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March 05, 2005

Comments

Chairm

>> This point is especially driven home in states which allow certain couples to marry only if they are presumed infertile.

No, there is no presumption of infertility. The exceptions are explicitly about sterility confirmed by age -- usually over 65 -- or surgical procedure. And even that latter exception is based on the combination of a man and a woman who have the potential to procreate together.

There is no unjust discrimination based on sexual equality in the man-woman criterion which is itself a presumption of potential fertility. A presumption that can not apply to unisexed combinations.

Fertility is demonstrated by the couple conceiving AND bringing to term a child. To demonstrate infertility the couple would need to have unprotected sexual relations with the reasonable expectation of having a child together. Marriage law can not reasonably be expected to demand that couples engage in premarital sexual relations for a couple of years or more, have a child, and THEN marry.

The exception is not as you have characterized it.

Galois

No, there is no presumption of infertility. The exceptions are explicitly about sterility confirmed by age -- usually over 65 -- or surgical procedure.

I think it is pretty safe to presume them infertile then. I never said marriage law should require that couples engage in premarital sexual relations. I am saying what is the harm in letting a couple of sixty-five year olds marry? How does that work against any state interests? If I can "presume" that a couple of sixty-five year olds can procreate I can just as easily "presume" that a unisex couple can procreate. So, yes, the exception is precisely as I characterized it.

Chairm

Yes, that is how you characterized it. And it remains a mischaracterizaton.

Your search for a legal loophole depends on an all-or-nothing test of the presumption of procreativity. But then you protest that your reasoning does not include a requirement that each and every couple engage in premarital sexual relations and childbearing. An exception to your notion of all-or-nothing.

Your error is in the overbroadening of an apparent exception combined with the overnarrowing of the presumption inherent in the man-woman criterion of marriage.

Infertility is experienced by the man-woman combination only. The unisexed couple can be neither fertile nor infertile. They are sterile. No presumption of sterility is needed to recognize that objective truth.

One might narrow the search for an apt exception, however, the presumption of procreativity does not depend on the means and authority of the state to investigate the sexual relations of each and every married couple. To grant such intrusive power would do much harm to the social institution of marriage.

>> If I can "presume" that a couple of sixty-five year olds can procreate I can just as easily "presume" that a unisex couple can procreate.

One may be capable of almost any absurdity but that hardly stands as reason to discard state recognition of the man-woman criterion of marriage.

But if it would stand as a reason for the Court to rewrite the Constitution, then, it would harm the social institution of marriage as well as undermine the legitimacy of the Judicial branch of government. For starters.

As for your argument about the elderly couple, I'd grant that their sexual relations within marriage is less a concern for society than it would be for younger couples. But.

In the past, life expectancy pretty much matched-up with the upper childbearing age. Then, as now, by far most people married during their reproductive years. Marriage provided the societal supports and obligations that bonded men and women with their children. For a lifetime. It is unsurprising that one might not find in the past explicit fertility requirements for elderly couples. Today tradition and reason stand as supports for the inclusion of the elderly couples even though we generally live much longer.

Unlike the unisexed couple who is always nonprocreative no matter their age, the elderly man-woman couple has experienced diminished capability leading to incapability. It is unreasonable to expect that in the past the state would have considered revoking the marital status of all wives who had experienced menopause. It is no less reasonable today to disadvantage women in this way.

If your all-or-nothing test must apply, then, how could the state recognize the marital status of the longtime husband and wife who have reached old age and at the same time not recognize the marriagability of the elderly couple? Besides, such newlyweds reinforce the marriage idea because they'd resemble the longtime married couple who'd renew the vows they took during their childbearing years.

The unisexed couple does not transition from fertility to sterility.

Galois

Your search for a legal loophole depends on an all-or-nothing test of the presumption of procreativity. But then you protest that your reasoning does not include a requirement that each and every couple engage in premarital sexual relations and childbearing. An exception to your notion of all-or-nothing.

First of all, I am not in search of a legal loophole. Those wishing to justify the policy are in search of a compelling state interest. So far all I have been able to gather is that their supposed interest has something to do with procreation. I have yet to receive any explanation of what the state interest is and how allowing same-sex couples to marry works against that interest. What I pointed out was that since some couples who clearly cannot procreate are allowed to marry, it follows that allowing couples who clearly cannot procreate to marry does not in of itself seem to work against this unnamed state interest. (It is impossible for me to judge for sure until the interest is actually articulated). I also pointed out that it cannot simply be the case that allowing such couples to marry does work against some state interest, but we allow it due to expediency or oversight. The reason that cannot be true is that in some cases states make explicit exceptions for couples provided that they cannot procreate.

Consider the following case to illustrate my point. A theater refuses to allow a patron who is carrying a can of soda into the theater because they are worried it might spill and ruin the seats. This is a rational policy. That the theater does not bother to search every bag or pocket, and hence some people do bring drinks into theater, does not change the fact that it would like no drinks brought in. Just because it cannot enforce the policy 100% does not mean that in the case where it is obvious it shouldn’t speak up and prevent the can from entering the theater. However, if the theater allowed certain patrons in ONLY IF they had soda cans it would be rather difficult to believe that it was vital that the theater keep cans out.

Infertility is experienced by the man-woman combination only. The unisexed couple can be neither fertile nor infertile. They are sterile. No presumption of sterility is needed to recognize that objective truth.

I am a little confused by your word choices. A unisex couple is not infertile? OK. I would normally define infertile as not fertile and hence not infertile would imply fertile, but let us not worry about semantics. The couple of sixty-five year old people is also sterile. No presumption of sterility is needed to recognize that objective truth. You accuse me of absurdity for “presuming” a same-sex couple could procreate, but you make the same absurd claim in “presuming” a sixty-five year old couple procreates. Personally, I would make neither presumption, but it seems to me if you can do one you can do the other.

In the past, life expectancy pretty much matched-up with the upper childbearing age. Then, as now, by far most people married during their reproductive years. Marriage provided the societal supports and obligations that bonded men and women with their children. For a lifetime. It is unsurprising that one might not find in the past explicit fertility requirements for elderly couples. Today tradition and reason stand as supports for the inclusion of the elderly couples even though we generally live much longer.

And in the past marriage and the rest of society delineated certain legal roles on the basis of gender. It is unsurprising then that one finds in the past a gendered requirement for marriage. The question remains is there any justification for that to continue? The burden is on the state to justify its gender classifications. Nor do I believe that allowing elederly couples to marry is merely an homage to past lifespans. The truth is no harm and a great deal of good comes from the marriage of elderly couples.

It is unreasonable to expect that in the past the state would have considered revoking the marital status of all wives who had experienced menopause. It is no less reasonable today to disadvantage women in this way.

I agree! It is completely irrational because NO HARM comes from allowing a couple to marry even if they clearly lack the capacity to procreate.

If your all-or-nothing test must apply, then, how could the state recognize the marital status of the longtime husband and wife who have reached old age and at the same time not recognize the marriagability of the elderly couple?

I am not arguing for an all-or-nothing test. I am asking WHAT HARM COMES FROM ALLOWING COUPLES WHO CANNOT PROCREATE TO MARRY? I believe no such harm exists and I point to the elderly couple to help prove my point. And if some harm did come from allowing elderly couples to procreate it would be easy enough to recognize marriages that were entered into before a certain age, but not recognize a marriage entered into after a certain age. We can allow the couple to marry ONLY IF they are both sixty-five or older, so we could certainly allow them to marry ONLY IF they are both sixty-four are younger. I DON'T THINK WE SHOULD!

Besides, such newlyweds reinforce the marriage idea because they'd resemble the longtime married couple who'd renew the vows they took during their childbearing years.

This is what I find most amazing. You can see how an elderly couple--who will obviously not procreate and are clearly getting married for reasons having nothing to do with raising children--resembles a couple who got married younger, had children, and have now grown old together. Yet you are unable to see how a same-sex couple--who plan to have children, raise them in a loving home, and live together for a lifetime-- resembles that same couple when they initially married.

In any case we are left back where we started. Those who justify the prohbition of SSM must explain WHAT interest is being served by excluding same-sex couples and HOW that interest is furthered by the exclusion of same-sex couples.

>> Those who justify the prohbition of SSM must explain WHAT interest is being served by excluding same-sex couples and HOW that interest is furthered by the exclusion of same-sex couples.

Hang on.

You would discard the man-woman criterion of marriage. This would replace state recognition of marriage with state recognition of something else. Yes, you think there are aspects that resemble marriage sufficiently that society might as well just relabel it as marriage, but that depends on locking-in the separation of marriage from procreation.

To get there from here, you would create a new fundamental right through embellishment of the Supreme Court's equality doctrine to establish a new suspect classification that newly conflates sex with sexual orientation. That takes the scenic route around the actual Constitution to reach a desired policy outcome.

Naturally, this is the court-centric approach to amend the Constitution. If your amendment were proposed to the country, instead of to a few lawyers in court chambers, it would become clear that this is not about tinkering with the edges to add a bit more inclusiveness. Its purpose is not the strengthening of marriage but the raising the primacy of individualism to a radical level that undermines marriage.

The burden is on the guy who would impose changes that in effect tunnel beneath the bedrock social institution.

There are other points in your response I'd like to discuss but don't have the time today.

[BTW -- it is good to see you have returned to blogging. Keep well.]

Galois

Yes, you think there are aspects that resemble marriage sufficiently that society might as well just relabel it as marriage, but that depends on locking-in the separation of marriage from procreation.

No. It only requires that one recognize that it is possible to still be married despite lacking the ability to procreate. That is the only thing it depends on. One could still view marriage as ideally suited for procreation. That is procreation ought not to occur outside the bounds of marriage. One could view the primary purpose of marriage as uniting a couple so that they may procreate responsibly. One could certainly view the primary purpose of marriage as uniting a couple for the benefit of their children. One does not need to change the laws of marriage in any way that interferes with the ability of a couple to use marriage to provide a setting for responsible procreation.

To get there from here, you would create a new fundamental right through embellishment of the Supreme Court's equality doctrine to establish a new suspect classification that newly conflates sex with sexual orientation.

No. I’m not seeking to create any new fundamental rights. I am only asserting one’s right to be provided with the equal protection of the laws. In particular I am asserting the right of an individual to not have their sex used against them without a compelling governmental need. I am not seeking to establish a new suspect classification. The denial of same-sex marriage uses gender classifications. That classification is already suspect, as I have shown. Because it is suspect the burden is on those who would use the classification. That is the law, and I believe it is a just and proper law.

That takes the scenic route around the actual Constitution to reach a desired policy outcome.

No. The Washington Constitution, for example, says “equality of rights and responsibilities under the law should not be denied or abridged on account of sex.” That is the actual Constitution. You are the one trying to make up some fanciful exceptions to this rule. And please note it is primarily because I believe it is unjust to deny someone the equal protection of the law on the basis of sex that I desire this policy outcome. (That it also makes for good policy is a side effect. If that were the only reason, though, I would appeal only to the legislature as I do with most policies.)

Naturally, this is the court-centric approach to amend the Constitution.

The Constitution was already amended. I am demanding that the courts enforce this Constitution as the legislature often sees fit to ignore it. If you would like to amend the Constitution again to try to carve out the exceptions you want, you should seek to amend it. In the meantime I would hope that judges would uphold the Constitutions we have and not the ones you envision.

Its purpose is not the strengthening of marriage but the raising the primacy of individualism to a radical level that undermines marriage.

I never claimed the purpose is to strengthen marriage (that is merely a bonus side effect). Certainly I am asserting a strong interest in “individualism” in the sense of the right of the individual to be treated by the government as an individual without regards to their sex, race, religion, or national origin. I do not believe that treating people this way undermines marriage at all. Will you please explain how you think it would do so?

The burden is on the guy who would impose changes that in effect tunnel beneath the bedrock social institution.

No. As I have demonstrated in a series of recent posts, when the government attempts to use gender classifications the burden falls on the government to justify its use. This is certainly the general rule. You are asking for an exception to the rule. At the very least those who would make such an exception need to justify that. I would believe, though, that if you could justify the exception to the rule you could justify the use of the classification in the first place. Unfortunately I have seen very little in the way of justification. Mere claims that it will destroy marriage are not very persuasive. You must explain HOW it would do so.

Marty

I know i'm late to a long running thread, but what the heck:

As I have demonstrated in a series of recent posts, when the government attempts to use gender classifications the burden falls on the government to justify its use.

As it has. You forget that here in America, "the Government" is synonymous with "We The People". We The People have justified it to our satisfaction (indeed, it never needed any justification at all until, like, yesterday). Your continued insistence that it has not yet been justified (when what you really mean is that it is not justified to your satisfaction) is the driving force behind Constitutional Marriage Amendments in state after state after state.

Keep it up, you'll have your dreaded FMA yet... the longer you refuse to hear what "we the people" are telling you, the louder we will explain it to you.

Galois

As it has... Your continued insistence that it has not yet been justified (when what you really mean is that it is not justified to your satisfaction)...

What justification? The two purposes given in New Jersey were tradition and a desire for uniformity in state laws. The state did not explain why it needed to be in unison with 48 other states (but not Massachusetts) in this aspect of marriage, but not in others. Nor did it explain why preserving tradition is such a compelling interest. So you're right. I really mean "not even close to justified" to my satisfaction and I'm amazed that this is considered justification to anybody.

And frankly I don't think my insistence on more justification than "well that's the way we've done it and that's the way most other states do it" played any role in any state adopting a constitutional amendment. I can't say for sure why any particular person voted for such an amendment but I would venture that in most cases it was because they felt same-sex marriage was just plain wrong. Still the people certainly have the right to amend the constitution for whatever reasons they feel like. Until they do so, though, it is the responsbility of the judiciary to uphold the Constitution. Yes many of the most homophobic states passed amendments, but in the state where one would think it would be most pressing--Massachusetts--they have now decided that it is not really a priority. The only amendment being considered would grant full civil unions and most people feel even that is unlikely to pass.

Keep it up, you'll have your dreaded FMA yet... the longer you refuse to hear what "we the people" are telling you, the louder we will explain it to you.

Actually it's now the MPA (Marriage Protection Amendment) and it too seems to have no chance of passing. Several Republicans have strong oppositon to it and no Democrat in the Senate supports it. There is more chance of a Flag Burning Amendment coming out of the Senate than the MPA. So I'm not concerned that my continued demand for justification will result in the MPA. And as for your offer to explain it louder. Please do! That's what I've been looking for. What harm comes from allowing a same-sex couple to marry? Explain softly or loudly, but please explain!

Marty

Here in NC, an amendment would pass by well over 63% -- if it could ever get out of the committees of cowardly elected officials... But with every activist judicial ruling, that gets closer and closer to happening...

Yeah, we're all hicks & homophobes too... yawn.

Sorry you've not been convinced of the justification for Traditional Marriage, but you don't seem to be listening to anything anyone has been saying to you for the past 2 years now. We don't expect you to change your mind at this point, but we DO expect you to respect the strongly stated opinions of the overwhelming majority of "We the People" -- hicks or not.

What i mean by "saying it loudly" is this: The American people overwhelmingly disagree with you that SSM is a constitutional matter. We've made that more than clear. If you cannot hear what we've been saying -- then we WILL concede your point and MAKE it a constitutional matter. State, by state, by state.

Is that really what you want?

Galois

Sorry you've not been convinced of the justification for Traditional Marriage, but you don't seem to be listening to anything anyone has been saying to you for the past 2 years now.

I don’t seem to be listening? I’ve tried to respond to every possible argument I’ve heard for why we should prohibit same-sex marriage. I ask questions in return and I don’t receive answers. For example, in this thread alone I’ve asked a number of times “What harm comes from allowing a couple who cannot procreate to marry?” I have yet to receive an answer. I’ve heard you say that you would explain it louder. “Great!” I thought I’d finally hear an explanation, but alas, no. It turns out what you meant by an explanation was that you would pass an amendment. An amendment, sadly, is not an explanation. That amendments have been passed informs me that in some states there is strong opposition to same-sex marriage, but it does not tell me why people are opposed. Since when pressed to justify the exclusion the best answer given is “Well, that’s just the way things are” I am left with the conclusion that indeed it is based on emotion and not reason. That is not to discount people’s strong feelings on the subject, but people’s irrational prejudices are not going to stop me from pushing to have the laws enforced and justice served. There was also a deep aversion to integration, but that did not stop civil rights leaders from fighting for justice. So it is well within your rights to push to amend the Constitution, but it is well within my rights to push to have the Constitution enforced.

So do I want states to pass Constitutional amendments prohibiting same-sex marriage? No. But at least I would find passing an amendment preferable to simply ignoring the Constitution. And eventually those amendments will be repealed. As time goes on and more people meet same-sex couples and their families, and more states and countries allow same-sex marriage, the emotional resistance to such a change will weaken, just as it did with resistance to interracial marriage. Today Massachusetts and Canada allow same-sex marriage. Vermont has--and Connecticut will soon have--full civil unions. California’s domestic partnership is very close and New Jersey’s is fairly extensive as well. I expect that within five years New Jersey, New York, Vermont, Connecticut, and Rhode Island will all allow same-sex marriage. So go ahead and “explain” yourself as loud as you want. Volume is no substitute for reason.

Marty

I thought I’d finally hear an explanation, but alas, no.

Sorry, i assumed you were being rhetorical. Fact is, I've personally answered that question a number of times on blogs i know you read, as have many others. You've heard, but refuse to acknowledge (much less agree with) the answer. In short, marriage is nearly dead as it is. It may die anway, but what you want to do will surely kill it by making a mockery of the ideal that it once was. You don't need to rehash the same argument we've all been having, here, with me, yet again. I don't have the time to blog extensively like i once did, so you'll have to settle for my occasional drive-by. Listen to Maggie and Justin if you need more depth.

But at least I would find passing an amendment preferable to simply ignoring the Constitution.

Ignoring? We've already established that marriage does not descriminate on sexual orientation or gender, so you must be saying that we're "ignoring" principles that just don't exist. If they DO exist -- then they are very very new. Might as well put them into the constitution then, in explicit language, since only in last 20 years of its 200+ year existence could anyone even imagine that it says what you say it says. You just can't invent constitutional rights out of thin air, my friend.

Now, in your second paragraph you express a strong confidence that the winds of change will eventually blow your way, and people will not be so vehemently in disagreement with you. That's good -- let's let it happen then. If you don't want to see the Amendments, you should be working to call off the single-minded activists who are only creating more backlash against your cause. You, of all people, should know that forcing an unwanted morality on the public is a bad bad idea.

Galois

Fact is, I've personally answered that question a number of times on blogs i know you read, as have many others.

The answer I recall you giving was that we need to prohibit same-sex marriage to combat discrimination in much the same way that we withhold federal funds from schools that do not integrate. I didn't think you were serious. If you were, I apologize. There are many problems with this argument. For one schools are forbidden from using quotas and yet your system is based on a quota. Your spouse must be of the opposite sex. An individual is forbidden from adopting a gender blind policy for whom to marry. Also an individual is permitted to choose a spouse based on criteria that would be forbidden if used by the government. I can decide to marry someone because of their religion or even because of their race.

Still, that was only your explanation for why same-sex marriage should be prohibited and I doubt if it is the same reason held by others, so I have asked others for explanations and sought to examine them in detail. That is why I find it amazing that you say I refuse to acknowledge answers. I have constantly tried to understand answers better. In this case I was looking at Nephtuli's reasons for opposing it. He said it was because marriage was about procreation. That does not explain, however, why same-sex marriage must be prohibited. Marriage can be about procreation and still allow for the possiblity that some who marry cannot procreate. Hence I asked what the harm was of letting those who cannot procreate marry. I promise you I have not read an answer to this question. I have heard that it is okay to make exceptions to a general policy, and I agree as I noted with the theater illustration. Yet if there is no harm in allowing those who cannot procreate to marry then there is no reason to use the lack of an ability to procreate as a basis for the prohibition.

In short, marriage is nearly dead as it is. It may die anway, but what you want to do will surely kill it by making a mockery of the ideal that it once was.

See, this is the sort of thing where I would want to know what was the ideal of marriage and HOW would same-sex marriage make a mockery of that ideal. If you don't want to discuss that here, that's fine. I do not believe that in of itself that claim without more detail is even an attempt at justification of the exclusion.

Listen to Maggie and Justin if you need more depth.

I do listen to both of them and frequently respond to both of them. They both seem to be basing their opposition to same-sex marriage on traditional gender stereotypes. (Justin, for example, couldn't believe that my mother actually liked baseball.)

We've already established that marriage does not descriminate on sexual orientation or gender.

Actually I thought I had demonstrated quite well that marriage does discriminate on the basis of gender as does necessarily any sexual orientation discrimination. I have been responding to people's critiques of my reasoning. From some corners, though, I have been accused of engaging in "legal gimmicks", "academic tricks", or "twisting arguments to fit my desired outcome". From you I have been told to stop asking questions or else you will pass a constitutional amendment. None of those attacks focus on my arguments themselves.

If they DO exist -- then they are very very new. Might as well put them into the constitution then, in explicit language, since only in last 20 years of its 200+ year existence could anyone even imagine that it says what you say it says.

Of course. That's my point exactly. In order for these arguments to be accepted two things had to happen first. One is that the arguments had to be considered on their merits. Only in the last 20 years have people started to do that. The second is there had to be more gender equality in society as a whole. Again that is something that is still developing and has grown tremendously in the last 20 years. 130 years agon the Supreme Court could say that it was perfectly Constitutional to deny women admission to th bar because the role of a woman was as wife and mother as I noted in a recent post. It took 100 years for the Court to reject this reasoning. 120 years ago the Supreme Court could say this about a law which gave stiffer penalties for interracial fornication or adultery:


There is in neither section any discrimination against either race. Section 4184 equally includes the offense when the persons of the two sexes are both white and when they are both black. Section 4189 applies the same punishment to both offenders, the white and the black. Indeed, the offense against which this latter section is aimed cannot be committed without involving the persons of both races in the same punishment. Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.

It took about 80 years for the court to reject this reasoning. Just a few weeks ago Justice Mulvey, a judge in upstate New York said:

The Court finds that the classification is not based on gender. Men and women enjoy equal rights to obtain a license to marry a person of the opposite sex; neither sex is advantaged or disadvantaged in the consideration of the license application. Each sex is equally prohibited from precisely the same conduct, i.e., marriage to a person of the same sex.

I believe it won't take nearly as long to reject this reasoning a second time. All three situations require no right to be brought out of thin air, only a deeper more careful analysis of the situation.

If you don't want to see the Amendments, you should be working to call off the single-minded activists who are only creating more backlash against your cause.

How can I possibly tell someone not to assert their right to be treated as an individual and not as a member of the class of women or the the class of men? I know one of the families in the CT case. The daughter of one couple was one of my wife's campers. I should tell her that her mothers should not even ask a court for equal protection? I don't think they are creating much of a backlash. Before same-sex couples started asserting their rights no state offered any protection to those families. Now a number of states offer significant protections with more states following every year. Sure, some states that weren't about to offer such protections have passed constitutional amendments, but that's hardly a loss. Overall it's been a great gain for the protection of same-sex couples and their families. If that's the sort of backlash I should expect then bring it on.

Marty

No no, that bit about school integration was merely to point out that it is your side, advocates of SSM, that are positing the theory that separate is equal -- same as your friend in CT. You say "her mothers" so glibly, so easily, it rolls right off the tongue so carelessly that you don't even realize the unspoken flip side: that "her father" doesn't matter a hill of beans. To say that "two mothers (shhh, dont mention the father)" or "two fathers (shhh, dont mention the mother)" are equal to "mother and father" makes a mockery of marriage and of family. Separate is not equal.

Marty

That it takes precisely one man, and one woman (no more, no less) to create a family is not a "traditional gender stereotype", it is an indisputable law of nature.

You may not think this is very important to the institution of marriage, while i think it is the most crucial aspect of the whole idea. Just understand that my belief is based on a fundamental law of nature, while yours is based on a purely "social construct".

Galois

First of all you are demonstrating a serious lack of understanding of the "separate but equal" concept. Prior to Brown it was accepted that racial classifications were permissible so long as the individuals of each race had access to "equal" accomodations. A person could be denied access to a particular facility on account of race so long as he or she was given access to a similar facility. An individual was offered "separate but equal" facilities. Now who in your analogy is being denied access to a particular facility? I am guessing you would say the child is being denied access to opposite sex parents. The problem is that every child is denied access to any particular set of parents but their own. It is not that children of one race or gender are allowed into one particular family, and children of a different race are allowed into a "separate but equal" family. All parents are different. Some are better parents than others, but they are all treated equally under the law.

You seem to have a problem with treating two mothers as equal to a mother and a father. That is a problem with treating two different things equally, that has nothing to do with "separate but equal". And as I noted all parents are different and yet treated equal. I would also note that your problem is with same-sex parenting, not same-sex marriage. The couple is currently not allowed to marry and yet they are already the mothers of the girl and she has no father to mention.

As for your claim that it takes one man and one woman to create a family, that is not natural law but your opinion. I would say there are a number of families out there headed by same-sex couples. And so we come down to why you think there must be a man and a woman to have "family". According to Justin and Maggie it is because mothers and fathers are different in how they relate to a child. Mothers are compassionate caregivers, fathers are stern disciplinarians, etc. These are most certainly traiditional gender stereotypes.

Marty

You just hit the nail on the head. My definition of family is founded by the laws of nature. Yours is a purely social construct. There is no way to reconcile the two positions.

Galois

Marty McKeever on justifying same-sex marriage prohibitions:


My definition of family is founded by the laws of nature.

Trial judge in Virginia justifyig interracial marriage prohibitions:

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

Justice Bradley justifying the denial of women to the bar:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. . . .

. . . The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.


The long and glorious history of the "natural law" argument.

Marty

One (male) sperm, one (female) egg, one (human) being.

I suppose i could (in the end) be just as WRONG as the judges you cite, but i'm willing to take that risk.

Are YOU willing to bet against me? What's your wager friend?

Galois

Are YOU willing to bet against me? What's your wager friend?

I might be. About what exactly are we wagering?

Chairm

Galois, over the next while I'll try to make time to respond to some of your additional remarks regarding procreation. For the moment, the equality doctrine:

>> One does not need to change the laws of marriage in any way that interferes with the ability of a couple to use marriage to provide a setting for responsible procreation.

Let's clarify this assertion.

"Society could discard state recognition of the man-woman criterion of marriage without interfering with the married man and woman who'd create children within their marriage."

I can agree. Not because your SSM argument is correct, but because the institutions of family and marriage have always survived somehow. They form the foundational communities that pick up the pieces after a society has messed up big time.

[Someday I might tell you some of the chilling stories about how much damage can be done when the state undermined marriage in my home country. But I'm not inclined to get into personal history on the net, at least now.]

If the court were to enact SSM, and called it "marriage", then, a great falsehood would be declared with the voice of state authority. There are many factors in a society's downfall, and SSM would not be the final straw, but it would not lighten the burden one ounce.


>> I am asserting the right of an individual to not have their sex used against them without a compelling governmental need. I am not seeking to establish a new suspect classification. The denial of same-sex marriage uses gender classifications. That classification is already suspect, as I have shown. Because it is suspect the burden is on those who would use the classification.

Yeh. But you are basing your argument on a demonstratably false premise. Marriage is not a unisexed arrangement. Reframing some idealized unisexed alternative with the label "marriage" does not disguise the substitution that would be enacted under the pretense of merging the two things.

As for the equality doctrine, the man-woman criterion does not subordinate one classification under another. Women as a class are not treated as inferior to men as a class, for instance. In our society, marriage law does not treat the sexes as "separate, but equal"; they are united within marriage as equals before the law.

Your argument is an attempt to establish at least two additional classifications within each of the biological sexes already established in the equality doctrine. You'd place these new subsets on a level at par or higher than sex classifications.

The government could get out of the marriage business altogether. Or it could create alternatives in civil law. Or it could replace marriage with an alternative. But there is no fundamental right to state recognition of any form of household. Not even those established on the man-woman criterion.

A woman is just as free as a man to form a household with someone of the same sex. The state might even recognize the arrangement from which legal incidents and government benefits might flow. But by choosing such an alternative, no right to marry is denied. Rather, a liberty is exercised.

Galois

If the court were to enact SSM, and called it "marriage", then, a great falsehood would be declared with the voice of state authority.

I do believe we are getting somewhere with this. The harm in allowing SSM is that the state would be declaring a great falsehood. Presumably others will believe this falsehood and be led astray by it leading to some dire consequences. Pray tell, what is this great falsehood?

But you are basing your argument on a demonstratably false premise. Marriage is not a unisexed arrangement.

So we disagree about my premise. I do claim that marriage--that is civil marriage--can be defined without regards to gender. As evidence of this I can point to Canada, Belgium, and the Massachusetts. I suppose you must be arguing that Massachusetts does not have same-sex marriage. It has same-sex scarequotes that the law does not distinguish in any way--including name--from marriage. That is all I'm referring to, though, marriage as defined by the civil law. That can certainly be done without regards to gender. Some people do not recognize interfaith marriages or marriage after divorce. In their eyes those are not marriages. That's fine. The law may still refer to them as marriages, though. Certainly not all marriages are the same. My marriage is different from another's. To treat all such marriages equally before the law is not a problem, though.

As for the equality doctrine, the man-woman criterion does not subordinate one classification under another. Women as a class are not treated as inferior to men as a class, for instance. In our society, marriage law does not treat the sexes as "separate, but equal"; they are united within marriage as equals before the law.

I have mentioned before how classifications need not be designed to subordinate one class in order to be suspect. I need not repeat myself here. The biggest problem, though, with the above statements is it focuses on groups whereas I believe--as the court said in Perez--that equal protection belongs to the individual. It is not a question of one class versus another class. It is a question of whether the classifcation of one into "man" or "woman" is being used to trump what one could otherwise do if the clasification were otherwise. The problem is treating people as XX chromosones or XY chromosones and not treating them as human beings.

Your argument is an attempt to establish at least two additional classifications within each of the biological sexes already established in the equality doctrine. You'd place these new subsets on a level at par or higher than sex classifications.

Not at all! I'm not establishing additional classifications. I'm removing classifications. Chris and Pat wish to marry. They do not wish to classified by gender. They want to be treated as the individual human beings they are. Should we allow them to marry? Why or why not?

The government could get out of the marriage business altogether. Or it could create alternatives in civil law. Or it could replace marriage with an alternative. But there is no fundamental right to state recognition of any form of household. Not even those established on the man-woman criterion.

But there is an established right to be free from gender classifications unless the government can justify those classifications as necessary. One should not have to have invasive surgery performed in order to have one's marriage recognized. There is no reason for that.

It seems by your reasoning that it is entirely up to the whim of the government of whether to recognize relationships or not. Are there any criteria the government should be forbidden from using? Can it refuse to recognize it based on race? Can it refuse to recognize it based on religion? A Jew is as free as a Christian to form a household with someone of another religion, but by choosing such an alternative, no right to marry is denied. A liberty is exercised. Or what if the government said it would only recognize marriages if one person promised never to work outside the home?

Chairm

>> As evidence of this I can point to Canada, Belgium, and the Massachusetts. I suppose you must be arguing that Massachusetts does not have same-sex marriage.

Sure, those jurisdictions now have something new that is open to the unisexed combination.

That they continue to call it marriage, demonstrates that it is possible to replace acknowledgement of marriage itself with recognition of something else in civil law.

The Massa Court acknowledged what marriage is and then replaced it. In so doing, it did not extend marriage. It newly established a substitute that is vague enough to combine the unisexed combination with the marriagable combination.


>> equal protection belongs to the individual

Sure, utimately cases are about particular persons.

But the equality doctrine is obviously about providing this constitutional protection despite individuals being actual members (or merely apparent members) of identified groups. In part, it is the focus on classifications which is supposed to help test the laws.


>> Chris and Pat wish to marry. They do not wish to [be] classified by gender. They want to be treated as the individual human beings they are.

They'd seek state recognition as a marriagable couple, not as two disconnected individuals. In this, their combination is the key, not their individuality. They are no more a set of disembodied persons than would be the combination of a brother and a sister name Chris and Pat.


>> It seems by your reasoning that it is entirely up to the whim of the government of whether to recognize relationships or not.

As you know, the Judiciary is a branch of our government. It is no less capable of demonstrating that there is whim in abundance among mere mortal men and women. The balance of powers is no mere whim.

Justices specialize in the interpretation of constitutional law and, in no small part due to that speciality, they are ill-equipped and poorly situated to decide social policy on behalf of a self-governed people.

Your reasoning depends far too much on an excessive deference to the exercise of judicial power outside of its area competence.


>> One should not have to have invasive surgery performed in order to have one's marriage recognized.

Invasive surgery? Ah -- might this return us to the example of the sterility provision in some jurisidictions that recognize cousin marriages? I'll go to the thread about procreation to continue that discussion.

Chairm

Clarification:

That they continue to call it marriage, demonstrates that it is possible to replace acknowledgement of marriage itself with recognition of something else in civil law.

... under the guise of a "redefinition".

Galois

The harm done begins with the court's untruthful declaration that nonmarriage is marriage....

If the court were to enact SSM, and called it "marriage", then, a great falsehood would be declared with the voice of state authority.

If there is going to be any success in us trying to understand one another, I beieve these have to be the starting points. What is the harm in declaring something that you do not consider to be a marriage to be a marriage for all legal purposes?

Actually there is one other misunderstanding that is easy to clear up. The invasive surgery I was referring to was not in reference to sterility provisions, but rather a sex change operation. In particular I was thinking of cases like this...


By Illinois statute, the Registrar of Vital Records can create a new birth certificate upon receipt of "an affidavit by a physician that he has performed an operation on a person, and that by reason of the operation the sex designation on such person's birth record should be changed."

Sterling's doctor did provide such an affidavit. But the operations he had performed were not those typically thought to effectuate a sex change.

Could the operations still accurately be seen as changing Sterling's gender? The plaintiff's expert thought so. He testified that Sterling was a "healthy male" - albeit one who had not had complete sexual reassignment surgery yet.

But defense experts thought not. Sterling, they pointed out had not had a vaginectomy and breast reduction to remove his external female genitalia and secondary sex characteristics. Nor had he had a metoidioplasty (a procedure that enables the clitoris to be transformed into what appears to be a small penis), scrotoplasty, urethroplasty, or phalloplasty, which would have created external male genitalia. Thus, in their eyes, he was still female.


Why should such surgery be required in order for the marriage to be valid?

Pete

My apologies Galois -- could you please delete my post immediately above? It appears I used the wrong symbol for quoting, and all my case quotes were lost from the document. I've painstakingly retrieved most of them and I'd like to keep them in the context of my original argument. Sorry for the bother.

"There race was considered as one of many factors in a university admissions policy. Even though the policy promoted integration, it was still subject to strict scrutiny. Grutter can certainly not be used to argue that SSM prohibitions should not be subject to strict scrutiny."

Grutter used strict scrutiny because race was involved, rather than gender, age, or lesser weighty classifications: "government may treat people differently because of their race only for the most compelling reasons." Here are some of these compelling reasons:

"The Law School [University of Michigan] ranks among the Nation's top law schools."

(Marriage has been measured as *the* most effective means of socializing a child.)

"Seeking to "admit a group of students who individually and collectively are among the most capable," the Law School looks for individuals with "substantial promise for success in law school" and "a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of others." App. 110. More broadly, the Law School seeks "a mix of students with varying backgrounds and experiences who will respect and learn from each other." "

Unlike the U of M, marriage cannot choose its pupils. Marriage can only be selective about the possible parents, and a good part of its success comes from ensuring gender diversity among married parents.

While the U of M submitted extensive evidence concerning the Law School's use of race in the admissions process, its evidence that diversity improved the quality of education, although believeable, was speculative and anecdotal. The Supreme Court admits that they give "degree of deference to a university's academic decisions." Bakke established that diversity, in itself, constituted a compelling state interest. The Supreme Court admits that its conclusion "that a law school has a compelling interest in a diverse student body” stems from the *presumption* of "’good faith’ on the part of a university ... absent a showing to the contrary. "

Contrast that assumption of good faith on the part of the university with the presumption of bad faith that the Goodridge court applies to Massachussetts legislators! As I showed on the "When Is A Classification Not a Classification?" thread, the Goodridge court knew that its 14th amendment analysis would not wash at the Supreme Court level and crafted the opinion artfully to make an appeal impossible.

Note that the Supreme Court in Grutter emphasizes that 'the Fourteenth Amendment "protects persons, not groups."' More importantly, in response to Dissenting Justice Kennedy's charge that the Grutter majority had "abandoned" strict scrutiny, the majority responded that the strict scrutiny inquiry "must be calibrated to fit the distinct issues raised by" attempts to achieve *diversity."

Goodridge's sledgehammer use of the misquoted Loving case, completely disregards the careful calibration that Grutter requires for state diversity requirements.

"If there is going to be any success in us trying to understand one another, I believe these have to be the starting points. What is the harm in declaring something that you do not consider to be a marriage to be a marriage for all legal purposes?"

First, it means that the version of marriage that I entered, is no longer the legal definition of marriage. I'm OK with the state being interested in my relationship for the sake of my responsibility to my children, but I am deeply uncomfortable when the government says, as in Goodridge, that it is involved in order to regulate love. I am not comfortable with the state trying to act as my church, or telling my church what it should teach and do regarding its most sacred ceremonies.

"I am hopeful that our decision will be accepted by those thoughtful citizens who believe that same-sex unions should not be approved by the State. I am not referring here to acceptance in the sense of grudging acknowledgment of the court's authority to adjudicate the matter. My hope is more liberating."

That's a frank admission that the goal is to change citizens' minds with the (rather coercive) argument that "tolerance" and "common humanity" requires us to set aside any beliefs we have in the unique sanctity of marriage between man and woman. The parallels that the Goodridge court has made between the White Supremacist Virginia laws and the institution of marriage, directly implies that anyone who thinks that real marriage is something more than a government approved union of two people, is the moral equivalent of a white supremacist. The talk has caught on at the university -- "letting the Boy Scouts use a public field would be like inviting the KKK."

After Goodridge, the MA Court required Massachusetts to go through its laws, regulations and documents and strip out references to "husbands and wives." Given the court's warning that it "hopes" that society at large will get the message, can we be certain that public schools and lawsuit-fearing workplaces will tolerate their employees using words like "father, mother, husband, wife?"

If federal courts ruled, like Goodridge, that marriage exclusively between man and woman was the legal equivalent of Virginian white supremacy, then won't churches that refuse to knuckle under and sanctify same-sex "marriages," receive the Bob Jones treatment from the IRS, and be banned from having chaplains in the armed forces, like white supremacist churches?

How could we possibly not fight against getting labeled like that?

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