would be happy (e.g., I voted against prop8). But when gay rights are crammed down the throat of the citizenry by untouchable robed douches, I object (e.g., I was opposed to the judicial decision which legalized gay marriage in the first place).
This is why the slippery slope only goes in one way. It is not a "climb" towards equality. It is a descent away from democracy and into tyranny. Personally, I prefer a democracy where the majority disagrees with me over a tyranny where the judges agree with me 99% of the time. It's that 1% of the time that the judges disapprove that worries me.
Same question posed to Oren:
If the voters adopted an initiative denying marital status to blonds and/or redheads, at what point should the court strike this down as inconsistent with the rule of law, and with equal protection under the laws?
Huh? It eliminates them from some forms, but the terms "mother," "father," "wife," and "husband" are all in common use to describe gay people with children and married gay people, respectively. You would say "his moms" to refer to the parents of a boy with two mothers and "her wife" to refer the spouse of a gay woman; same mutatis mutandis for men.
A slippery slope is a good thing when you're on a ski course trying to enjoy winter sports.
Why not open it up to girls? Similar issue.
The constant attack on good aspects of our society which offend a small but powerful minority (gays) is one of the most destructive aspect of the culture wars. If gays can't get the use of institutions, they seek to destroy them.
and
Because it won't work, and the military does not exist to meet the needs of every minority that wants in.
They are based on hierarchies of nuclear families, except the polygamous ones.
Yes, it would, if the religious belief extended to offering services to Jews. Personally, I wouldn't want to give any business to that person, and I'm a Catholic.
Also, the religious beliefs of Catholics are actively being denied when gay rightists go after Catholic Adoption Charities.
Once again, if the gay activists can't get what they want, they seek to destroy that which does much good for others.
This juvenile and narcissistic behavior absolutely characterizes the gay activist movement and to a lesser extent the modern progressive movement, which cannot tolerate diversity.
No, they aren't. They are based on extended families. The family in "Leave it to Beaver" was not part of an agrarian family.
There are a lot of things the legal system could do to recognize that procreation is vital to marriage. The legal system doesn't do any of those things. In fact, this "marriage = procreation" concept is so foreign to our legal system that nonprocreative marriage is actually a Constitutional right, see Griswold. Since marriage is a fundamental right under Zablocki v. Redhail and Turner v. Safley, the government probably couldn't make fertility a condition of marriage even if it wanted to.
I find your analysis of slippery slopes to be eye-opening. I don't know how many social systems operate this way, but it is clear that the legal system is way too vulnerable to it.
If you are trying to ski on a truly slippery slope (one you can't possibly climb back up even if you want to), then you had better be an expert. Few ski slopes I have ever skied qualify, and those that did were slippery due to very bad snow conditions (and were hence quite dangerous---my cousin slid 2000 feet down one of the slopes after falling and we had to bring him his equipment. He was lucky not be seriously injured.)
pluribus:
The real problem is that some of us feel that "progressive" is not really good way to look at legal decisions. Legal decisions should be methodologically conservative (not socially conservative, but rather based on conservative methodological principles). What social conservatives are upset about here is that a conservative methodology lead judges to make a decision that they disagree with.
On the plus side, you're always welcome to move to a country where homosexuality is criminalized and throw your support to that public policy venture. Saudia Arabian visas shouldn't be too hard to come by.
Marriage equality is about all citizens being able to license the existing civil contract with their spouse. Currently 50% of citizens are allowed to license it with a male spouse, and the other 50% with a female one, 2 sets of special rights. Yet we know there are citizens who meet all the individual criteria of those allowed to license the contract yet not allowed to license it themselves.
If people actually were attracted to 'opposite' or 'same' genders through some biological mechanism there might be a rationalization for the exclusion but we now know that isn't true. Citizens are only attracted to male and female and some citizens attracted to a gender are allowed to license the civil contract in support of marriage and some are not. Marriage equality gives all citizens the same right to license the existing contract as opposed to the current situation allowing some and not others.
This is qualitatively different from allowing citizens to do something that no one has never been allowed to do before, e.g. have more than one spouse, have a spouse that has more than one spouse, have a spouse that is a near relative.
This is a really bad analogy. If a private party has a good faith conscientious/religious exclusion commandment to providing services to another party, I see no reason that can't be granted some deference. For example, I see no reason that the Catholic Church can't refuse to perform marriages where one or both parties is divorced.
I think though that religious exemptions need to be subject to the same sort of analysis as legal rules in order to determine whether or not the exemption is bona fide or whether it is an after-the-fact rationalization to bad faith policy.
For example, if a Catholic adoption agency were to argue that they should not place children with gay couples on account that children belong with married couples in the Church's eyes, that ought to be given some deference. However, if the same organization is ALSO placing children with couples who got married after one or both of the parties was divorced, then that rationale shouldn't be accepted by the courts.
I also think that in places where religious charities are the primary provider of some services (such as adoption) they should be held to a higher standard of nondiscrimination than when secular versions are easily available.
However, for private clubs like the Boy Scouts of America, I think the fact that freedom of association also implies its reverse is important to remember. Any area not subject to strict scrutiny should be automatically be trumped by freedom of association in these sorts of things (employment is a different matter and I don't think the BSA could get away with refusing to hire women in administrative roles in the organization, such as accounting departments, etc).
As for state recognition of SSM, this needs to be seen as a separate issue from church recognition of SSM. There IS NO discrimination against churches or religious beliefs in stating that equal protection under the laws requires such a recognition by the state.
No one has ever been allowed to do any of those before? Anywhere in the world? Buddhists in large parts of the world have up until the present been allowed to have polygamous marriages, as do Muslims, and Hindus in some areas are allowed to do the same (I think Bali is one place, but Hindus in India abandoned the practice).
Marriage to a close relative has been allowed in some places as well.
I am not saying I disagree with you as far as your main points, but the scope and direction might be able to use some work ;-)
[1] In the sense of "single-partner marriage." The rates of actual sexual exclusivity have never been very high; people cheat on their spouses a lot.
How well can you tolerate diversity? Since you are a Catholic, I wonder how well you have removed the timber from your own eye before looking for the speck in everyone else's.....
Unfortunately there are a lot of folks on this issue on both sides who don't think there should be any diversity. Keep the gays from getting any substantive equality! My religion is the one true way and should be the basis for law in this country! And on the other hand Anyone who disagrees with me is a bigot! Let the people speak and democracy work (as long as it achieves a result I like)!
Of course outside such folk, there are a lot of people on both sides of the debate who are tolerant of diversity, and whose disagreements are genuine policy and methodology considerations.
1. Priests/ministers/imams in religions that do not perfrom same-sex marriages will be forbidden from signing marriage licenses on non-discrimination grounds. A similar precedent has already been set with adoption services, and there's a separation of church and state argument that religious figures shouldn't solemnize civil documents at all.
2. If Don't Ask Don't Tell is repealed, there will be additional conflict with religion in the military. Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service. If the idea that sexual orientation is analagous to race, then military members might be forbidden from joining or associating with organizations that discriminate against gays, as they currently are prohibited from associating with racist organizations. (No more military brats in Boy Scouts.) If applied to religions, then servicemembers might be compelled to conceal their religion if it doesn't accept homosexuality. Think of it as don't ask, don't tell applied to religion instead of sex.
3. If sexual freedom does trump other freedoms and homosexual orientation is a protected class, then the application of sexual harassment law against gays might come into question. Concepts such as hostile environment would restrict the behavior of heterosexual men around women, since women are the protected class. But, in the case of gay men (especially vis-a-vis heteros), there would be no such restriction since gays are also a protected class. This would be especially true if protection for sexual orientation includes rights to sexual behavior.
4. Further down the slope, and more disturbingly, the use of the term "homophobia" to describe opposition to gay rights could lead to politically incorrect views being "medicalized." (This is what happened in the Soviet Union. Since socialism was "scientifically proven," anyone who opposed it (or the government), must be mentally ill.) Once opposition to gay rights is considered a mental illness, children could be removed from "homophobic" households using the same arguments used to remove FLDS children from a polygamous compound. If that sounds farfetched, in Britain, there are already allegations that claim children were removed from families merely to meet state adoption quotas.
Finally, if you don't believe the trend toward sexual freedom will reverse and wonder where the bottom is, just read Brave New World.
No. I apologize, I was far too lax in this pedantic forum. I was referring to the existing US contracts under discussion. If we had polygamous supporting contracts those allowed for some and not for others or some citizens allowed to license with a sibling or parent and not others we would be addressing those too, but as far as I know we don't here in the US.
They only have a right to view THEIR homosexuality as sinful - I mean I can't sin, its impossible - they can't lead me into something that is impossible for me do. Military chaplains are there to serve the needs of the servicemen's religion, not their own.
Yet another reason that children shouldn't be exposed to The Bible. The damn thing is practically obscene. Think of the children!!!
I'm quite sure that Lot's daughters would agree with me. Filthy stuff. Depraved, really.
And? I mean, would that lead to anyone not being able to marry? Oh, wait, they could just go to the clerk's office and then have their wedding blessed.
Actually, I think the state would be unlikely to disfavor any particular religion in that way, since religions can already set further limits on who they marry (e.g., no divorced people in the Catholic Church).
They'd have to either keep marriage licenses wholly in the hands of the state or let clergy, even those who don't perform same-sex marriages.
But compare it to the current situation:
Clergy in religions that approve of same-sex marriages are forbidden from signing marriage licenses for same-sex couples on...
Well, on the grounds that some other religions don't much care for it.
It sounds like the current situation already has some religious liberty problems.
Ummm.... I thought it was settled law that the Catholic Church was not compelled to sign marriage licenses where one or both parties were divorced. Wouldn't that extend to SSM too?
So you are concerned with a conflict of rights, and with equal protection trumping first amendment protections? Where does all this happen with regard to race, gender, marital status, etc?
Only if it gets to the point where it substantively impacts equal opportunity in the work place. IIRC (IANAL), that is the legal standard for sexual harassment claims. Of course, most corporate policies are designed to prevent well-pleaded (rather than simply legally sound) claims from proceeding. This said, I have seen a great deal more actionable sexual harassment in the work place than I have ever seen actions on it, some within respected Fortune 500 companies. The sexual harassment boogeyman is extremely overblown.
It seems to me that you are paranoid that equal protection under the law will fundamentally REQUIRE greatly abridging other fundamental rights. I just don't see that happening in this country.
What happens to religious figures who won't perform different-race marriages (such as Chrisitian ministers who subscribe to Southern racist theology)? Can they sign marriage licenses? Were Mormon leaders allowed to back when Mormonism was a racist religion? Seems to me they should be treated the same way.
Again, seems to me the same treatment given to advocates of racist Southern theology and pre-1978 Mormons would be appropriate, though as a prudential matter we wouldn't want that many servicemembers leaving.
This doesn't make a whole lot of sense. Same-sex sexual harassment is already illegal, including a hostile environment created by members of the same sex. Whether the harassers experience any sexual attraction to the plaintiff is of no relevance.
Are you trying to make yourself sound unhinged? The reference to the USSR is the best part.
From what I gather, the "undesirable consequence" people are objecting to isn't SSM or equality for gays, it's the use of judicial fiat to achieve those ends as opposed to the normal political process. In this view, equality may be a positive, but judicial fiat is an even greater negative, so the consequence is an overall net negative, and therefore it is indeed a "slippery slope" downward - albeit not a very steep one.
Of course, YMMV on this, especially if you believe that (a) it doesn't (or shouldn't) matter how the state arrives at recognizing gay equality under the law, only that it does; and/or (b) complaints about legalizing SSM by judicial fiat are really just code-talk for anti-gay bigotry. If that describes you, you're probably not going to win many folks here over to your POV who don't already share it.
Not exactly. Marriage has obligations for heteros, specifically the male variety, that don't apply to same-sex couples. Presumption of paternity comes to mind. That means that unlike same-sex couples, who must both sign an adoption document, men can be held responsible for any children their wives choose to have. Whether or not they actually fathered the child doesn't matter. So, there are quite rational reasons heteros might choose not to marry.
Also, it is quite possible, probable really, for heteros to have children without a "loving relationship," "desire to share one's life," or even any intent to have children in the first place. Therefore, if marriage is not about procreation, there is no moral imperative for heteros who have children to marry. There is an obligation of fathers to support their children, but there is no longer an obligation that that support must be through marriage.
I don't think that was EV's point at all. I thought his point was that legislation has a habit of informing the judiciary on areas well outside the four corners of that legislation. Hence antidiscriminatory legislation may raise the level of scrutiny the courts give to the issue, erosion of other controls may erode other related alleged interests, and the like.
I have argued that it is not a slippery slope in the classical sense (of undifferentiated cases with no bright line) but rather a "sticky web" based on the connections of the laws based upon common state interests. Add a strand or cut a strand and the topology can shift in ways one didn't foresee.
Presumptive paternity can be challenged. Or in some cases, it can be taken for what may be purely spiteful reasons (see Osborne v. Adoption Center of Choice for an interesting example of how this can play out) in terms of being able to ensure that one can DENY the actual father any paternity rights.
On the other hand, I am pretty sure that in my state I can't go sign adoption paperwork and make sure my wife is forced to support the child.
Also in my state, courts have held that common-law same-sex marriage (formal SSM is not recognized) can result in both support obligations and custody claims.
So I am not entirely sure of the differences here.
Yes, but not my argument. I argued that the Catholic Church could be prohibited from signing any marriage licenses unless they also sign licenses for same-sex couples.
Well, yes. I don't believe the general protections afforded by the 14th Amd should trump the more specific protections in the 1st.
Well, that does seem to be EVs entering argument. The conflict between SSM and religious liberty is explored here as well. While I don't believe the trend toward sexual freedom (or equal protection) will continue (read enduring conservative or liberal majority), I do believe that if it does, conflict with other, more fundamental rights is inevitable.
If the number leaving exceeds the number of gay servicemembers currently discharged under DADT, would that justify DADT? If not, how many servicemembers leaving would? I don't know of any racist theologians in the military, and wouldn't tolerate them if I did.
That is my most unlikely hypothetical. I personally believe that the democratic process will intervene long before that. But, the idea is hardly unhinged. The Soviet Union did treat dissidents as mentally ill, and there is evidence that the NHS in Britain took children into care to meet adoption goals.
I don't understand your argument. Military chaplains are generally required to serve the spiritual needs of all servicemen, regardless of the servicemen's religion, but are not required to change their own convictions.
Not sure what you mean here.
Yes, but it's rather awkward to do so. IIRC, challenging paternity also undermines claims for custody and visitation rights for other children in the family.
Precisely my point. Same-sex couples also can't unilaterally sign adoption paperwork and force their partners to support the child. But with opposite sex couples, women can become pregnant and force their husbands to support the child.
And no is asking them to, its just part of their job to attend to the needs of the servicemen, not promote their own religion on others. They perform Wiccan services, Satanist services, Jewish, all manner of Christian, Buddhist and what ever services. They are a 'Theology Tech', and do what ever theology the service men need. It doesn't matter if they think homosexuality is sinful for themselves if the servicemen they are working for at the moment does not.
Waldo isn't the difference that the churches can treat their followers as their religion dictates? what they can't and shouldn't be able to do is treat people who do not share their religion as if they did.
Don't see how you couldn't - maybe a homily - the right to practice a religion stops at my nose? They can assume whatever they want about the universe for themselves and those that choose to share your views, but they can't treat me as if I share their views. The first amendment right to practice a religion means everyone else has a right NOT to practice it.
So a church can require what ever criteria it wants to qualify for their particular religious rite of marriage with its practitioners. Likewise a church that provides a service to only its members. But when it starts serving people who don't share their faith they have no right to say they aren't qualified if those people don't share their religion.
I've been told by some who were on the fence about gay rights that one of the things that helped push them to a decision was the level of silliness and obstinence displayed by one side or the other in argumentation.
On behalf of gay people, I thank you, John and, just to make you feel better, I'll concede that agrarian societies are, indeed, based on hierarchies of nuclear families.
Gosh, wouldn't it be great if there were a term for such hierarchies!!?!?
Well, I wouldn't argue with your assessment of Benedict as a rightist, but gay? Benedict? I don't think so.
I'm not sure we disagree here. Yes, your right to practice your religion stops at my nose. But beyond our respective noses, anyone should be able to proselytize the Great Flying Spaghetti Monsteras well as any religion that opposes homosexuality. That would be Freedom of Speech.
I don't see what they are from your comment about presumed paternity.
Sorry, but I'd have to say you're being foolish too. Parents living together should marry. In case of death, not being married puts the welfare of the spouse and the children at risk for no good reason.
It used to be settled law that homosexuals couldn't marry either.
Then it slid down the slippery slope
Well, it could happen, since the state determines who can perform the service for the state, but do priests really sign papers for couples they haven't themselves married? The analogy to divorced couples seems entirely apt and it seems like it should allay your fears.
[b]anyone should be able to proselytize the Great Flying Spaghetti Monsteras well as any religion that opposes homosexuality.[/b]
I agree, they can share that their religion says homosexuality is bad, I respond 'Thank goodness I don't practice your religion, now how is my adoption application going?' They have every right to their opinion, they have no right to treat me as if I shared their religious opinion.
Then we disagree.
BTW, you left out the "Therefore, if marriage is not about procreation..." part of my argument that there is no imperative for parents to marry. You can't have it both ways.
But he's really riding on the coattails of our interest in the Iowa decision.
If there is a slippery slope here, it is a civil liberties slippery slope.
Do granting civil rights to a group necessarily lead to granting further civil rights to the same group?
I think this is likely. Certainly history bears it out. Do we call it a "slippery slope"? Well, if we must.
Does this have anything to do with same-sex marriage? Well, only that marriage equality seems to be one of the stops on the path to full equality.
Canada's common-law marriages have tripled since they started including them in the census in 1981, their number of single parents have increased by about 50%. Many poor married couples in the US also do NOT license the civil contract because they lose access to many state benefits and get more odious responsibilities than benefits by licensing it. They don't license it because it costs them $$$$, not because of views on 'procreation'.
Actually, chaplain's views are hardly irrelevant. If they can't express their faith, what's the point?
Also, your view that a chaplain who opposes gay rights will perform a same gender marriage simply illustrates my original point. Chaplains in religions that view homosexuality as sinful will be forced to renouce that aspect of their religious beliefs or leave the service.
In short, I'm arguing the "slippery slope" will lead to chaplains not being able to share that their religion says homosexuality is bad.
If I left out anything when quoting you, it's to save space. As for marriage, it certainly can and often is about procreation. And, old stick in the mud that I am, I think procreation should occur within marriage. So should adoption. In my comment that started this back-and-forth, I mentioned that all the gay couples I know with children got as legally attached to each other as they could before adding kids to the mix.
Maybe its another word problem - how are they 'renouncing' anything by performing a wedding for two people who don't share their beliefs? They can hold that opinion for themselves, they just don't have a right as a chaplain to pretend or require that a soldier share that belief for them to get theological support. Again, they are 'theology technicians' there to perform whatever theological need the soldier requires. By becoming a chaplain they willing took a job that requires that. If they are only going to do the things that support the chaplain's theological needs then they need to be booted anyway, they are pretty useless.
Why don't people quit using this incorrect, pejorative language? Homophobic? Not likely.
Surely you can't be that ignorant of religion! When a chaplain performs a wedding, it is a sacred ritual, not a civil proceedings. Otherwise, get a clerk.
I apologize for the snark.
But I also know two hetero couples who had children and were married. In the first couple, he supported her through grad school and retired early thinking he could stay home with the kids. She divorced him instead, and he later found that his kids weren't exactly biological. In the second couple, she decided that "true love" lay elsewhere and left him with a 4-yr old daughter.
That's probably why I'm also an old stick in the mud who thinks procreation should occur within marriage. But for that to be believable, marriage must, at least in part, be about procreation. And if same-sex couples can marry, I don't believe it is.
'Bigoted' better?
Surely you can't be that ignorant of religion! When a chaplain performs a wedding, it is a sacred ritual, not a civil proceedings. Otherwise, get a clerk.
Surely you can't be that ignorant of a chaplain's job! A chaplain is there to provide theological support for any serviceman whether he shares that serviceman's belief system or not. Otherwise, get out of the service and become a televangelist.
I don't think that is the case in my state, which has very restricted criteria for determining custody and visitation in divorces.
However, if one person in a stable same-sex relationship in my state (which does NOT recognized formal SSM), adopts a child, there are cases where that individual may be able to claim support after the relationship ends or the other party to the relationship may get visitation/custody rights. So this sort of thing CAN happen in SSM's, formal or common-law.
Of course. Hence they are required to perform services of the Church of Satan, the Temple of Set (another neoSatanic organization), various Christian denominations, possibly Jewish, Islamic, etc. servces as well.
Now, if you were a sincerely anti-Gay Christian chaplan, which would you object more to? Performing some sort of marriage for gays? Or performing a Church of Satan ceremony of some kind? Really, I can't see this being a big deal.....
Could we (Constitutionally) forbid the Catholic Church from signing any marriage licenses unless they recognize civil divorce as well? I think that argument is just scare tactics.
Putting 2 and 2:
Funny story. My sister had two marriage ceremonies. A simple, official one with a few people there (me officiating, since I have a mail order ordination), and the big one for show, done by a former minister who decided to resign his position. Fun legal technicalities..... So to a lot of people's point of view I just did the signing ceremony. The public marriage ceremony was done by someone else entirely.
Waldo:
I rest.
Assuming most chaplans are, in their personal convictions Christian, Jewish, or Muslim, wouldn't that already be a big issue? I.e. how many commandments would it break for any one of them to perform a Satanist wedding?
We signed the license.
"Okay, guys, from here on, it's all theater."
When we stood before our families, a few minutes later, we were already married. We put them through a twenty-minute performance piece. (It was lovely, really.)
What makes a marriage real? Your name goes on it and a government official processes it.
The longer the ceremony, the more theater you're getting.
I don't know why - it sounds like you are trying to say that their views on homosexuality would be some sort of 'deal breaker' when they already have to deal with Wiccans, Satanists, etc and 'bite their tongue' while doing so. Yes they would have to continue to do their job, serve all theological needs of the serviceman, just as they've always done in the way they've always done it. They willing gave up the right to practice religion 'just their way' when they signed up.
Why isn't this situation just a variation on a theme that is their chosen profession?
Surely you demonstrate the slippery slope eroding the first amendment rights, with your great approval.
Chaplains are not called upon to violate their religion. That is not part of the job. A Catholic priest is hardly going to provide theological support for homosexual marriages, since they are theologically wrong.
Chaplains are there to provide religious ministry to the troops. That doesn't mean they only minister to co-believers, but they should not have to go directly against their own religion.
Of course, Muslim chaplains will never have that problem, will they? Do you suppose they are required to preside at Jewish weddings? Maybe they should bless a pork meal for Catholics.
Get a clue.
Ha if you'd only take your own advice.
Of course, Muslim chaplains will never have that problem, will they? Do you suppose they are required to preside at Jewish weddings? Maybe they should bless a pork meal for Catholics.
Yes to all the above.
You appear to be getting a clue. Gay marriage isn't the only thing that would be a problem. I realize that to gay activists, their sexual preferences are the most important thing in the universe. To the other 98-99% of the population, there are lots of other things to concern themselves with.
You obviously have never been in the actual military in a situation where there is only one Chaplain for everyone have you?
A Catholic priest is hardly going to provide theological support for homosexual marriages, since they are theologically wrong.
No, its only theologically wrong for Catholics and a chaplain is there to serve all the servicemen, Catholic or not, regardless of his on personal religion.
Yet another reason why I can never be a Left winger. For years they were pooh-poohing Right wingers (like Rush Limbaugh) who used slippery slope arguments. They were so adamant that I came to believe slippery slope arguments showed a weak intellect.
Even though I support gay marriage, I also have to admit...Rush was right.
Procedures and requirements vary state-by-state. There are specific ceremonial requirements in Washington State, for example. I learned all of this regarding performing my first wedding.
Among other things, there have to be vows which require a statement in the vow that each party is taking the other in marriage as the lawfully wedded spouse. Also this has to be performed by a licensed minister or representative of a religious organization licensed by them to perform the marriage or else by certain types of state employees (judges, etc).
Presumably, if they got the words wrong on the vows, one could sue for an annulment at any later time ("he/she never said X as required by law!").
Fun with state laws.....
And this is why, although some slippage is possible as the sticky web shifts, it is hardly a slippery slope as we normally think of it.
Unfortunately, the legal profession appears to not care what the vast majority think, or what thousands of years of precedence has been - when they can move on down the slope.
Have you? I have been, contrary to your assertion.
I'm calling you on that. Show me the rules. Give documentation for a Muslim required to bless a Catholic's pork dinner, eh?
And so what about the thousands of gay couples who today have children? They can't get married, but shouldn't the children have the benefit of having married parents?
If procreation should occue within marriage, then you must be against adoption to single parents, whether they are gay or straight, correct? Why would you think it's better for a child to be in foster care than to be adopted by a loving parent? It doesn't make sense if you claim that marriage is best of the children, but it does make sense if you really don't care about the kids, and care more about discriminating against gays.
John Moore: "I realize that to gay activists, their sexual preferences are the most important thing in the universe."
No. I don't have a sexual preference. I have a sexual orientation, just like you do. I didn't choose to be gay any more than you choose to be straight.
"To the other 98-99% of the population, there are lots of other things to concern themselves with."
I wish. If this were true, then you wouldn't be working so hard to block our right to marry. But to people like you, concerning yourself with gays seems to be extremely important to you. If only you would leave us alone so that we can have our rights, we would all be happy, right?
Vast majority? Hardly. You realize that Prop. 8 lost by only four percentage points, which means that almost a majority supported gay marriage. Nationally, gay marriage is supported by a full third of the country, and civil unions by another third. Together, two-thirds of the US actually supports either SSM or the equivilent for gays. In Mass, the legislature couldn't even muster 25% to consider an overturn of the law.
Additionally, the countries of Canada, Spain, S Africa, Denmark, Holland, Belgium and Sweden allow SSM, and so the 'thousands of years' of prejudice towards gays is slowly being eliminated.
Moreover, the younger generation, by a clear majority, accepts SSM, so that within ten years, or 20 at the latest, a clear majority within the US will approve of it.
And why do they approve of it? Because none of the concerns or issues that people like you raise have been shown to exist in Massachusetts, Vermont, or any other jurisdiction that allows SSM.
BTW, gays are allowed to serve openly in such militaries as Great Britain, Canada, Australia, Israel, New Zealand and many others. Seems they are just as strong as ever.
I have yet to get a non-pejorative answer when I ask someone who has asserted that being gay is a choice when was it that they decided to be straight.
you should see the reaction i get when i ask "at what age did you stop being bisexual and start being heterosexual?" which is essentially the same question.
Sorry about the terminology. Orientation it is.
As for leaving you alone... hey, you sought this fight, not us! You are for changing a definition that has existed for thousands of years, and for forcing that change on a society that is against it.
What you define as rights most of us define as a privilege, one steeped in tradition and tied to our basic biology. Go ahead and be happy. Just don't force Catholics to hire homosexuals or the military to accept them. Don't destroy the Boy Scouts if they won't let in gays. Don't demand an equal marriage for something that isn't an equal situation. If you get the marriage, it *will* lead to the slippery slopes.
I have no problem with arrangements to help with medical situations, etc, for committed gays. But marriage, with the thousands of legal privileges it conveys, doesn't fit and isn't right.
Don't conflate civil unions and marriage. They are different things, as is obvious from the different names.
As for the "progress" in Europe, I don't find that a very convincing argument. Nor do I find those militaries (other than Israel, which is a very special case) to be worth a damn (although the presence of gays is not likely the reason).
So the good sense of thousands of years is slowly rotting away, along with most of the rest of western civilization.
The law takes a different view on the matter. You not merely need to make the commitment, you need to make it obvious.
The state only licenses a civil contract in support of marriage - it can no more make you 'married' than it can make you 'tall' or 'smart' - marriage is a personal choice that develops out of biological mechanism - the state just reacts to that reality by offering a contract in its support.
Not quite. More particularly, the law affects what happens when a relationship ends, by choice or by death. Take a hypothetical situation, a rich old man hires a live-in housekeeper. Eventually the man dies, of natural causes, leaving a large estate. The housekeeper then claims that the two of them were secretly married and she should inherit half of his money. The man's children claim that the housekeeper is making it up and the housekeeper should not get anything. Whatever the courts decide does not merely reflect reality, but determines reality to the extent that that court can enforce its decisions.
Or take the case where a person is in a coma at hospital. Their long-term flatmate claims that the two of them are married, and chooses a very different course of medical treatment to the person's parents who would normally be next-of-kin. The state's decision about who is the next-of-kin is not merely just a reaction to reality, if the court has the power to enforce its ruling and nothing else gets in the way like the person in question dying, the medical treatment changes.
Or take the case of a person who owns a nice flat, took in a flatmate, eventually they quarrel and the owner kicks the flatmate out. The flatmate then claims half the flat on the basis that the two were married, the owner says no such marriage took place, they were just flatmates. Whatever the court decides affects the wealth of both parties, again assuming the ability of the court to enforce its will and other relevant circumstances.
This is a strong argument in favour of the state keeping track of whether couples actually did make long-term commitments to each other. And given the possibility that one party to the marriage may not be able to give evidence in court, requiring witnesses and so forth.
Try asking that question of women, rather than men, and you're going to start getting different answers if you dig hard enough.
Women's sexuality is far, far different than men's and can shift over time. Almost all self-described lesbians have had sex with men, and all one has to do is google phrases such as "lesbian sex with men" or "am I a lesbian" to see the deeply indeterminate and shifting nature of women's sexuality.
Hell, just talk to women who played college sports and you will find example after example of women who considered themselves lesbians at the time and now are married to men and have kids.
A woman's sexual nature is influenced far more by emotional attachment than physical attraction, and looking at the issue solely through the perspective of male sexuality is misleading.
You start off your post with a discussion of what "society expect family members to have." But of course society used to expect only men and women to get married. And in fact, in most parts of the country that's still the expectation. But if societal expectation can't restrict gay marriage, then it follows they should restrict other kinds of marriage as well.
On not being able to see members of your family, many families already don't see each other for various reasons. It's hard to see how allowing incestual relationships would create more difficulties. Indeed, it may have the opposite effect of bringing families (or at least some family members) closer together. These sorts of harm seem as speculative as the supposed harm to "straight marriage" from "gay marriage."
To Bob VB, your argument seems to rest on a narrow definition of "marriage equality." One could just as easily say that once you get beyond standard opposite sex marriages, marriage equality means allowing people to marry whomever they like. For example, people who love only 1 other person currently are favored, while people who love 2 or more other people are discriminated against and treat unequally. The argument for gay marriage would seem to work just as well against this inequality as against a prohibition on gay marriages.
Also your statement that
is just factually wrong, as all of those relationships have been allowed in various communities previously.
Look up the etymology of "Saxon." One might see it as a marriage between two folks who use saxes (alternate spelling: seaxes), which are one-edged knives ranging in length from a small utility knife to a reasonable-length sword.
troy them.
You exhibit the standard fallacy of conservatives: people I don't like are bad.
What is missing is that Gay people are not a "small but powerful minority", but your friends, family, neighbors. We do not seek to destroy society, we seek to be part of it. Your efforts to demonize and marginalize us are what is destroying the good, not our efforts to join in.
You are terrified of facing the reality that we are part of your community, and not "those people".
I never pretend to be an expert on lesbianism. Or women for that matter! However, it just goes to show you that after decades of study, we still do not have much understanding of human sexuality. Which means that looking to a thousand year old book for guidance on this issue, or to religions, is ridiculous.
"As for leaving you alone... hey, you sought this fight, not us! You are for changing a definition that has existed for thousands of years, and for forcing that change on a society that is against it. "
Slavery existed for thousands of years,and in this country since it's founding. I guess when blacks rose up to say no more, you would have said that they sought this fight, not the poor law abiding slave owner. When blacks refused to sit at the back of the bus, you no doubt were saying to them go ahead and be happy, but don't expect whites to accept you as equal. If you get the right to vote, it WILL lead to the slippery slope, and who knows, we might even get a black president.
It's rather unfortunate that you use words such as 'rot' to describe my relationship. It shows that you really think that gays are some sort of decadant being not worthy of basic rights -- no right to serve in the military (despite the fact that 70% of Americans think we should have that right).
I really don't understand what you are afraid of. Society hasn't changed a bit in the places where gays have equal rights and SSM. Unless you can show me what has gone terribly wrong there, you will have a hard time convincing anyone else of the supposed dire effects of SSM.
The judicial system looks at process-oriented questions and precedence has a strong place in that process. Precedence is defined as governing precedent under the stare decisis ("let the decision stand!")[1] principle and so is limited to past judicial decisions provided that there aren't substantive changes which require a different analysis.
So back to my question: If the voters vote overwhelmingly that blonds and redheads shouldn't get the benefits of marriage, what process should the judiciary use in determining whether this violates the very principles of our system of the rule of law?
The thing is, currently they look to two things:
1) Past judicial rulings
2) Public policy defences and how those public policy interests are furthered elsewhere in public policy.
The issue is that the scope of inquiry here is surprisingly large, and changes in laws can substantively affect the second part of the analysis.
I think you are confusing "precedence" with "tradition."
[1] Stare decisis (Latin pronunciation Star-eh de-kee-sees, which nobody ever uses) is both a narrow rule and a broad principle. THe narrow rule is where we see the term used in legal opinions. Under the broad principle, we have a number of other rules such as res judicata and collateral estoppel. The idea is that decisions should respect previous decisions both on matters of law so as to prevent inconsistent and unstable interpretations of the law. The idea is that the judicial system should be predictable.
See -- politicians CAN listen to the people and do the right thing! We didn't need any court decision for 'force it down the people's throats', as is often argued.
So now SSM is legal in four states: MA, CT, Iowa and now Vermont. Next up: Civil unions in Illinois. If you think the slope has been sliding, you ain't seen nothin' yet!
This is the root of the entire issue. The unfounded, and in fact DISPROVED notion that you don't have a choice.
There is zero, let me repeat, zero proof that engaging in homosexual acts is 100% deterministic, like sex or race.
The easiest proof of this is the fact that identical twins are not uniform in their sexual preferences. However, identical twins are uniform in their race and sex.
There is no deterministic factor that would explain changes in sexual partners, married women who leave their husbands and then take other women as partners and then subsequently return to a male partners. There is no deterministic factor that would explain bi-sexual behavior, people who engage in sexual behaviors with partners of both sexes.
Heck, even homosexual activist scientists understand the fact that such behavior is, in their words not deterministic:
But yet, in spite of all the evidence, the courts are granting by fiat 'rights' to a group that is not deterministic like race or sex. This is why the decisions about SSM are tyrannical, because they are done without real scientific support.
Congrats on Vermont!
Today, people have realized that there is nothing to fear from gays. Being gay itself isn't an illness or a problem of any sort either for the gay person or the people around them. I'm out to just about everyone, and I know hundreds of people, and work all around town and the world. No one seems afraid that my 'gayness' will rub off on them. They just treat me like any other person.
And once you realize that gays are people too, you realize that they are deserving of all the same rights as straight people. Not out of charity, but because there is no *reason* to withhold any rights. If an employer really wants to fire a person just for being gay, the problem lies not with the employee, but with the homophobic employer. If the boss can't stand being around gays, it's HIS problem, not the employee's. Consistently, the people who are against SSM (with a few honest exceptions), are the people who think gays are immoral, unnatural, a rot on society and so on. Young people (and many others) don't see that, of course, and see that sort of thinking as itself immoral, unnatural and a rot. The remaining honest opponents of SSM are concerned about unintended effects, which I understand is a legitimate concern. However, as time will prove, the question is whether there are unfortunate effects, and so far, none of have been demonstrated.
Just as today, if you can't live next door to a black person, people think you have the problem, not the black person. Once society comes around to that way of thinking, it's only a matter of time before you fall to the bottom of the slippery slope and treat all gays equally. But to me, that's the height of virtue, not a failing.
Honestly, I don't think that is limited to conservatives. How many folks here want to immediately shout "bigot" or "homophobe" against any and all who oppose SSM?
The fallacy is a human one, not related to political ideology.
I think that other political and social changes are more relevant. The fact is that marriage in many traditional cultures really IS about the extended family, not just the immediate one. In those sorts of cultures we also see very different treatments of men vs women regarding sex outside marriage. For example, in many parts of the world, if a woman gets pregnant before marriage she is considered to be entirely at fault, may be socially ostracized, etc. The father of the child is NOT fundamentally stigmatized over the incident in the same way. Similarly adultery is always caused by (and hence the fault of) the woman in such social views. The reason for these approaches, though they are unjust, is actually quite rational: the alliances of extended families are cemented by shared blood relations and female sexuality unconstrained by marriage is a larger threat to this structure than male sexuality is. On the other hand, male homosexuality is typically more heavily stigmatized than female homosexuality and I think there are a number of reasons for this. For example, the Kama Sutra briefly discusses female homosexual activity as a sexual outlet for women in polygamous marriages (see the D'Anilou translation).
In the US, we have slowly moved from an extended-family-centric society to a very individualistic one. The rate of social change is remarkable and tied to physical mobility, economic security, and a wide range of other things. Moves towards gender equality have also played a role because they have helped to remove some of the vestiges of the extended family protections by destigmatizing single mothers, and equalizing the views on adulterers vs adultresses.
The result is that we now have a tension in society over gay rights and same sex marriage that fundamentally can't exist in, for example, developing countries. In such countries, the economic interests of extended families is still extremely important and the ties between extended families is the primary mechanism of economic security.
So I see economic, social, and technological reasons for the shift. I don't think a simple view of social progression withstands basic scrutiny however.
Laws that were rarely enforced and often entirely forgotten. I think circa the 60s, it became generically acceptable for gays to be gay together in their bedrooms.
Proof is the wrong word. There is a mountain of evidence (of course, one that can never really amount to proof in the sense of 100% deterministic) that homosexuality is at least partially innate. The various documented cases of homosexuality in wild animals are, at the very least, suggestive that there is an element besides culture at work. I will grant that the evidence is not conclusive by any means, but to say that there is zero evidence is just wrong.
One of these things is not like the others.
I have no problem with the conclusion in BSA v. Dale (and I'm somewhat flabbergasted at the 4 Justices in dissent). I have no problem with Congress setting whatever standards (blond hair, blue eyes) for the military, since serving is a privilege. I have no problem with Catholics hiring or not hiring whoever they want (although, I support the IRS's position that giving Bob Jones a tax exemption is contrary to public policy -- they are entitled to their POV, not to a tax break).
When the government decides to step into an arena, however, the rules are different. We forbid the government to do many things that private individuals and organization may do freely.
Did you bother to read what I wrote? Gay activists seek to destroy that which they cannot get to accept them, such as Boy Scouts and the Catholic Church. That is fact, so deal with it.
Second, I don't like gay activists because they act badly towards good institutions, not because they are gay.
You seek to translate my anger against a selfish, destructive group into a dislike and intolerance towards gays as human beings. In that, perhaps you are projecting your own feelings, because you sure don't understand mine.
You are terrified of facing the reality that we are part of your community, and not "those people".
And you think you are a mind reader! Gays are part of my community and my friends. Gay activists engage in destructive behavior towards social institutions, and I despise them for it.
If it's not important to them, why not just let gays have it?
This is usually the argument I make to liberals that insist on removing every somewhat-sectarian invocation to God in the public sphere -- it's something that's very important to conservatives so you should really just let it go, even if you disagree.
THen perhaps they should look at tradition decisus or something, not to mention the laws of the land, the votes of the public, and the constitution. The idea that, based on only those two principles, they can overthrow long held traditions is arrogant and anti-democratic, and a fundamental problem,
They are welcome to their sexual preference or orientation. You miss the point, which is that gay activists are willing to destroy many good things in society if frustrated in their desires to achieve "equality" as they define it.
Furthermore, on the specific issue of gay marriage, you made the best argument against it in your excellent analysis of slippery slopes. Gay marriage, via slippery legal slopes, will lead to important first amendment violations.
A good example is Catholic Adoption charities being forced to choose between their first amendment religious rights and continuing to do their very good works of providing wanted children to loving heterosexual parents. The absolutism of the gay activists would be to force them to provide those children to gay parents, and history shows that gay activists will go to any lengths in order to force that, or to force those charities out of business.
From their actions, those activists have shown clearly that they would prefer that those doing good works who don't accept the dictats of gay "equality" cease doing those good works. That is infantile, selfish and destructive. It is also very clearly demonstrated, even on VK threads.
I am confused. Given the number of benefits paid over military service be sufficient to place this in the category of the government stepping into the arena?
Yeah. It is like my arguments (as a pagan) for allowing 10-commandment monuments in most circumstances. If it is THAT important to you, and you are NOT talking about removing the statues of pagan goddesses from your public buildings, then by all means, have your monument.
Just don't touch the temple to the savior of our country, Abraham Lincoln.... Good ol' Roman apotheosis in action....
I dunno. I would hold them to the same equal protection standards as the government regarding rational basis review. The questions become:
1) What is the stated REASON for the restriction as a doctrinal matter?
2) Is this a reason stated in good faith? Or is it an after-the-fact justification? This is determined by how else the reasons are put in effect. The plaintiff alleging unreasonable discrimination would have to show that this interest is not pursued in good faith.
For example, if you can find a doctrinal reason to argue that hetero couples who do not have sacramental marriages should be allowed to adopt while gay couples should not be, and this division is followed elsewhere, then that is fine. If on the other hand, you argue that sacramental marriages are the only place that children should be placed AND you place kids with Muslim couples, then I would argue that this is not a good-faith reason.
Also, I would be interested to see your take on Catholic adoption agencies in the UK REFUSING to take advantage of religious opt-out clauses in the laws requiring considering gay couples for adoption. It seems that at least in that case, nobody is forcing the Catholic adoption agencies to make the choice you are describing. They are rather choosing to make the choice to discontinue service rather than exercise religious freedom. At least in that case, they have nobody to blame but themselves.
Can you provide another example? The UK example was the only one I could find.
heheh. for a Catholic, your Latin sucks ;-)
Ok.... So I see your concern but I will also suggest that there is something else going on as well.
I think what you are getting at is that there should be a stronger "principle of least surprise" in the judicial process. I tend to agree.
However: State Supreme Court rulings have been all over the map regarding gay marriage. The Washington State Supreme Court upheld the ban for example. Many other states have upheld the ban. This is similar to rulings on gay adoption bans being all over the map too. In general courts DO look to other states for guidance, but this is advisory only and not binding in any way, and it usually does NOT substantively impact the decision IMO.
We have many, many different legal traditions in this country with every state getting their own tradition of Constitutional Law. The Iowa decision laid out clearly how the Iowa tradition of Constitutional Law provides unusually strong equal protection considerations well beyond the normal considerations of the 14th amendment, and how these preceded the 14th amendment.
What is fundamentally wrong with 50 different state traditions of Constitutional Law? What is fundamentally wrong with the judiciary in Iowa ruling that the ban on gay marriage violates the principles of Iowa's Constitutional Law while at the same time, the judiciary in Washington decides that the ban on gay marriage is not in violation of the Washington tradition of Constitutional law?
In the case of anti-black racism, most of the churches and groups that didn't change were destroyed through social pressure (of course those private groups serving the public generally were forced to change by the '64 Act, but bona fide private clubs and the like were not). If anti-gay institutions adamantly refuse to change, I'd like to see the same thing happen.
No, you said those things are unimportant. You can't both claim they are important goods and say they are unimportant.
They have no inherent right to act as agents of the state in mediating adoptions. Performing a quasi-state-function is not exercising their religion -- it's a public service on which the public has a right to impose substantive requirements.
I can't see a 1A issue here.
In the same way, I wholeheartedly support the right of the BSA to exclude gays (terrible policy, of course) but I will not vote to give them any subsidies or use of public buildings -- those just are not entitlements that we have to give out to just anyone. Insofar as the legislature though that the BSA were worthy of subsidies and use of public facilities, they can grant them. If they don't, they won't.
Furthermore, the only case of this happening I could find was in the UK. And in the UK, there WAS a religious objection opt-out clause that the Catholic charities were refusing to take advantage of. At that point, it is no longer a good faith objection anyway.
Worse than that, I won a state-wide Latin championship once. And I was not a Catholic during the Latin years.
So now we're going to get the courts into theological interpretation? Don't you sense things are getting a bit out of hand.
And yes, the objections are clearly doctrinal, not arbitrary.
Note, however, that not all doctrine is held to equal status, for whatever that's worth.
That's a very good principle, but I am looking also for a principle that gives strong deference to traditional values and practices, if the Constitution and law does not speak clearly on the issue.
IMO, courts should not be "advancing" social agendas. That should be up to the legislature (as constrained by one or more Constitutions) as they are closer to the people.
I can only conclude that you put the narrow agenda of gays far above the good that those groups are doing.
The attempt to equate gay activism to the civil rights movement is rather disgusting. Gays today have every right that straights do, and rarely face discrimination.
The issue on gay marriage (and adoption, etc) is related to unnatural (yeah, call me a bigot) situations. I am all in favor of providing gays with appropriate remedies for many legal issues related to marriage, but not all.
As far as the anti-black churches, they still exist. However, it's touch to find solid theological grounding for such behavior. On the other hand, pillars of salt are a good clue about the theological grounding of Christianity's stance on homosexual behavior.
Today, most Christians(not all, of course - it's a large, diverse bunch, but all that I know personally) are not interested in using government to constrain the behavior of homosexuals, except in manners related to marriage and child rearing. Frankly, my personal views on the matter do not come from religion and in fact pre-date my becoming a Christian.
You misread. Adoption agencies, churches and the Boy Scouts are very important.
]
The 1A issue depends upon the way in which the restrictions are placed. If it is through funding, I agree - no restrictions. If it is by judicial fiat, then its a 1A issue.
The public does have the right to affect what their money is spent on, and set conditions on that. If the public chooses to destroy good institutions because of those restrictions, it would hardly be the first time they acted that way.
However, the gay rights movement seeks to do this through the courts, and through slippery slope tricks, rather than through democratic means.
As many do, they cloak themselves in the mantle of the civil rights movement, which is ludicrous.
They further assert (as do many) that court actions in the civil rights movement show the necessity for further fiat actions in other areas. That is treated as a foregone conclusion, when in fact it is very debatable.
Certainly the Roe v Wade and other SCOTUS actions on abortion have had a chilling effect on democracy, creating an enormous split in our society that arguably would not have happened if they had left the matter to the states.
What you are saying is that these entitlements cannot be given out to groups doing a lot of provable good, if they do not conform to the specific requirements of allowing in gays.
This is consistent with my assertion that the gay agenda seeks to destroy that which it cannot have. In your case, legal purism has the same effect, even without the intent.
I think that's terrible policy and certainly has no place being created by judges.
Except that's not what happened.
Here are the major points on the timeline:
1. Catholic Charities, working under a contract with the Commonwealth of Massachusetts is a major adoption provider. They operate under all applicable laws, and place children in the homes of gay people.
2. Goodridge v. Public Health.
3. Catholic Charities is pressured to stop adoptions to gay people.
4. The board Catholic Charities votes to continue adopting children to gay people.
5. The Catholic Church applies more pressure. Board members resign.
6. Catholic Charities ask Massachusetts if they can obtain an exception.
7. Massachusetts says no.
8. Catholic Charities gets out of the adoption business.
The only step that actually involves gay activists is #2. Everything else was either the Catholic Church or the Commonwealth of Massachusetts.
I've never seen anything about Catholic Charities become a private adoption provider. No state funds, but they could restrict their adoptions to Catholics (the LDS do this).
All the pressure came from the Catholic hierarchy. Who forced Catholic Charities out of business? Bishops and Cardinals. And Catholics tend to get very testy when you allege that the leaders of the church are gay.
We can't blame this one on gay activists.
I only seen this a million times. It's not true, but gets trotted out ad infinitum. Please help by not spreading the lie.
3. Catholic Charities is pressured to stop adoptions to gay people by the Archbishop of Boston.
#3 alone is sufficient to make the claim:
The Catholic Church forced Catholic Charities to get out of the adoption business.
Do you think Brown v. Board was wrongly decided in its day?
No. I am thinking of something slightly more deferential than rational basis review. I.e. the difference between a good faith theological argument and a bad one has to do with how it is practiced and taught.
1) We assume that all teachings which are a part of official church teaching are valid bases for policy and
2) We require a basic level of showing that the teachings are acted on beyond the mere scope of question.
For example, consider a gay rights vs catholic adoption agency case. One of these has competent lawyers on the defendant's side and the other does not.
In the first case the defence argues that it is widely accepted church teaching that procreative sex and hence childrearing should only occur inside sacramental marriages. However, the church does NOT argue any particular preference given to Catholic couples over, say, Atheist couples. That would be rightly dismissed because there is no good faith showing that the rationale argued is actually put into practice in any meaningful sense.
In the second case, the defence argues that the church teaches that homosexual activity is a violation of natural law as understood by the church and cites numerous prohibitions against open gays attending seminary schools, etc. This case would be rightly accepted because it is clear that the church is pursuing this teaching in good faith.
Does that distinction make sense? I would expect Catholic adoption agencies to pass such a test with flying colors even if they have first year seminary students instructing the lawyers as to matters of church teaching......
What it wouldn't allow though would be an argument that there is a conscientious objection which is either not found in the actual official teachings of the organization or is not actually put into practice elsewhere.
Simple question: if the gay rights movement hadn't pushed Mass into the position of requiring the Catholic Charities to provide adoption to gays, would the charities still be providing needed adoption services? A yes or no will suffice.
Relevance? Or are you just in a Catholic bashing mood today?
Name one leader of the church who is gay? I know that many have homosexual sexual preference, and the Church doctrine permits that, but only if they don't engage in homosexual (or for that matter, heterosexual) activity.
The fact that the charities violated Church doctrine before that is irrelevant. The Church is hardly monolithic, and the American bishops were too lax for decades (note the homosexual statutory rape scandals improperly called pedophilia). That the Bishops finally repaired their failure to do their duty is hardly relevant to this discussion.
Not being familiar with the details of the ruling, I can't say. I do know that it was unnecessary, althougn it may have been helpful.
But look at the slippery slope it led to. A Federal judge running the Kansas City school districts, ordering specific facilities to be built, and even ordering taxes to be raised to fund it.
Oren talks about slippery slopes. Anti-discrimination law has a steep one, and a lot of crap has slid down that slope.
D
Yes, but things are rarely that simple. Its easy to imagine professors of theology, expert witnesses for both sides, getting into minutae of a faith. Better to give deference to the institution's likelihood of acting in good faith, unless serious evidence appears to the contrary.
In other words, if you set up a "church" to evade taxes and perform polygamous marriages, the state has serious grounds for concern. In established religions, especially the Catholic church with its 2000 years of theological analysis, a strong presumption of good faith should apply.
Well, this is not as cut and dried as it would seem. Let's say Joe and Marry set up the J&M libertarian adoption agency. Let's say they adopt a philosophical rule that they will only provide services to families that swear an oath on a stack of Atlas Shruggeds'. Is it appropriate to automatically deny the, state funds on grounds of bad-faith discrimination? This example avoids 1A and still shows the issues.
Private adoption agencies can operate under whatever principles they choose.
You are stretching the truth out of all recognition by claiming that gay activists had anything to do with Catholic Charities.
If it really were those evil gay activists forcing anyone, why did board members resign over the Church forcing them to stop adoptions to same-sex couples?
The facts just don't support your allegations.
Ok, then let's add to the test that it be a "reasonable interpretation of church teachings and be acted on in good faith."
How do you see evidence of wrong doing in this case? What sort of evidence do you think woudl be required to breech 1A protections?
Sounds like it opens the door to what I forecast.
On the other hand, as I mentioned, how about non-religious organizations. I don't think gay adoption should be forced on any agency. For that matter, unless the agency is wholely funded by the government, or the funding is disproportionately allocated by type/sponsorship of agency, why should the government has much business determining which customers the agency chooses to turn away. As another example, do you think the government should fund agencies which refuse to do inter-racial adoption? Too many of them, supported by the lift ironically, have that restriction.
I offered a simple challenge. You ignored it.
Try again.
Do you really, seriously offer that as an argument. What is your explanation for the board members resignations? Sheesh!
You won't get anywhere. But thanks for trying!
In your view do you think that religious charities get to make up their own rules as they go along? How would you draw the line? Would it be different if the charity is also receiving public funds (in that case doesn't the government have a right to condition those funds)?
If someone running a Catholic charity were to do something truly outragious and unsupported by doctrine like, say, discriminate on the basis of race, do we just expect the church to police this? What if the charity is not affiliated with a church that is as organized as the Catholic Church? Suppose instead it was associated with a group that didn't have a centralized hierarchy?
It seems to me that religious exemptions for services offered to the public ought to require at least a good-faith showing that this is both a reasonable interpretation of church doctrine and that it informs the ACTIONS of the church. Anything can open up bickering between expert witnesses. But I don't think that we should just expect all religions to be able to develop their own traditions of church law, police charities reasonably affiliated with them, etc. At some point some things have to be able to be able to be brought before the courts.
Really it is no different than proving a marriage is a fraud. In that case, one is required to make a good-faith showing that there is an attempt to build a life together.
You can't do something for a long time and then suddenly decide that you can't do so in good faith just because the court issued a ruling you didn't agree with.
Similarly, Catholic adoption agencies in the UK, by REFUSING to file for religious exemptions to placing children with gay families are showing that this is not a good faith objection.
The goal over these issues is to make lots of noise, not to live out one's own beliefs.
Yeah. It is like my arguments (as a pagan) for allowing 10-commandment monuments in most circumstances. If it is THAT important to you, and you are NOT talking about removing the statues of pagan goddesses from your public buildings, then by all means, have your monument.
Just don't touch the temple to the savior of our country, Abraham Lincoln.... Good ol' Roman apotheosis in action....
Then there's the Apotheosis of Washington on the ceiling of the U.S. Capitol dome — with George Washington as the Lord of Hosts gazing down upon us all from on high….
Thanks! Note that the Capitol is not only structured like an old Roman temple, but is named for one too.....
RandyR, that is not only utterly incorrect in characterizing my views, but does not belong on this BBS.
You should be ashamed for uttering such vicious lies.
Good question.
The answer in general is yes, those running charities (or businesses) should be pretty free to make up the rules. Religious charities have an additional freedom due to 1A, which of course is weakened (too much IMHO) by involvement with government funds.
A couple of answers:
If the charity is violating the law, obviously the government may step in to remediate the situation - religious charity or otherwise.
The case of the Boston Charities is an example where the charity was doing something against Church doctrine - providing adoption services to gays. That is why the Church moved in and stopped it.
Beyond that, there is the obvious policy question of what qualifies any charity for it's tax deductible status. Should the Aryan Brotherhood be able to deduct from their taxes contributions to a white-only adoption agency? To me, this is not a settled question. Should a black-only by doctrine church be treated as a religious organization? To me, the answer is obviously yes - if it is genuine.
In the context of the Church, a couple of decades is a very short time. Second, the Catholic Charities were in violation of Church doctrine, because the church is not monolithic and tightly policed - in the short term. It was good faith by the church to stop adoptions, based on religious grounds. Misbehavior by people acting in the name of the church does not change that - even if it lasted decades.
Would you care to explicate? Do you know the details of that case? I do not.
Fatuous nonsense.
If you ignore how in one situation you are just allowing all citizens to do something that others are already allowed to do and in the other you are allowing citizens to do something no one was allowed to do, then yes you can just as 'easily' say that. But who would ignore the differences just to make a point?
Ok, which states offer these contracts? I know that all of them people to license their marriages with their male or female spouse, but none where they are allowed to license multiple spouses, license a spouse that is already contractually obligated, or with a close family member such as a parent, sibling or child.
I must have overlooked the states that allow these things - which ones are they exactly?
Simply not true. In the "one" situation, citizens were NOT allowed to marry members of the same sex. That is a rather significant change, not something "they were always allowed to do."
Ah but citizens are allowed to license their marriage to a male or female spouse which is the attraction basis for the marriage to begin with - that some are in opposite and same gender combinations is an artifact that has nothing to do with the citizen themselves and is not the basis of the marriage itself.
That is an alternate way of looking at the 'opposite' argumentative fallacy which illustrates that citizens are being treated differently. There are no similar alternative arguments for the other cases. So discriminatory licensing based on spousal gender is qualitatively different than the other cases.
A terribly weak assertion, especially in the light of human history and anthropology.
Only if you think either is relevant to the discussion- marriage is a natural biologically based condition and we have never understood its underlying biology better than we do today. The idea the genders are opposites is false, the idea that we are attracted to opposites is false, the idea that 'same gender attraction' is qualitatively different than 'opposite gender' is false. How they used to think it was an intellectual curiosity no more relevant than thinking of earth as the center of the universe, not a basis for equal treatment under the law for the citizen's factors that we now know are truly relevant.
Only if you think either is relevant to the discussion- marriage is a natural biologically based condition and we have never understood its underlying biology better than we do today. The idea the genders are opposites is false, the idea that we are attracted to opposites is false, the idea that 'same gender attraction' is qualitatively different than 'opposite gender' is false. How they used to think it was an intellectual curiosity no more relevant than thinking of earth as the center of the universe, not a basis for equal treatment under the law for the citizen's factors that we now know are truly relevant.
I think there is a heck of a lot more about marriage than just biology. I think that at its root it is a social construct.
You can't say that arranged marriages between royalty in medieval Europe whose sole purpose was to cement alliances had anything to do with biology, for example.
No that just shows that the civil contract of marriage often has nothing to do with the biology - remember, the natural pairing up that humans do, is what's really marriage. That people abuse the civil contract for all manners of things from immigration to political intrigue just goes to show how lax the contract application has been. Hence the laugh in your sleeve reaction when suddenly its all about 'this that and the other' to try and excluded some citizens that are naturally biologically marrying the way Nature's god intended ;)
And I'm 100% behind them.
It is through a requirement set by the legislature for adoption agencies.
There's no legal bar to giving out subsidies to the BSA (e.g.) if that's what the legislature wants. They are free to petition the legislature like any other organization in order to convince them they do more good than harm.
I would vote against subsidizing them because their values are discordant with mine along the same line of reasoning that leads the BSA to refuse to admit gays. If the legislature votes otherwise, I'd be grumpy about it but I respect their right to do so.
Wishful thinking and unscientific nonsense
Typical modern arrogance - use pseudo-scientific nonsense to displace tradition. There are serious qualitative and biological differences differences between same sex and opposite sex relationships.
So how often did they arrange marriages between sons?
Then no legal issue. Still a big social issue (the legislature did harm, but within our society, this harm was arrived at democratically and legally).
So you consider, in a utilitarian sense, that unless the BSA admits gays, we are better off without them?
Sorry my point wasn't clear. Bob was seeming to argue that marriage as a state of living and as a choice of partners was based on biology.
Marriage is usually in most cultures (and this includes polygamous marriage too) a matter of cementing extended families with shared children. Obviously that has a lot to do with biology but the goals are not biological goals in the normal sense so much as economic goals.
You could argue the same that hormones of attraction are biological too. However at its root, biology doesn't define marriage the way culture does.
Fine, show me any proof you want - you are the one saying these differences rationalize discriminatory treatment. I on the other hand know the only difference between a man and a woman need be one gene, the SRY. I know that the male phenotype is an overlay of the base human and can postulate and demonstrate empirically that this overlay can be highly variable. I can show that both men and women can react the same to male sex pheromones. But if you have 'nonsense' that can refute that other than your good looks bring it on.
Typical modern arrogance - use pseudo-scientific nonsense to displace tradition.
Tradition is just a synonym for stagnation. If you can't back up a tradition with other than 'that's the way we've always done it before' then its place is on the garbage heap of history when more complete understanding rears it head.
There are serious qualitative and biological differences differences between same sex and opposite sex relationships.
Bring it on - I have read studies that show that couples marry for the same reasons, go into with the same expectations and even end up bickering about the same things regardless of their gender combination. Since mutual fertility is not a requirement for licensing the civil contract and in fact mutual sterility is a prerequisite for licensing what other difference than mere 'ability to breeding' is there? I mean these are 'serious' differences, surely they will be very simple for you to clearly demonstrate.
As to your issue about the BSA, the are a private religious youth organization with freedom of association as per the SCOTUS and that freedom of association is pretty absolute, marriage equality or not. What benefit don't they have access to that other private religious youth organizations with discriminatory membership requirements do?
Which grows out of the biology. If humans came into heat once a year, bred and the males wandered off we wouldn't have the civil institution of marriage at all (but then probably wouldn't have anything other than what the other mammals that breed that way did either I expect). No we naturally pair-bond, the oxytocin-vasopressin mediated mammalian pair boding response. And because we pair bond, we developed families and extended families. And because we did that we developed laws and customs that quantified it. But regardless the basis of marriage is biological, and as our understanding of biology expands so does our understanding of this natural state of marriage.
Two adults can pair-bond with someone of another gender regardless of their gender combination, they are married. That some are denied license to the civil contract merely because of the gender of their spouse in a country based on the equality of all if its citizen's innate rights is an serious ethical failure of the state and cannot and should not be tolerated.
I am not saying that marriage has nothing to do with biology. I am saying that you can't reduce marriage to a matter of biology.
What do you think about a biological basis then for polygamy? It seems common enough in the world. Is it just that we are biologically superior to folks elsewhere in the world? That we are more in touch with our biology? Or is it a cultural constraint that makes polygamy an issue?
Well a recent study said that among primates the tendency towards polygyny, one male multiple women, is proportional to the size differential between the male and female and as such the human tendency towards polygyny is slight.
Actually around the world polygyny is common, not true polygamy and polygyny, or the situation where only the man can license multiple civil contracts is incompatible with US principles - we at best could only support true polygamy which virtually all male practitioners of polygyny would not want in any way shape or form - the ability of a wife to marry another man? Not even if he was hot, so bringing this up is often a red herring issue at best.
And again, the issue is marriage equality, equal license to the civil contract by the state. Again, the state need license no contract, marriages would still take place. But if it is going to it needs to be available to citizens married to men or women if being married to men or women is going to be allowed. That we had two sets of special rights with 50% of citizens being able to license the contract with their male spouse, and 50% with a female spouse is just 2 sets of special rights, a mistake that can't be justified by saying 'its the way we've always done it before'.
And yes I can reduce our fundamental rights to matters of biology since all of our fundamental rights derive from our biology - that's makes them innate and from the Deist Creator who made a perfect universe and has done nothing in it since. That we misunderstood the biological nature of marriage, that we used to think attraction was to 'opposite' and so attraction to 'same' was wrong, that we used to think that being attracted to someone of the same gender was a vice, but it wasn't when it was to someone of the opposite, is just that - a mistake. Yes I will admit because of these erroneous assumptions most marriages recognized in the past were opposite gender but we know better now. We know its the exact same biological mechanisms at work in a nation of citizens with equal rights - how can they not have the same recognition of the fundamental right to marry by the state regardless of past mistakes by the state?
Would you then agree that marriage equality is incompatible with our normal biological nature? Certainly polygyny as a frequent norm in history, in other primates, etc. would suggest this.
Are women and men created differently as regards the fundamentals of marital institutions?
As for a perfect universe, what do you think of Darwin's objections to the idea?
I'm just so proud of you.
The difference between a schizophrenic and a non-schizophrenic is often a single single nucleotide polymorphism. So I guess they're the same, eh?
Certain aspects of the male and female phenotypes are rarely variable. A high percentage of males have male genitalia, and vice versa. So don't give me this highly variable crap.
Nonsense. Only by your definition. Marriage has long been and continues to be about biology - procreation, the creation of a family and the benefits that brings to the parents and the children. In much of the world, to this day, attraction and love don't enter into it. Fortunately, in our culture they do. However, they don't define it. You are seeking to radically change the long established basis of marriage. Throwing out a few tangential scientific facts and constructing pseudo-scientific conclusions from them doesn't cut it.
No, because marriage equality is about equal access to the existing contract. Creating new contracts is a different issue, as long as all citizens have license to the existing contract with a spouse that they might want another spouse is another issue.
Certainly polygyny as a frequent norm
Really or are you really saying tolerance of polygyny is a frequent norm? Even in societies that tolerate it aren't the majority of marriages between just 2 spouses? But as long as everyone can have one spouse then everyone's fundamental right to marry is being supported and acknowledged by the state, right?
Are women and men created differently as regards the fundamentals of marital institutions?
I can't even parse what that means. 'institutions'? You mean the contracts? There are no gender-specific aspects of the Washington state contract only the licensing criteria.
As for a perfect universe, what do you think of Darwin's objections to the idea?
His objection to the Platonian ideals of a perfect 'essential' and 'perceived' universe? Not even what I'm talking about. 'Perfect' in the sense of the old 60's black light poster 'The universe is unfolding as it should', or maybe the button - "Enjoy Life - this is not a dress rehearsal".
In your view what makes two non-baptised athiests married (opposite sex) which does not relate to two individuals of the same gender?
Is marriage a religious sacrament? A social institution? Both but not with a necessary overlap?
I'm just so proud of you.
You got nothing - check.
Throwing out a few tangential scientific facts and constructing pseudo-scientific conclusions from them doesn't cut it.
While you provide absolutely nothing at all to validate ignoring some citizen's fundamental rights. I'm less than impressed. ;)
No, it is about redefining that contract from its long established meaning (heterosexual union). That isn't equal access - that's revolutionary change.
The marriage contract conveys many privileges related specifically to reproduction: those regarding children.
You can't separate marriage and reproduction, and reproduction involves males and females (although yes, you can use intermediaries - such as sperm banks and contracted birth mothers - to hide the fact).
Equal access to contracts is about biology? Please enlighten me as to how. I asked about our biological nature, which you conceded tended towards polygyny.
Please explain the how the Washington State contract and any other state contract differ and how these are matters deriving from biology.
Also Darwin's objection to the universe being perfect was simply that it can be cruel. His main example was that of parasites which slowly and painfully cause the death of the host organism. Why would a perfect universe contain such needless suffering?
Note I am a Norse Pagan. I do not believe in a perfect universe.
My point about marriage equality is that it is a matter of our ethical and ethnic culture, not a matter of biology. Humans are cultural animals and while you can ascribe a need to culture as possibly having a biological basis, there is NO WAY you can ascribe every possible cultural variation in the world to one which grows out of biology in a deterministic way.
That would be like saying that the differences between English and Spanish are rooted in biology!
Sorry, but you also provided nothing.
Try again - I'm not scared of the jargon. But it would be more useful if it were relevant and significant.
I note you failed to answer my refutation of this (at least in relevance to this discussion):
Likewise you ignored my comparison of your genetic delta to my Schizophrenia SNP.
Try going back and looking at context some time.
My original question was whether men and women were inherently unequal in marriage by Bob VB's admission that polygyny was fairly common both among humans and primates but that it was incompatible with our American values of marriage (in this case gender) equality.
My question to Bob VB was whether human men and women were biologically unequal when it came to marriage, so as to support polygyny as a viable form of marriage but not polyandry.
I don't know what contracts or contract equality have to do with biology but I am sure Bob VB will tell us ;-)
Since you mention Washington State....
Washington State Supreme Court Decision, Anderson v. King County
ISTM that both the Iowa and Washington decisions are good law in their respective states. I am sure I will get howls of disagreement from both you and John Moore.
Slightly and polygyny is a type of marriage but still marriage and is monogamy.
Tell me where we start to disagree:
• We have fundamental rights.
• In the US the state has an obligation to not acknowledge fundamental rights in only some of its citizens.
• If the state is going to license a contract in support of its citizens exercising a fundamental right then all citizens should have some reasonable opportunity to do so.
• While the state can not selectively recognize fundamental rights it can still regulate rights as long as such regulation doesn't result in an effective proscription of rights.
• Licensing a contract only for 2 person marriage limits the potential polygenist but he still is able to exercise his fundamental right to marry with a spouse. Such a restriction could be considered a regulation, not a proscription.
Now IF there were an individual that could ONLY marry multiple spouses there might be an obligation to accommodate but I know of no such limitation or people claiming this as a personal quality. In contrast I know there are people who only marry a particular gender.
That would be like saying that the differences between English and Spanish are rooted in biology!
Yes but English and Spanish are mere intellectual constructs as are culture and law and are not fundamental rights. We could constitutionally ban English or Spanish if we wanted, there are not fundamental to our existence or our natures, unlike marriage which people would do if there was no culture, no government, no religion too. That we tamp that down a bit in no way detracts from the fact we would still at least couple-up - its in our genes.
Hardly, it was decided on the premise the courts can't question the rationalization of the legislature for passing DOMA regardless of how valid they are. It didn't say their reasoning was justified or even accurate, only it wasn't their place to disagree. Most realize that with this line of reasoning we could still have miscegenation laws in Washington too. Its our Dred Scott moment and will just have to be fixed some time in the future. One justice did say that even though the state could limit license to the contract it couldn't limit access to the rights it gave. 'Go to the Legislature and ask for these rights, if they don't give them come back and see us.' Which is exactly what's been done.
Iowa's court obviously said it was their place to decide the legitimacy of the rationalizations and found them wanting. I would much prefer that Washington had followed the same course but the most likely solution there will be a repeal of DOMA in the future by the legislature or popular vote.
Err... I was responding to bob, not you ;-)
I know that the male phenotype is an overlay of the base human and can postulate and demonstrate empirically that this overlay can be highly variable.
That genital variation is a rarer class of variation called Sex-dichotomous than the other class of sex-dimorphic differences that include the attraction and behavior aspects seemed rather irrelevant and embarrassing for you. But if you insist:
"Yes John, some changes are bigger and rarer than some of the other variabilities that can only be seen on post autopsy micrographs and are more likely the kind that cause affectional variation.
Likewise you ignored my comparison of your genetic delta to my Schizophrenia SNP.
That you responded to my assertion that male and female are not opposites but very similar with another example of two things that superficially might seem very different but really are very similar and there for validates my assertion was important for me to bring up why exactly? You are demanding I gloat when you help my case?
BobVB:
Let's start with this one:
That's an overbroad characterization. I would not categorize marriage as a "fundamental right" because I think that it is fundamentally defined by cultural norms. Some cultures may have arranged marriages, give parents or even extended family members veto power, make marriages solely on the basis of political considerations etc.
If marriage truly were a universal and fundamental right, and the right to choose a partner were not, then marriages could and should be arranged by the state through a lottery system to ensure everyone gets to (and must) take a part in this set of rights and obligations.
Also using the US as a reference point for all rights is cultural arrogance at its worst.
FWIW, I think that the only two fundamental rights are the right to one's own culture and the right to be free from undue persecution on account of one's own culture. Everything else is a matter of cultural construct.
How would our essential nature change if we were to, say, Constitutionally ban all languages except, say, Payute (sp?)? To what extent does our essential nature depend both on culture and language? To what extent are our perceptions of fundamental rights based on cultural considerations? If Muslims think that women have a FUNDAMENTAL right to be free from sexual harassment and therefore should wear the Hijab or even the Burka, what do you say to that?
Also I would suggest that you may find the D'Anilou translation of the Kama Sutra interesting from a polygyny perspective because it addresses the effects of polygyny on women's sexuality, suggesting that homosexual outlets were common in India among members of the harems. This suggest to me that there may be more than pair bonding involved in polygyny relationships, and the only reason for seeing them as a sort of radial marriage has to do with alliances cemented by offspring.
In a world without government or religion, we would still have culture. If you take away all elements of culture, you do not have marriage in any recognizable sense, since marriage forms an element of culture. You have marriage customs in fact taking up pretty much a whole quadrant of Heidegger's culture matrix, for example.
IMO, you are seeking pseudoscientific explanations for cultural constructs.
Just trying to correct the context of the objections ;-)
I think that SSM will happen on account of changing culture. I see marriage as fundamentally a cultural construct and one which is tied to other attitudes and interests in culture. I furthermore see the shift from extended-family-centric society to individualistic society as mandating that change.
Bob VB sees SSM as an issue of fundamental rights based on an extrapolation from biology. He sees the world as created perfection by a Deist creator. He seems to think that the modern US is the reference point for biologically based fundamental rights.
John Moore believes that homosexual behavior should not receive any protection or sanction from the state, is opposed to mandates that they should be treated equally in matters of adoption, and worries about gay activists destroying all of our social organizations that they cannot appropriate. He fears that recognizing SSM will result in social instability.
It seems that my main disagreement with Bob VB is a disagreement on the nature of fundamental human rights, which I see as very limited and he sees as, IMO, culturally imperial (i.e. that we have an obligation to export human rights culture from the US to the poor unenlightened souls elsewhere in the world).
My main disagreement with John Moore is that I think that social change over the last 150 years is mandating recognition of SSM, while he seems to fear that SSM (or other same sex sexual relationship) recognition will lead to more social instability. I see SSM as the fulfillment of social trends towards individualism while he sees it as a likely cause of more problems down the road. Like Bob VB he holds that marriage is based on fundamentally universalist attributes. Like Bob VB he seems to hold hat there is one universal truth about the nature of marriage from which cultures cannot deviate without compromising their humanity.
Then we might as well start there - I think the right to marry is up there with freedom of speech. Probably why you are happy with limiting it, you don't think its a right at all.
If marriage truly were a universal and fundamental right, and the right to choose a partner were not, then marriages could and should be arranged by the state through a lottery system to ensure everyone gets to (and must) take a part in this set of rights and obligations.
Like we force people to express their opinions... Yeah, right.
Also using the US as a reference point for all rights is cultural arrogance at its worst.
You're confused, I use biology as my reference point, I'm just in a nation that is based on the principle of the citizens having inalienable rights and can therefore expect the government to act in certain ways.
FWIW, I think that the only two fundamental rights are the right to one's own culture and the right to be free from undue persecution on account of one's own culture. Everything else is a matter of cultural construct.
"One's own culture"? Seriously what is a culture of one person? And what is "undue persecution"? I mean my 'culture of one' involves me being able to license the civil contract of marriage to a male spouse just like 50% of my fellow citizens have the right to do - so would have the right to do that in your system of fundamental rights?
To what extent does our essential nature depend both on culture and language?
Not at all - you can always learn a different language, they are mere tools, ditto with culture - you can have total amnesia, you can have a prefrontal lobotomy, and your rights will still remain even sans culture and language - your rights are reality based, they aren't mental or social constructs.
If Muslims think that women have a FUNDAMENTAL right to be free from sexual harassment and therefore should wear the Hijab or even the Burka, what do you say to that?
If each individual does fine, remember rights are individually based. I mean, give me a cup of 'Muslim' - THAT is an intellectual construct and has no reality. Only people are real, only people have rights, not groups - they are only collections of cooperating individuals.
IMO, you are seeking pseudoscientific explanations for cultural constructs.
And in mine you are grasping at illusions and pretending they are real. Culture is nothing but mental habit and irrelevant to the individual beyond the cooperation they say they will give to others for what others will give to them. In the US this is equal fundamental rights for all citizens and marriage has been acknowledged as a fundamental right coming from beyond government in many rulings.
But I do understand now why we don't understand each other - I don't even think your fundamental rights are really real, and you don't seem to accept the reality based premise of mine.
Oh well...
But you agreed that biologically we are predisposed to polygyny, so I would conclude from that, and the fact that you argue that fundamental rights are based on biology, that polygyny is a fundamental right that the state should recognize. I don't see a biological argument for social equality in your train of thought at all. You jump there as if it is an assumption but social equality (in the sense of full equality) has never been a part of any society ever. It is not found in any community of primates I am aware of either. So one would conclude that equality is a right which comes from our intellectual decisions to recognize it as such (and then only on an abstract level) rather than our biology.
But that wasn't the question.
However, accepting your point arguendo, if you have a prefrontal lobotomy, how you view the world and social connections will likely be profoundly different. Your essential nature changes, at least insofar as your essential view of yourself. In those cases, you might not even be capable of entering into or sustaining a marriage. So if capability decreases there and you still say the essence remains, then I would argue that it is not a fundamental right because it is dictated by, in your words, non-essential functionality.
Now, on to the connections between language, culture, marriage customs, acceptance of homosexuality, recognition of homosexual relationships, etc.
Starting with language and culture.... I would recommend the following as an introductory reading list:
"Language: An Introduction to the Study of Speech" by Edward Sapir.
"After Babel" by George Steiner (discusses the Whorf-Sapir thesis and rebuttals to it).
"Orality and Literacy" by Walter Ong.
Some of these are rather dense reads, but please bear with me on them. If I can read them AND 150 other textbooks in a year when I am not even in school, you can too....
My own view is that the Whorf-Sapir thesis is somewhat flawed in emphasis but not in direction. The main argument of the thesis (which is the subject of the rebuttals to it) is that grammatical and lexical structures alter culture and consciousness. However, even if one disregards that element, it seems to me that semantic structures (and how words are arranged to include meaning) do encode profound differences in how people with different native languages see the world, and hence their culture. I think that grammatical and lexical structures may play a role, but I think the semantic structures are more important in this sort of structuralist analysis. My argument is simple: If people who speak two different native languages describe the same event from points of view which are both fundamentally different and encoded in their language, those different points of view are also encoded in the consciousness of the native speakers.
A second point to bring up here (which is related to biology and fundamentally undermines your point) is that the brain goes through its peak period of growth at the time a young child is learning his/her native language. The brain and cognition grow and develop in the presence of the learning of language, and hence the native language is deeply encoded in any of our attempts to think. If you don't believe me, try to go through the reasoning in your last post entirely without resorting to a linguistic system!
You dodged my point entirely. My point was that one prevalent school of thought in Islam is that women should wear the hijab because this makes them free from sexual harassment and therefore this is a good practice. Another related school of thought holds that men have the right to be free from sexual temptation and hence women should wear such headscarves. Certainly such arguments are based on biology too (sex drives and all that). Certainly they are in the interest of society, as far as reducing adultery, etc. Would you argue that those rights are on the same level as the ones you propose? Why or why not?
We will probably have to disagree with the nature of individual rights. I think that people have a reasonable right not to be unduly persecuted for their culture and that is about it. I think that all other rights exist relative to the structure of the culture.
Also groups do have rights. For example, genocide is more than a bunch of individual murders. It is an attempt to wipe out a distinct cultural group. It is a violation of that group's rights. This is what makes the attempted genocides against Gypsies, Jews, etc. by the Third Reich more serious than the murder of twenty million Chinese men and women by Mao.
One thing one has to understand in the study of the humanities is that no element of human culture is entirely divorced from any other. Linguistic and ethical culture are closely related IMO (and in the opinion of folks like Heidegger), but these are also closely related to both what are called material and ethnic culture. Material culture of course has to do with artifacts which are created, while ethnic culture has to do with, you guessed it, marriage and reproductive customs.
I don't believe there is one true human culture. I don't believe you can look at all human culture and reduce them to imperfect copies of some ideal human culture. However, this is merely offered in the spirit of full disclosure in terms of my argument.
Cultures continue when children are brought up and taught the elements of the culture. All cultures tend to have various rules as to who can have sexual relations, under what circumstances, etc. We can add to that what ceremonies are involved, how childbirth is addressed as a part of the culture, how children are raised, etc. This is all part of the "ethnic culture" quadrant. There are, naturally, many different models of this sort of ethic culture. Irish law recognized polygynous marriages as official marriages, but also recognized some unofficial forms of marriage (for example, rape) which could be polyandrous. Marriage in Irish law was nothing more than a societal pact for support of children, so the "marriage" or rape really reflect the crime as being a matter similar to civil tort, in a way, but these are all lumped together for the purpose of law and determining who is responsible for supporting a child (women were not punished for being victims of rape in Irish law, but they were burned alive for adultery, while men could have as many wives as they wanted).
Similarly if we look at India we see in the Upanishads and in later scholarship hierarchies of marriage all named after mythical figures (Devas, Ghandarvas, etc). These all had to do with how the marriage fit into the extended family structure, who consented, etc. When we look at Livy's founding of Rome, we have the idea of bride kidnapping featuring quite prominently and heroically in the saga. If it wasn't for Romulous's great decision to encourage the practice, Rome wouldnt have survived the Sabine war.
However, it is a mistake to assume that ethnic culture (marriage/childbirth/childrearing) is divorced from ethical culture (ideology) or material culture (things). In India, for example, you have close connections between the Vedas and the types of marriage in the Upanishads, for example. Mythic themes are also mixed with historical ones in Livy's account. So it is futile to try to separate religious view and related ideology from marriage in traditional cultures.
Now, in this country, prior to the new deal, most of the underclasses assured their economic security by elaborate networks of loans within extended families. Such support structures were also found in agrarian families in the south as well. In such family structures, it was imperative that children married well (to those who could contribute to the support of the extended family) and that they had children to cement that alliance. As John Moore notes above, the children cementing alliances was important also going back all the way through Medieval Europe.
However, we have have had a number of both ethical and material revolutions in the last 100 years and these have undermined extended family networks first in the middle class and then in the lower classes and upper classes. These include increased mobility (material culture, the train and automobile), government welfare (ethical culture: role of government), etc. Every one of these changes has undermined extended family networks and pushed us towards an individualist isolation.
The result of these changes is that marriage no longer has implications of duty to one's parents and even aunts/uncles. It is solely a personal choice. How many of us actually support either our parents or parents-in-law in retirement? That used to be the norm. Now it isn't. That change is extremely important in how procreation is viewed relative to marriage. And hence it means that one doesn't HAVE to get married in order to have a secure future. It even means that one could have marriages without having kids.
The end result is that society has changed, and that this change requires as a part of our societal pact to recognize SSM. However it is not a fundamental right and if economic changes occur for the worse, I would expect a reversal of this trend. Acceptance of homosexuality is caused by our prosperity and nothing more. There is nothing fundamental or universal about it and more harm than good would come from forcing such a view upon folks who do not have the same level of economic security that we do.
No groups don't have rights - genocide is a crime against every INDIVIDUAL that knows it has happened, not just the members of the targeted group and not the group itself - groups are mental constructs - they have no thoughts, no feelings, and yes genocide is just a kind of mass murder which is lots of individual's killed.
Would you argue that those rights are on the same level as the ones you propose? Why or why not?
What rights? The right to not be sexual harrassed? Will wearing an article of clothing stop that, or are you saying that only those who wear it earn the right not to be sexually harassed? And the other school - you are saying one individual can demand that other do something because the first is too weak to control themselves - involuntarily enslaving the second? In the first case if a person has a right to not be sexually harrassed they have that right regardless of the clothing they are wearing. And no person can be enslaved by another against their will especially when the first individual is responsible for their own actions. Neither of these are 'rights' of the individual rather the total opposite.
We really see the world in very different ways.
While I don't agree with the cultural relativism implicit in your statements, in general your analysis is acceptable...
The result of these changes is an experiment, yet to run its course, in how the elderly care of and how the children are created and brought up.
The experience of Europe, which has bought into this view the most, is that of cultural suicide. The demographics of western Europe are stark - the people who hold these views and live to it are not reproducing themselves, and will vanish in a couple of generations.
Hence the biological imperatives may be stronger than you think - the new ideas may simply burn themselves out in an extinction similar to that of religious cults which allowed no children at all.
You need to grow up and recognize that no matter how many times you shout something, it doesn't make it a fact.
SSM may or may not become a norm, but your reasoning is irrelevant to it, and your attempt to hijack the term marriage through redefinition is illogical.
Is there a right not to be sexually harassed? Is it more fundamental than a right not to be ridiculed for the color of your eyes or for having a lisp? I so no right there.
That is actually a part of the rationale. The idea is that if women don't dress in a sexy way, they won't be treated as sex objects. It isn't really that different from the sense of libration some Catholic nuns say they found in wearing the habit.
Thanks.
We are actually seeing the same thing in Latin America. A few years ago I attended a Spanish school in Quito, Ec. and lived with a family there for about 4 weeks. One of the interesting point which came up was that the average age of marriage in Ecuador among middle class families (making $3000 per year) is about 28. The average number of children is now down below 2.
Europe is an interesting case because the birth rate has become so low that it has become necessary to bring in larger numbers of immigrants than is the case in this country. I personally am hopeful that the US will not reach this point (per capita land use is far higher in the US, number of children is still below 2, but not drastically so), so Europe may be in a viscious circle where the environment (densely populated) ends up leading to a low birth rate, and the low birth rate leads to high immigration to support the economy, etc. That does not look good to my outside view. In the US we are not nearly as densely populated (we have about half as many people in the US as the EU has). So hopefully it won't get to that point.
However, I think that there is an answer here. I think the key is to "retribalize" and form smallish units which seek to build our own lives and interpersonal connections based on models we see in the past which we seek to emulate. This means you are free to look at whatever models you wish to look at and I may look back to other models. At the moment however, the key point IMO that needs to be addressed is how each of us chooses to care for our aging relatives and instill such values in our children. In the end whether the state recognizes a legal relationship or not between other people doesn't and shouldn't address this process.
Birth control is also a significant factor. Even in the Catholic community, a majority use birth control (which is seriously against Church doctrine). Hence the stereotypical large Catholic family is more and more rare.
Ironically for many on the left, the decline in birth rate is strongly correlated with economic improvement. Thus the environmentalists who complain about the waste of capitalism don't realize that it is the biggest factor in reducing the growth rate of the human race - in fact, projections cap human population in the next 100 years or so.
BTW, last I checked, US fertility rate was 2.1, not below two. The "replacement" rate is around 2.3.
When I studied environmental modelling in college, this was one of the factors I looked at (education, population change, wealth) and concluded that these three were closely interconnected.
I think that birth control and modern medicine go hand in hand. Without birth control, modern medicine would end up leading to massive overpopulation, famines, and environmental catastrophe.
Sure, feel free to email me.
A note on genocide and culture though: It seems to me that I am not unduly harmed by knowing that Stalin tried to wipe out the Kossacks or Hitler tried to wipe out the Gypsies. I don't see why I am a victim of genocide in those cases. I think you are just going through logical gymnastics in order to avoid the fact that you are trying to enshrine cultural biases in pseudoscience.
This is wandering off topic, but one of the perpetual arguments that occurred in Scandinavia regarding the conversion was the legality of exposing infants to death prior to their naming and ceremonial inclusion in the family (i.e. in the first 8 days after birth). In fact, in Iceland, the compromise was that Iceland would convert provided that such practices continued to be legal. Such practices were widespread in the ancient world, as I am sure you are familiar with. Many tales tell of kings who were abandoned to exposure who were later rescued (some tales bear a striking resemblance to the story of Moses). These include:
1) Scaef Scylfing (Beowulf)
2) Romulus and Remus (Rome)
3) Cyrus (Herodotus' Histories)
#2 and 3 seem close enough in the story to be directly comparable (abandoned, raised by "she-wolf" or "bitch," found a great state), and in all cases it is almost impossible to sort myth and legend from history. However structural analysis of the stories is quite interesting.
There are almost certain to be more comparable stories than I have found thus far.
Yet another reason that children shouldn't be exposed to The Bible. The damn thing is practically obscene. Think of the children!!!
I so agree. I recall sitting in a Sunday school class and reading ahead a bit. I stumbled across the story in which some young hero (a) rapes his sister and then (b) kills her in a rage because he feels guilty. I was about 10 years old.
The teacher told me I was not supposed to be reading "that part."
It is off topic but interesting. Notice that these were warrior cultures, so they probably wanted to be able to get rid of babies that were "weak."
Awww, I step away from the thread for a bit (life, you know) and I loose? I didn't know my turn had come up.
Well, the LDS have no trouble running an adoption agency in Massachusetts. They only adopt to Mormons and women given their children up for adoption to this agency know the child will be placed with Mormons.
Religion might be a special case here.
I don't know if you could make a Randian adoption agency that adopted only to Objectivist families. Likewise, I doubt you could run an adoption agency that adopted only to Republicans (and in Massachusetts, what do you do when you run out of Republicans?).
We give religious groups special permission to discriminate in their own sphere.
Your initial allegation was that gay activists forced Catholic Charities out of the adoption business.
I've made it clear that CCB willingly adopted to same-sex couples. Certainly the Church has the right to insist that CCB not do so.
There was, however, no way CCB could follow the dictates the Church and remain the adoption subcontractor for Massachusetts. You can't say, "my religion forbids me from doing the job I've agreed to do, but pay me anyway."
CCB didn't want to continue as a private adoption agency, working solely on Catholic Church funds and adoption only to Catholics. End of story.
I am sure that was part of it. However, it is interesting to see how controversies a thousand years later can be couched in the same terms, is it not?
Which is utterly irrelevant.
Game, set and match. I ask again, to which there has been no answer: If it were not for gay activists insisting on Mass adoption agencies adopting out to gays, would the CCB still be in business?
If you continue to fail to answer the question with a simple yes/no, then obviously you feel it destroys your argument.
Yes and no. Human nature so far is relatively immutable. Catholic Church basic doctrine likewise (the Nicean Creed, which is at the basis of it, dates back to the fourth century). So it's not at all surprising that the same conflicts come up over and over again.
But it is an interesting historical tidbit.
One of the difficulties to me in this matter is what the motivation (really) was to get out of the adoption business in this case. Is John D correct about the change in policy happening after the gay marriage decision? If so, doesn't that at least undermine the appearance that this was anything other than an attempt to call attention to the RCC's disagreement with the Supreme Court of Massachusetts?
Also do you disagree that agents of the state (i.e. subcontractors) should be held to non-discrimination standards of the state even if you might argue that private adoption agencies should be allowed to discriminate?
Now, the main source I can find for this issue is here. It states, interestingly:
and also
It doesn't seem to me that this was an issue of the state forcing them to change practices or an issue of them being fully private. Also the non-discrimination statute dates back to 1996, a decade before CCB stopped placing kids for adoption. So it doesn't seem to me to be a simple matter of causation regarding a statute that CCB abided by for 10 years, or at least it doesn't seem so to an outsider.
In order to get an adoption license in Massachusetts, it looks like adoption agencies MUST sign a statement stating that they will abide by all nondiscrimination laws. So the issue is not just public funding there.
I don't know how the LDS church gets to do what they are doing. However, I DO think there needs to be a religious exemption for charities not accepting public funding.
From the timeline, it is pretty clear that the CCB was out of sync with the Church. The Church (in America specifically) had been pretty lax in a number of areas for several decades, and has since, with pressure from Rome, returned more closely to tradition, as I have written a couple of times already in this thread.
Hence the inference that CCB's timing in refusing gay adoption was a church "protest" is simply not tenable. Likewise, the resignation of board members is entirely consistent with the church cracking down on an errant organization.
In order to get an adoption license in Massachusetts, it looks like adoption agencies MUST sign a statement stating that they will abide by all nondiscrimination laws. So the issue is not just public funding there.
In order to get an adoption license in Massachusetts, it looks like adoption agencies MUST sign a statement stating that they will abide by all nondiscrimination laws. So the issue is not just public funding there.
1A
and
lack of compelling state interest to intervene in private operation.
I just wonder if if they allow the agencies that refuse inter-racial adoption (a restriction frequently insisted on by black and native american activists)?
Since when is the Indiana Supreme Court regarding Indiana Constitutional Law binding in Iowa regarding Iowa Constitutional Law?
As I say, from an outside perspective it looks like a protest bit, esp. when paired with this sort of thing.
That said, I do favor religious opt-out clauses on this matter but think they should be limited to those who do not hold contracts with the state. And in fact, I would even favor law suits to establish that these might be required.
Actually I changed my mind. I think that religious opt out clauses should be limited to operations outside of contracts with the state (a narrower limitation). I.e. if you have a contract with the state to place special needs children in homes, that activity should not be subject to religious opt out exceptions, but any other activity a religious group does should be eligible.
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