[quote]SexMachine wrote:
‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’
Seems pretty straight forward to me. Perhaps if I were a Klansman I could read more into it.[/quote]
That wording is a lot more ambiguous than most people realize.
Nonetheless: it seems very likely to me that most of the congressmen and state legislators who voted to ratify it did so on the assumption that it means what SexMachine thinks it means, and not what the past century’s Supreme Court decisions say it means.
EDIT
I am also going to say that if anybody (directly or indirectly) involved in authoring that amendment intended it to have the broader meaning, they knew damn well that the congressmen and state legislators would ratify it on the basis of the narrower meaning. So that should make only the narrower meaning legally binding.
Circling back to the original post that started this exchange, I stated that:
“as a matter of policy I don’t see that the state has any legitimate, non-religuous based interest in declaring that homosexuality is ‘abhorrent and unnatural,’” and you asked what this has to do the the First Amendment. I then pointed out that, without a secular purpose, the state declaring that homosexuality is “abhorrent and unnatural” would run afoul of the Establishment Clause.
Regarding the Defense of Marriage Act, assuming without conceding that it has non-religious purposes, even so, it has Equal Protection problems. At least one panel of the Second Circuit Court of Appeals agrees with me on this and ultimately this issue will need to be decided by the Supreme Court.
[/quote]
Again, you are relying upon radical activist justices. Rely on the Constitution and its original intent. Gay men have equal protection under the law. As Kamui pointed out and as I have previously pointed out, they have the exact same right as “straight” men: to marry a woman or not to marry a woman.[/quote]
I’m not relying on any “radical activist judges,” I’m relying on my understanding of the requirements of the Equal Protection Clause and the way that clause has been interpreted by the Supreme Court of the United States over course of history using their Constitutionally authorized and mandated Article III powers. Even the most conservative Article III judges today agree that equal protection under the law means that any classifications the law makes are made without respect to particular persons, that like cases are treated alike, that those who appear similarly situated are not treated differently without, at the very least, a rational reason for the difference.
In analyzing an Equal Protection Clause claim, courts first ask whether the challenged state action intentionally discriminates between groups of persons. Second, and after an act of intentional discrimination against a particular group is identified either by presumption or evidence and inference, courts ask whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose. Unless a legislative classification or distinction burdens a fundamental right or targets a suspect class, courts will uphold it if it is rationally related to a legitimate end. If an action targets a suspect class, the action receives stricter scrutiny.
The eventual outcome of the gay-marriage issue and the Equal Protection Clause will largely depend on how the issue gets framed, the actual law that gets before the Supreme Court, and the level of scrutiny the Court uses: rational, intermediate, or strict. I personally think that because homosexuality is an immutable characteristic at least for some individuals the issue should be analyzed under at least intermediate scrutiny, but I personally don’t think that banning gay marriage is anything other than arbitrary and capricious state action that is motivated by purely religious reasons and should not even pass the rational-basis test.
[/quote]
Maybe I am being too picky about wording – but “capricious”? Really? Leaving aside the question of whether the sate action in question is rational, justified, etc. – a state action that matches the actions of every known state from time immemorial up until the past few years is “capricious”?
I am pretty sure that at least one ancient pagan society considered consensual sodomy an acceptable form of male bonding. [/quote]
That’s highly questionable, and there’s also a good case to be made that Greek and Roman society was not ‘civilised.’
[quote]jjackkrash wrote:
I’m not relying on any “radical activist judges,”
[/quote]
You’re relying upon their interpretation which is based on a ‘living Constitution’ - i.e., make it up as you go along. The Constitution is a contract between the people, states and federal government. You don’t change and reinterpret the conditions of your mortgage to suit your current situation. It’s a binding contract, not ‘living and breathing.’
You cited Supreme Court precedent and that’s what I responded to.
The concept of ‘separation of church and state’ was invented by a Klansman after the Second World War based on a single phrase taken out of context from a private letter by Thomas Jefferson. It has absolutely no Constitutional basis and would’ve been laughed out of the Constitutional convention.
Abusing them…
State legislation banning the recognition of gay marriage clearly meets that requirement as I have explained. Gay men are subject to the exact same conditions as straight men - i.e., neither can marry other men.
Which it doesn’t. It applies to all men, not just gay men.
Which it most certainly could - the defence of the institution of marriage.
Many have given reasons here why it is not ‘motivated by purely religious reasons’ and even if it were, it still provides equality under the law and as such bears no burden to prove any of that. State legislation banning gar marriage doesn’t specifically target gay men. “Straight” men are also banned from entering into marriage with another man.
You might be confusing civilization with proper morality. Not that they are opposites; but they are not the same things, either.
Anyway: I was being a little picky about one of your statements, while agreeing with your larger point about “marriage” between two males or two females. Up until recently, even most people who (erroneously) thought that homosexual sex was ok never thought that two people of the same sex should be able to have a legally-recognized marriage with each other.
[quote]smh23 wrote:
Unnatural is a meaningless word.[/quote]
Actually it doesn’t. When people become intellectually lazy and commit equivocation (natural is not what happens in nature, we’re speaking about philosophical terms not boy scouts and how to set up tents), then yes it would seem natural is not a good word. However, when people speak of natural or unnatural they are speaking in the metaphysical (whether they realize it or not). This is the sad part about not having a classical education as the foundation of our liberal education as children/higher education.
If you’d read Aristotle/Aristotelian philosophers, who were heavy hitters in our understanding of metaphysics it would be apparent that the word “natural” refers to something’s “nature,” something being “natural” means that that means is ordered to that “being’s” proper “end.” So, what is “natural” is what helps something be properly “ordered” to its “end.”
The quoted words are metaphysical words. Basically, somethings “being” is derived from its “end.” If something is “natural” it helps that something is a “means” to that “end.”
Not all things that are unnatural though, are bad. For example, the example of hands aren’t made for walking, so if someone walks on their hands rather than their feet, it is unnatural. However, it does not affect the final end of hands or as a person, particularly. Referring to the flourishing of the human race. Is it good to walk on your hands? Matters what end it is, if the end is entertainment, then yes. If it is for running races, then it is bad because it does not mean the fulfillment.
Not sure if tha tmakes sense. I’m tired, if it doesn’t I’ll attempt to edit such things on the morrow.
[quote]SexMachine wrote:
Civilised societies have always considered sodomy an abhorrent and unnatural act.
[/quote]
I am pretty sure that at least one ancient pagan society considered consensual sodomy an acceptable form of male bonding. But even they did not think that two males or two females could marry each other – pretty sure that one is new, at least as a widespread idea.[/quote]
Never, not even currently (as much as liberals want it to be), has any society assumed to put same-sex relationships on par with child bearing relationships between a man and a woman. I believe we should heed the democracy of the dead on this issue. Mostly because it’s rather common sense that if you have no babies you have no future generation.
Not according to the Supreme Court. And I am not really interested in revisiting Marbury v. Madison. I frequently disagree with Supreme Court decisions, but I don’t dispute that the Supreme Court’s interpretation of the law trumps mine. [/quote]
There is no Supreme Court precedent providing a basis to strike down traditional marriage laws via the First Amendment.
I believe that marriage rights should be extended to include a union between any two consenting adults.
It is my arbitrary definition pitted against yours. I don’t accept yours any more than you accept mine. It is not an institution geared toward procreation simply because you say it is.[/quote]
Well, this is false. You can’t simply pretend the history and policy marriage starts fresh every day, and we get to ignore what the institution actually means and has meant to society. That might be convenient to your argument, but that doesn’t make it so.
Marriage is geared toward procreation - if you don’t want it to be, that’s fine, argue why it shouldn’t be. But you can’t pretend or ignore the reality.
But also note your concession - you think the definition of marriage is simply an “arbitrary” determination by individuals. If that is the platform from which you are operating, okay - but you’ve forfeited the ability to argue that that gay marriage is “required” as a matter of equality or some other higher principle that transcends individual preferences.
But see, you continue to make this error - marriage does mean something. Something very specific, and it functions for very specific reasons. If you want to change that meaning, fine. But admit it.
It isn’t a misdirection.
Well, wrong, we don’t pass laws for the heck of it - we pass laws to help improve society or to solve some kind of social problem. In a free society, that is the basic default - freedom with the guardrails of public policy.
Think of the basis for your claim here - “every idea should become law unless someone can show it hurts the common good.” Huh? No. The opposite.
As applied, there is no problem to solve with gay marriage. Its advantages are zilch. It doesn’t fix anything that is broken. With no “check” in the advantages column, there is no justification for passing such a law, and that is where we stop, period.
If we felt like going unnecessarily further, we could note its disadvantages - as you claim is required (but isn’t). Easily, the “equalization” of gay marriage to traditional marriage sends a signal that one marriage and one kind of family unit is “equal” to another, and that undermines the entire point of the public policy of marriage - that there is one superior way kids should be born and raised, and everything else is lesser.
We need to be in the business of repairing traditional marriage as it pertains to public policy, not undermining with alternatives, for the simple fact that society wants - indeed, needs - children to be raised by the permanent union of the adults that brought the children into the world. Any idea that undercuts that premise is not one we should actively pursue.
I’ve stated it this way before, and maybe it’s worth repeating - public policy is a Means, not an End. We don’t enact laws for the hell of it, as Ends in and of themselves. We enact laws as a Means to some other End.
This is exemplified by the public policy of marriage - it is a Means, not an End. The public policy of marriage is an instrument to achieve some End in society: stable families, stable society, encourage the best environment to raise kids.
With that basic civic principle in mind, gay marriage advocates get very confused on this issue, and they struggle to understand the basic idea of their opponent’s position - that gay marriage is a solution in search of a problem, and therefore fails the Means/Ends test, and there is no reason to institutionalize it.
[quote]thunderbolt23 wrote:
I’ve stated it this way before, and maybe it’s worth repeating - public policy is a Means, not an End. We don’t enact laws for the hell of it, as Ends in and of themselves. We enact laws as a Means to some other End.
This is exemplified by the public policy of marriage - it is a Means, not an End. The public policy of marriage is an instrument to achieve some End in society: stable families, stable society, encourage the best environment to raise kids.
With that basic civic principle in mind, gay marriage advocates get very confused on this issue, and they struggle to understand the basic idea of their opponent’s position - that gay marriage is a solution in search of a problem, and therefore fails the Means/Ends test, and there is no reason to institutionalize it.[/quote]
I do think there would be less a demand for Gays to marry if there were not a tax code that discriminates
Not according to the Supreme Court. And I am not really interested in revisiting Marbury v. Madison. I frequently disagree with Supreme Court decisions, but I don’t dispute that the Supreme Court’s interpretation of the law trumps mine. [/quote]
There is no Supreme Court precedent providing a basis to strike down traditional marriage laws via the First Amendment.
[/quote]
The above quote was stating the general principle that “the Establishment Clause of the First Amendment prohibits a state from promoting one religious tenet over another or over non-religous tenets unless the state has a legitimate secular interest in doing so,” and I never said this principle has been applied by the Supreme Court to “strike down traditional marriage laws.”
[quote]thunderbolt23 wrote:
I’ve stated it this way before, and maybe it’s worth repeating - public policy is a Means, not an End. We don’t enact laws for the hell of it, as Ends in and of themselves. We enact laws as a Means to some other End.
This is exemplified by the public policy of marriage - it is a Means, not an End. The public policy of marriage is an instrument to achieve some End in society: stable families, stable society, encourage the best environment to raise kids.
With that basic civic principle in mind, gay marriage advocates get very confused on this issue, and they struggle to understand the basic idea of their opponent’s position - that gay marriage is a solution in search of a problem, and therefore fails the Means/Ends test, and there is no reason to institutionalize it.[/quote]
Marriage is a legal benefit conferred by the state that implicates property and custody rights that is granted to one group and irrationally withheld from another based on an immutable characteristic. There are no good, non-discriminatory reasons to withhold this benefit from gay couples merely because a bare majority "disfavors’ their lifestyle or thinks homosexuality is “icky.” Your characterization that its a “solution searching for a problem” does not accurately describe the issue.
[quote]thunderbolt23 wrote:
I’ve stated it this way before, and maybe it’s worth repeating - public policy is a Means, not an End. We don’t enact laws for the hell of it, as Ends in and of themselves. We enact laws as a Means to some other End.
This is exemplified by the public policy of marriage - it is a Means, not an End. The public policy of marriage is an instrument to achieve some End in society: stable families, stable society, encourage the best environment to raise kids.
With that basic civic principle in mind, gay marriage advocates get very confused on this issue, and they struggle to understand the basic idea of their opponent’s position - that gay marriage is a solution in search of a problem, and therefore fails the Means/Ends test, and there is no reason to institutionalize it.[/quote]
I do think there would be less a demand for Gays to marry if there were not a tax code that discriminates
[/quote]
Not sure about that.
France allows same-sex civil unions since 1999.
Despite this, LGBT organizations still complain and ask for gay marriage.
If anything, the demand for it has increased, not decreased.
Sometimes because its advocates badly want their own “pat on the back”.
Sometimes because they know it would be a great way to further undermine “the heteronormative, patriarcal culture”.
Sometimes i’m tempted to becomes pro-gay marriage myself for this very reason.
But then i remember that if i want to promote my own alternative culture i can and should do it without “undermining” someone else’s culture.
You’re relying upon their interpretation which is based on a ‘living Constitution’ - i.e., make it up as you go along. The Constitution is a contract between the people, states and federal government. You don’t change and reinterpret the conditions of your mortgage to suit your current situation. It’s a binding contract, not ‘living and breathing.’
[quote]
This is getting a little far afield, but I assume you are a strict textualist. Can you point me to the text in the Constitution that provides interpretive guidance? Or the part that says: “this document should be interpreted” using any particular cannon of statutory construction? Or that it should be interpreted consistent solely with the “original intent” of the founders who lived in a agrarian, pre-indutrial society? Or that it should be interpreted like a mortgage for that matter? The founding fathers could have easily included such guidance in the text if they had wanted to or if they actually agreed on any of these issues.
Also, based solely on the text, can you tell me the founding father’s intent regarding how the Fourth Amendment protects your internet accounts from unreasonable searches or how it protects cell phone conversations?
Furthermore, why would you want a document that states the governing, overarching principles of the governance of our society to be viewed like a mortgage? Contrary to your implied assumption above, mortgages can be modified or set aside by courts for any number of legal and equitable reasons. Mortgages also generally spell out all the rights between the parties for a particular transaction and are limited in duration, then they terminate and are cast aside. Our Constitution just isn’t like a mortgage in a number of important ways and I sure wouldn’t want it to be.
Marriage is a legal benefit conferred by the state that implicates property and custody rights that is granted to one group and irrationally withheld from another based on an immutable characteristic. There are no good, non-discriminatory reasons to withhold this benefit from gay couples merely because a bare majority "disfavors’ their lifestyle or thinks homosexuality is “icky.” Your characterization that its a “solution searching for a problem” does not accurately describe the issue. [/quote]
Yes, it does, and you keep running in circles. The state confers benefits on couples who get and stay married - why? Not for the hell of it. There is a reason - it functions as a Means to and End, to encourage/control behavior to good social outcomes: permanent unions of the child’s biological parents.
There are plenty of good, rational, non-discriminatory reasons to “withhold” this benefit to gay couples, and they have been explained - the benefit is designed to promote some End, and enacting gay marriage would not and does not promote that End or any other one. That is the most obvious good, rational, non-discriminatory reason to “withhold” gay couples marriage - it is an apples-oranges problems, and straight unions have far different issues to deal with from a public policy problem than do gay couples, for what should be obvious reasons.
Gay marriage advocates are going to have to try some argument other than repeating bad arguments over and over again hoping that in time they’ll become right. Gay marriage advocates can’t simply, parrot-like, repeat over and over “it’s just unfair” - they actually have to produce logical counter-arguments as what problem gay marriage is actually supposed to solve, or why gay couples get benefits and consenting polyamorous relationships don’t.
What is humorous is that traditional marriage laws are the work of “discrimination” - as if when marriage laws were put on the books, the heterosexuals got together and said “hey, I know how we stick it to the gays - let’s erect something called ‘marriage’ rewarding straight relationships and leave them out. Take that, gays!”
[quote]thunderbolt23 wrote:
I’ve stated it this way before, and maybe it’s worth repeating - public policy is a Means, not an End. We don’t enact laws for the hell of it, as Ends in and of themselves. We enact laws as a Means to some other End.
This is exemplified by the public policy of marriage - it is a Means, not an End. The public policy of marriage is an instrument to achieve some End in society: stable families, stable society, encourage the best environment to raise kids.
With that basic civic principle in mind, gay marriage advocates get very confused on this issue, and they struggle to understand the basic idea of their opponent’s position - that gay marriage is a solution in search of a problem, and therefore fails the Means/Ends test, and there is no reason to institutionalize it.[/quote]
is this the definition of the means or end you are referring ? Thanks