[quote]CappedAndPlanIt wrote:
But, to be fair as well, it seems your argument is that the intent of marriage was not discriminatory, and intent is the only thing to be considered, without analizing the effects of the implementation. Is it a fallacy to say that, if a law is discriminatory in its application, that law is discriminatory, regardless of its intent? [/quote]
Every law discriminates. A progressive tax discriminates against wealthy people. Public nudity laws discriminate against nudist/exhibitionists. Publicly funded scholarships discriminate against dumb/lazy students.Merely asserting that a law discrininates in implementation is meaningless, because every law discriminates to a certain extent.
Moreover, courts are not and never have been charged with second guessing laws that duly passed by elected representatives. That is why the “intent/implementation” distinction is so crucial. As long as a law is passed without certain ill motives/intent or irrationality (broadly speaking, and with a few very, very narrow exceptions), courts shouldn’t intervene with the judgment of a co-equal branch’s determination as to law and policy.
If you don’t like the effects of a law (discriminates in a way you think unfair), but it has no invidious motive or is completely irrational in its enactment, what you have is a policy dispute to be resolved by elected officials representing your interests, i.e., call your Congressman.
Well, it isn’t protected, and likely won’t be, because it entails conduct that people still have reasonable disagreements about. How does it play into this? It keeps the standard of review at “rational basis”, which is highly deferential to the legislature’s enactment of the law. All that is needed for the law to survive scrutiny is that there was a rational reason to do what was done - and no one can make a straight-faced case that enacting traditional marriage was an irrational exercise of political power.
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
But, to be fair as well, it seems your argument is that the intent of marriage was not discriminatory, and intent is the only thing to be considered, without analizing the effects of the implementation. Is it a fallacy to say that, if a law is discriminatory in its application, that law is discriminatory, regardless of its intent? [/quote]
Every law discriminates. A progressive tax discriminates against wealthy people. Public nudity laws discriminate against nudist/exhibitionists. Publicly funded scholarships discriminate against dumb/lazy students.Merely asserting that a law discrininates in implementation is meaningless, because every law discriminates to a certain extent. [/quote]
I think all of your examples fall under “do” rather than “are”. I really need to figure our how to articulate that idea properly.
[quote]thunderbolt23 wrote:
Well, it isn’t protected, and likely won’t be, because it entails conduct that people still have reasonable disagreements about. [/quote]
I disagree with the “reasonable disagrements” part. Please elaborate.
[quote]CappedAndPlanIt wrote:
I disagree with the “reasonable disagrements” part. Please elaborate.[/quote]
There is no consensus as to whether homosexuality is nature, nurture, choice or how the combination of all three breaks down.
More importantly, a number people simply don’t think it justifies heightened classification for largely practical reasons, as they simply think the law doesn’t need to take a classifying approach on an issue as thorny as non-procreative sexual activity.
Thunderbolt, still curious if you know of any historical documents that would be useful in our discussion of the original intent of marriage?
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
I disagree with the “reasonable disagrements” part. Please elaborate.[/quote]
There is no consensus as to whether homosexuality is nature, nurture, choice or how the combination of all three breaks down.
More importantly, a number people simply don’t think it justifies heightened classification for largely practical reasons, as they simply think the law doesn’t need to take a classifying approach on an issue as thorny as non-procreative sexual activity.[/quote]
I’d argue that sexuality is more than just sexual activity.
[quote]CappedAndPlanIt wrote:
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
I disagree with the “reasonable disagrements” part. Please elaborate.[/quote]
There is no consensus as to whether homosexuality is nature, nurture, choice or how the combination of all three breaks down.
More importantly, a number people simply don’t think it justifies heightened classification for largely practical reasons, as they simply think the law doesn’t need to take a classifying approach on an issue as thorny as non-procreative sexual activity.[/quote]
I’d argue that sexuality is more than just sexual activity.[/quote]
Couldn’t that very easily be discrimination?
[quote]USMCpoolee wrote:
[quote]CappedAndPlanIt wrote:
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
I disagree with the “reasonable disagrements” part. Please elaborate.[/quote]
There is no consensus as to whether homosexuality is nature, nurture, choice or how the combination of all three breaks down.
More importantly, a number people simply don’t think it justifies heightened classification for largely practical reasons, as they simply think the law doesn’t need to take a classifying approach on an issue as thorny as non-procreative sexual activity.[/quote]
I’d argue that sexuality is more than just sexual activity.[/quote]
Couldn’t that very easily be discrimination? [/quote]
What? Arguing that sexuality is a broader facet of a persons identity then just the sexual activity they engage in?
How so?
[quote]CappedAndPlanIt wrote:
[quote]USMCpoolee wrote:
[quote]CappedAndPlanIt wrote:
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
I disagree with the “reasonable disagrements” part. Please elaborate.[/quote]
There is no consensus as to whether homosexuality is nature, nurture, choice or how the combination of all three breaks down.
More importantly, a number people simply don’t think it justifies heightened classification for largely practical reasons, as they simply think the law doesn’t need to take a classifying approach on an issue as thorny as non-procreative sexual activity.[/quote]
I’d argue that sexuality is more than just sexual activity.[/quote]
Couldn’t that very easily be discrimination? [/quote]
What? Arguing that sexuality is a broader facet of a persons identity then just the sexual activity they engage in?
How so?[/quote]
You’re correct. From the APA:
[quote]What is sexual orientation?
Sexual orientation is an enduring emotional, romantic, sexual, or affectional attraction toward others. It is easily distinguished from other components of sexuality including biological sex, gender identity (the psychological sense of being male or female), and the social gender role (adherence to cultural norms for feminine and masculine behavior).[/quote]
[quote]CappedAndPlanIt wrote:
I’d argue that sexuality is more than just sexual activity.[/quote]
That’s entirely my point - lots of people have lots of different arguments on this. That lack of consensus is why the law doesn’t outlaw that kind of “discrimination”.
[quote]CappedAndPlanIt wrote:
Thunderbolt, still curious if you know of any historical documents that would be useful in our discussion of the original intent of marriage?[/quote]
Not sure what you are looking for - legislative history and floor discussions among the representatives when states first passed marriage laws?
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
Thunderbolt, still curious if you know of any historical documents that would be useful in our discussion of the original intent of marriage?[/quote]
Not sure what you are looking for - legislative history and floor discussions among the representatives when states first passed marriage laws?
[/quote]
I’m not sure either, to be honest. Wouldnt there be some sort of record?
[quote]CappedAndPlanIt wrote:
I’m not sure either, to be honest. Wouldnt there be some sort of record?[/quote]
Well, specific to marriage laws, I am sure there is something like that - part of a state’s legislative record, to the extent they have such a record. Most state marriage laws are so old that I am not sure such records would have even been taken “on the record” like we think of floor debates today (i.e., you can get legislative history fairly easily in the modern age).
Often times, the law itself (in its preamble or recitations) says why the law is being enacted - example, laws often have a “Whereas, the State of New York has decided that [intent for passing the law]”.
An enterprising researcher may have already cobbled such together - I don’t know.
[quote]CappedAndPlanIt wrote:
[quote]USMCpoolee wrote:
[quote]CappedAndPlanIt wrote:
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
I disagree with the “reasonable disagrements” part. Please elaborate.[/quote]
There is no consensus as to whether homosexuality is nature, nurture, choice or how the combination of all three breaks down.
More importantly, a number people simply don’t think it justifies heightened classification for largely practical reasons, as they simply think the law doesn’t need to take a classifying approach on an issue as thorny as non-procreative sexual activity.[/quote]
I’d argue that sexuality is more than just sexual activity.[/quote]
Couldn’t that very easily be discrimination? [/quote]
What? Arguing that sexuality is a broader facet of a persons identity then just the sexual activity they engage in?
How so?[/quote]
I completely misread your question, sorry about that.
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
I’m not sure either, to be honest. Wouldnt there be some sort of record?[/quote]
Well, specific to marriage laws, I am sure there is something like that - part of a state’s legislative record, to the extent they have such a record. Most state marriage laws are so old that I am not sure such records would have even been taken “on the record” like we think of floor debates today (i.e., you can get legislative history fairly easily in the modern age).
Often times, the law itself (in its preamble or recitations) says why the law is being enacted - example, laws often have a “Whereas, the State of New York has decided that [intent for passing the law]”.
An enterprising researcher may have already cobbled such together - I don’t know.
[/quote]
How much can we really know about the intent of the law withotu such a record?
Also, would you say that marriage is a legal institution based directly on a religious institution?
[quote]CappedAndPlanIt wrote:
How much can we really know about the intent of the law withotu such a record?[/quote]
Are you serious? You don’t need the floor debates to figure that out - you just need a basic sense of history. That is easily enough for the preumption of rationality.
This is what I mean about the sort of desperate postmodern overreach to explain things backwards. No one has ever made (or can make) a serious argument of the nature you are trying to make. This hurts gay marriage proponents’ advocacy.
Based? Not exactly. It is based in both secular and religious practices and assumptions. And, to the point you are attempting to make, the fact that it has some connection to religious practices isn’t particularly relevant.
Let’s try this again:
Try it this way: subtract procreation out of the equation entirely - what compelling interest(s) does society have to promote permanent coupling of heterosexuals, if are are starting with a blank slate that ignores procreation?
[quote]thunderbolt23 wrote:
Let’s try this again:
Try it this way: subtract procreation out of the equation entirely - what compelling interest(s) does society have to promote permanent coupling of heterosexuals, if are are starting with a blank slate that ignores procreation?[/quote]
Reduction of transmission of STDs? The psychological benefits marriage provides (the ‘cultural story’)? Social ordering (as per the “Single men are dangerous and incentivizing monogamy leads to less single men” argument)?
[quote]CappedAndPlanIt wrote:
Reduction of transmission of STDs? [/quote]
There is no compelling problem to fix here. Give it a rest.
What are these? How does marriage make heteroseuxals more psychologically “happy”? Why is affirmation of their relationship from the state going to provide “psychological benefits”?
“Single men” are largely “dangerous” because they run around and sire unwanted children without appropriate restraints, and marriage is designed to civilize this problem. But that isn’t on the table - what other kind of “dangerous” behavior is marriage going to prevent?
[quote]thunderbolt23 wrote:
[quote]CappedAndPlanIt wrote:
How much can we really know about the intent of the law withotu such a record?[/quote]
Are you serious? You don’t need the floor debates to figure that out - you just need a basic sense of history. That is easily enough for the preumption of rationality.
[/quote]
Problem is everyones interpretation will be different based on a variety of factors. How do we know one persons interpretation isn’t influenced by conscious or subsconcious bias?
[quote]
This is what I mean about the sort of desperate postmodern overreach to explain things backwards. No one has ever made (or can make) a serious argument of the nature you are trying to make. This hurts gay marriage proponents’ advocacy.
Based? Not exactly. It is based in both secular and religious practices and assumptions. And, to the point you are attempting to make, the fact that it has some connection to religious practices isn’t particularly relevant.[/quote]
Not relevant? Your argument seems to be that the original intent of marriage had no invidious intent towards homosexuals. If marriage is based on a religious institution of a religion that is clearly anti-homosexual, I think it makes sense that such a religion would, in fact, have a discriminatory intent.