Wednesday, November 5, 2008

So much I don't understand

In all the euphoria over the election of Barack Obama to the Presidency of the United States, some other stories were briefly overshadowed.

Several states passed one version or another of attempts to deny certain rights to people based on their sexual orientation.

I understand that many people believe that Homosexuality is a sin.

What I don't understand is why that religious based belief should be the law of the land. What is the justification for discrimination against people because of who they love??

I just don't understand.

33 comments:

The Coach said...

Walt -

This is a complex issue and often gets treated with short shrift.

The argument that "religious based beliefs" deny some people "rights" based on "who they love" fails logically in several ways.

1 - not all opposition to homosexuality is religiously-based. There are numerous sociological reasons to oppose homosexuality: social security, welfare, healthcare, adoption, taxes, the well-documented proliferation of sexually transmitted diseases among homosexual men because of the culture of short-term physical relationships and a lack of long-term commitments of gay couples.

2 - your definition of the word "rights" begs the question in that it assumes that everyone has the right to marry whomever they choose. It assumes that marriage already means a legal union with any other person. But it doesn't, marriage currently means a legal union between a man and a woman, which is what the legislation is aiming to maintain. It is not the "right" of every citizen to have their way.

3 - Religion-based values are the law of the land in many cases, yet (and I don't know this to be true, but I think it's a fair assumption) you are not arguing against the removal of statutes against theft, burglary, or murder - despite those prohibitions being religiously-based.

The erroneous conclusion that the voters in California voted against homosexual marriage solely because of a religious prejudice fails to account for non-religious reasons and also, taken to its logical conclusion, would mean that any legislation that has any religious ties should be removed.

The slippery-slope fallacy will go both ways (allowing gay marriage opens the door for bestial marriage, polygamy, and pedophilia vs. denying gay marriage will soon lead to a return of government intrusions in my bedroom), but that is not my argument here.

Allow me to suggest that besides religious "sin-language," prejudice against "un-natural" behaviors, or old-fashioned bigotry, there are reasons to oppose gay marriage.

Matty said...

Mike's points were well stated but I would also hasten to add that homosexuals are not denied any right that I currently have. I am a man, I can marry only a woman, just as any other male in this country can. On it's face, there is no difference between what I can do and what a homosexual man may do.

As is obvious, we limit people's ability to marry based on a variety of reasons, all of which are logical to greater or lesser extent. Society has a vested interest in endorsing what is deemed to be the ideal environment for raising children (the basis for the social construct of marriage). Thus they have urged the government to treat favorably traditional marriage over all other relationships.

None of this precludes homosexuals from living whatever lifestyle they choose and being married before men and under their God or lack thereof. A majority of the populace just doesn't want government (and by extension the society's) endorsement of that decision. To force this is tyranny of the minority.

You also bring up a good example of my contention that the nation is still center-right. In CA something 1.5 million people voted Obama and also the same sex marriage ban.

Uncle Walt said...

I am really confused how “social security, welfare, healthcare, adoption, taxes” constitute a reason to oppose homosexuality. What does that mean?

As for “the well-documented proliferation of sexually transmitted diseases among homosexual men because of the culture of short-term physical relationships and a lack of long-term commitments of gay couples”, I suspect you would have to oppose heterosexuality as well. It’s not just homosexuals that enjoy short term physical relationships. Plenty of heteros, particularly men like that as well. And with a divorce rate among hetero couples of 50% or more, and rates of infedility among married couples around 70% for both men and women, I am not convinced that heterosexuals actually have the high moral ground to justify condemnation of homosexuals.

I have know many homosexuals in my life, some have been in long term exclusive relationships, others have been searching for short term fun, others have been searching for the perfect mate, just like heterosexuals.

I should probably step back to a larger question. What do you mean by opposing homosexuality?? My original post was about a more narrow question of why some in society want to deny homosexuals access to the civil marriage contract.

What does your opposition entail?

Uncle Walt said...

Marriage is a civil contract that two people enter into. Entering this contract imposes some shared responsibility on the members and bestows certain legal benefits and protections.

And here is where I get into the question of rights. The Equal Protections Clause of the 14th Amendment. Section 1 of the amendment says in part “No state shall . . . . . deny to any person within its jurisdiction the equal protection of the laws”

This forbids any state from denying to one group the rights and privileges that are otherwise available to everyone. With the exception of age based limitations, the courts have consistently denied the right of the state to discriminate against a group of its citizens. In order to justify any discrimination, the states have had to show that there is a compelling state interest for the discrimination. And I do not see the compelling state interest in discriminating against homosexuals. That was, at its core, the point of my original post.

I don’t assume “that marriage already means a legal union with any other person.” I understand that the traditional definition of marriage is a hetero definition. But the traditional definition of marriage until just recently didn’t allow for marriage between different skin colors. But marriage from the perspective of the state is a civil contract. A contract that carries with it obligations and that it assigns benefits to, but at its core, a civil contract.

So I go back to the Equal Protections clause of the Constitution of the United States of America.

What is the compelling state interest in placing gender restrictions on who can enter into this civil contract?

Crimes like Theft and Murder are not crimes because they violate the 10 commandments but because those crimes all have victims. Our constitution prohibits “Congress shall make no law respecting an establishment of religion”. That itself forbids the government from passing laws that are purely based on any religion. Nations that codify tenants of faith into their laws are called theocracies. Think Iran. Not the United States. There is nothing erroneous about the concept that any law that is only justified by religion violates our Constitution.

Allowing gay marriage would not/could not lead to bestial marriage. Animals are not capable of entering into a contract, any contract. Neither are children. There is easily a compelling government interest in preventing children from entering into any contract, marriage included. The only slippery slope, if there is one, is the one that leads to plural marriage. And I think the state might be able to defend limiting the marriage contract to 2 people. Even if not, denying equal protection to 10’s of millions of Americans because it might allow a tiny number of plural marriages doesn’t really justify the restriction.

I find the children argument interesting “Society has a vested interest in endorsing what is deemed to be the ideal environment for raising children (the basis for the social construct of marriage).” And the state could put that forward as a compelling state interest. I disagree not surprisingly. But it is an argument that could be made.

Although many of the burdens and benefits of marriage civil contract have to do with the rearing and status of children, many others have nothing to do with children. Survivor inheritance benefits, assumptions about next of kin decisions, marriage shield against testifying against your spouse, the tax benefits some couples get from filing jointly, and others are not related to the rearing of children. I don’t see any compelling state interest in limiting those rights based on gender.

Although I agree that “prejudice against "un-natural" behaviors, or old-fashioned bigotry, . . . are reasons to oppose gay marriage”. But are they valid reasons?? Do you really support bigotry and prejudice as a valid basis for our laws??

This is, I think, is a remarkably weak argument to say, “A majority of the populace just doesn't want government (and by extension the society's) endorsement of that decision. To force this is tyranny of the minority.”

To deny a minority a right available to the rest of society is the tyranny of the majority and is the reason there is a bill of rights. Allowing people to enter into a contract isn’t a government endorsement of the contract, only the government’s agreement to be an impartial arbiter if one or both parties want to end the contract or if one or both parties violate the contract or if the parties disagree about the terms of the contract. That’s enforcement not an endorsement.

None of that seems to me to present a compelling state interest in denying the equal protection of the laws to a people because of the gender of the person that they love.

Matty said...

I don't really understand how you can deny that marriage has a definition. It's Orwellian to say that you can change the concept and keep the same word. Marriage is first and foremost a religious commitment which has subsequently been adopted as a civil union. Thus to say that man and wife is no longer the definition is to discount to concept that words mean anything. A hot dog is such because of what it contains. If you make a hotdog out of carrots instead of meat, fine, but don't insist on calling it a hotdog. It is, in its essence, something different. 2 people who love each other, live together and have a commitment (perhaps even legal and familial commitment) are not necessarily married. They can be brother/sister, mother/daughter or husband/wife but not all of those can be called marriage.

It is in that sense that the gay rights movement has brought what they do in their bedroom out into the public sphere (not the traditional crowd invading their bedroom). The only difference between what they claim and the first 2 relationships mentioned above, is the sexual component.

Regarding to constitutional protections. Defining a person as "the whom I love," as in a homosexual is being denied marriage to the person they love is false one. The law says one man, one woman and who you love is not even a cosideration. To define a person's status as simply "the one Iove" seems to be a tenuous one. As I said before, the law is equal and non-discriminatory in that we are all allowed to marry one person of the opposite sex. I'd also like to mention that people are also not allowed to marry family members, even though that has been a major fixture of many societies through history. This is an area of non-religious limitations placed on marriage where the state has deemed there to be a compelling interest.

You mention that the only slippery slope argument is that of polygamy but I think that is short-sighted. When Texas sodomy laws were ruled unconstitutional (which, by the way, was a no brainer), the gay lobby told us that this was not a precursor to efforts towards gay marriage. That was obviously not the case. This is part of the reason that traditional marriage advocates are very leery of their current campaign. If all relationships are created equal should homosexual sex ed be taught in schools? If not, how can you justify this and which students attend which course? There are a myriad changes that attend "normalizing" a previously fringe lifestyle and I don't think it is bigoted for society at large to not approve of these changes.

I am also going to have to disagree with your assessment that marriage is primarily a construct designed for the raising of children. The fact that not all couples have children doesn't change the initial purpose of the relationship. The sexual component in heterosexual relationships is partially for procreation and thus a commitment between the two parties involved is also related to the raising of children.

I also am very opposed to the equating the opposition to gay marriage to anti-miscegenation laws. In my original comment, I stated that the essential fairness of current marriage laws was that a gay man could marry any single individual that I could marry. In the case of a black man and me under anti-miscegenation laws, that is not the case (ie. I could marry a white women and he could not) and as such, was unfair and unconstitutional.


I'm hungary and tired so I think that'll be the end of this one. Talk to you later!

Uncle Walt said...

You made my case for me.

"Marriage is first and foremost a religious commitment which has subsequently been adopted as a civil union."

As a purely religious question, you are probably right that homosexual marriage would not be acceptable.

But this is not a purely religious question. Marriage has become a civil contract subject to the laws of the states. And therein lies the problem. Forbidding one group from having the same rights and privileges as the society as a whole is discrimination. A law that denies people the right to enter into this contract based solely on their gender is discrimination. Discrimination of this type can be acceptable if there is compelling state interest in the discrimination. I can see no compelling state interest in the discrimination.

The argument that there is no discrimination because a man can marry any woman just doesn’t make sense. Should I chose to marry, I see no reason for the state to be deciding which group of other humans I can take as my mate. We have no decided, as a society, that race is no longer a valid reason to restrict access to the marriage civil contract. To me, the parallels are very clear. I know of no other civil contract that the state limits based on gender. Two men can enter into a contract to buy a car, to run a business, or any other lawful purpose.

What is the compelling state interest in defining the gender of those who would enter into the civil contract called marriage?

If homosexuals were allowed to enter into a non-religious contract that had the same rights and privileges as the current marriage contracts, this would be much less of an issue. Perhaps it would be no issue at all. But the current marriage civil contract has benefits that homosexual couples are denied. This denial of benefits is not a religious question, but a legal one. Denial of benefits based on gender is discriminatory. And I have heard no compelling state interest that justifies that discrimination.

Your assertion that homosexuals bringing what they do in the bedroom into the public sphere misses the point. Homosexuals want to get married not so they can have sex, in or out of the bedroom, they want to get married because they love each other in the same way and with the same intensity as you and Sarah or your mother and father. They want to get married as a public celebration of their love, not of their sexual interests. Like heterosexual couples, sex is an expression of their love, not the reason for their union.

There is very little relationship between the striking down of the sodomy laws and the debate of homosexual marriage. In the sodomy case, the court ruled that the state had no business banning a specific private consensual sex. The ruling was based on the Right to Privacy asserted in Roe v Wade, not based on the equal protections clause. It really is two different legal questions.

I wasn’t claiming that “marriage is primarily a construct designed for the raising of children”. I was responding to your claim that “Society has a vested interest in endorsing what is deemed to be the ideal environment for raising children (the basis for the social construct of marriage).” I personally find the child rearing question to be completely irrelevant to this question. I was only responding to you.

You got off on a side topic with the issue of who I love. What I said was “None of that seems to me to present a compelling state interest in denying the equal protection of the laws to a people because of the gender of the person that they love” The critical question was not one of love, but denying equal protection based on gender.

Whatever you think of homosexuality I have seen no justification for denying to committed devoted homosexual couples the same legal benefits that homosexual couples have.

What is your justification for denying to homosexual couples:

• The ability to file joint tax returns
• The ability to inherit your spouse’s estate tax free
• The legal assumption that your spouse speaks for you when you cannot speak for yourself
• The right to social security benefits based on your spouse’s income when that spouse dies.
• Among others

You are focused on the definition of the name of the contract, I am focused on the legal consequences of the denial of access to the contract.

Matty said...

You either missed or miss stated most of my points so I don't even know where to begin. It would seem however that we have apparently come to some agreement.

You concede that marriage is a contractual agreement based on a religious commitment and that the religious definition is and always has been man and wife, correct? I concede that baring someone from certain legal agreements is unfair. Thus I think it's perfectly acceptable to develop a method to extend many of the rights and privileges associated with marriage to two people living in some similar relationship.... just don't call it marriage.


Words have definitions and if we ignore that then we can't even communicate ideas. Marriage is a defined concept and people (apparently from the election results) don't want it changed.


If you put on a ballot the ability for non-married people to enter into a similar contract I suspect there would be a much better reception.

I will still contend that it's the prerogative of the populace to ask their government to honor one type of relationship above all others based on the societal value of that relationship. You may want to re-read my point about child-rearing. It is primary reason for marriage and a society's recognition and endorsement of that shouldn't be misconstrued as stopping other people from living as they choose.

The rights you outline are actually not rights at all. They are specific privileges granted based on societies recognition of a certain relationship as being the ideal.

Uncle Walt said...

I apoligize for misstating any of your points. That is not my intention.

You are right, we do agree on much in this.

You concede that baring someone from certain legal agreements is unfair. I go a step further and contend that its unconstitutional, however we both agree that its unfair.

And here is where we disagree

"I will still contend that it's the prerogative of the populace to ask their government to honor one type of relationship above all others based on the societal value of that relationship"

I hope that I am not misstating you, but when you use the term "the populace", I understand you to be meaning the majority.

I do not agree that the populace or majority has the right treat a minority unfairly just because they want to. The constitution in fact explicitly forbids treating a group unfairly without good cause.

I won't argue the different between a right and a privilege. Whether you call the things I listed as rights or privileges or some of both, the simple fact remains that denying homosexual couples access to the legal benefits of marriage imposes on them a real cost.

Uncle Walt said...

I apoligize for misstating any of your points. That was not my intention.

You are right, we do agree on much in this.

You concede that baring someone from certain legal agreements is unfair. I go a step further and contend that its unconstitutional, however we both agree that its unfair.

And here is where we disagree

"I will still contend that it's the prerogative of the populace to ask their government to honor one type of relationship above all others based on the societal value of that relationship"

I hope that I am not misstating you, but when you use the term "the populace", I understand you to be meaning the majority.

I do not agree that the populace or majority has the right treat a minority unfairly just because they want to. The constitution in fact explicitly forbids treating a group unfairly without good cause.

I won't argue the different between a right and a privilege. Whether you call the things I listed as rights or privileges or some of both, the simple fact remains that denying homosexual couples access to the legal benefits of marriage imposes on them a real cost.

The Coach said...

It looks like Matt has done a good deal of the answering of your questions to my post.

I concede your point that heterosexual marriage/relationships do not have an excellent track record (though the oft-misunderstood "50% of marriages end in divorce" is not actually 50% of first marriages; it is the average of all marriages, including sequels which are usually as bad as the previous). And while I hesitate to quote bumper stickers, if we really want to protect marriage, we could just "ban divorce." It misses the point to say that heterosexuals also aren't very good at maintaining relationships. My point is that gay culture (particularly if not exclusively) promotes and idealizes casual sex -- what a gay friend of mine calls "the gay man's handshake." This reckless behavior is likely not more dangerous than the behavior of drunken (or sober) college students on any given night, and it is certainly a part of sitcom normalcy; that does not mean that it should be condoned or encouraged by the advancement of gay culture through the courts.

Walt - you note that the 10 commandments are crimes with victims and that homosexual marriage has no victims. What about children of broken homes? The studies show that children of traditional (married father and mother) couples are more likely to succeed academically (in terms of both completion rates and GPA), are involved in less crime, have lower substance abuse issues, have lower teen pregnancy rates, and are more successful as adults (in terms of not just earning power but also employment longevity and stated happiness) while children from homes without both male and female parents living in the same home are not as successful in these three arenas. I suppose it is the parents' prerogative to not encourage their children's success, but the government (whose best interest is served by an educated, productive, non-criminal populace) should not be encouraging situations that demonstrably enable uneducated, unproductive criminals. I am not saying that children of homosexual couples (or of single, divorced, unmarried, or polygamist couples) are doomed to be these things, or that the children of married heterosexual couples will not be these things, but the tendencies are there and are statistically significant.

I have a question regarding sex education in schools (which is the purvey of the state). To what extent does the state get to form the sex ed curriculum particularly in light of the individual's freedom of religion - in that the inclusion of sex education that normalizes extramarital sex (according to the traditional def. of marriage) is violation of my constitutional right to freedom from government interference in my religion?

Does espousing a religious belief that opposes gay marriage constitute hate speech? The ACLU thinks it does and is pushing for such legislation.

Or does this leave us at choosing one person's right to freedom of religion over someone's freedom to choose with whom they can legally enter a contract with?

Uncle Walt said...

Welcome back Coach,

As much as I love the discussion with Matt, I am very happy to have additional participants.

Whatever you see in what you call Gay Culture as a whole, I think it’s unfair to punish those homosexual couples that want to commit themselves legally to each other because of the irresponsible behavior of people who also happen to be homosexual.

And even if you think that makes sense, punishing committed homosexual couples because of the actions of other homosexuals is clearly unconstitutional.

I am not trying to defend irresponsible behavior in any group. But you cannot legally or morally punish responsible members of a group for the irresponsible actions of others in that group.

There is no question that growing up in a home with two stable, loving, and involved heterosexual parents clearly gives kids the best chance in life. That is clear from almost every study that I have heard of on this. However, we all know of kids of exactly that environment who didn't turn out well and kids from other environments turned out very well. Our President Elect is a testament to the ability of people to succeed no matter what kind of home they grew up in.

And as valid as your point is statistically, it’s not relevant to the legal question. The government cannot get into the business of grading groups and only allowing groups that get good enough grades to fully participate in society. Whatever you might think about homosexuality, I don’t really think you want government to be in a position to do that.

The content of sex education courses seems to me to be a side issue with no relevance to the legal issues. I contend that if you choose to ensure that your children understand your vision of morality and sexuality, they are far more likely to follow your guidance than any moral or character guidance they might get in school. Teaching children anything about sex does not have any impact on your freedom of religion. I understand that you, and millions of other, feel that homosexuality is by its nature immoral. But I believe that you can impart your values to your children without advocating for intolerance. I see no conflict between your religious and moral beliefs and teachings and teaching acceptance of the differences between us. Your children will grow up in a world where homosexuals are an open part of society. They do not have to admire or emulate homosexuals or homosexual behavior but I think they need to accept that others in society are different than they are.

I am not familiar with the ACLU effort you are talking about. In fairness, some who are opposed to gay marriage have used very inflammatory speech. Some who support gay marriage have also used very inflammatory speech. I do not support the criminalization of speech. I think, by and large, the courts will also not accept the criminalization of speech. The ACLU sometimes defends some expressions of belief and opposes some others. I am a believer in and supporter of the ACLU, but I do not agree with them on every issue, just on most issues.

I don’t understand how allowing gay couples to enter into the civil contract called marriage has any impact on your freedom of religion. If, based on your religious faith, you believe that homosexuality is immoral then I encourage you not to marry a homosexual. But your belief that homosexuality is immoral is not justification for denying homosexuals access to any civil contract.

In the end, this is debate is not about homosexuality, it’s about justification for discrimination based on gender.

Matty said...

Walt,
We're going to have end this one soon. I swear it take 10 minutes to scroll through this discussion.

I am starting this with only 2 points but it may end up longer.

I think we are less likely to come to an agreement on the morality of homosexuality than anything else. Coach and I have come to a conclusion and it helps form our understanding of the social impact of homosexuality and gay marriage. We will always be on the opposite sides of that conclusion. My point mainly lies in the right of a society via the government not to recognize (what I would also call endorse) this union.

You say that its' debatable whether the items you listed are rights or privileges. I say they are probably some where in between. They can't be rights because they aren't protected by the constitution. We have no constitutional right to social security, or tax free estates. What you're talking about is policy. Tax policy, social security policy, legal medical policy. They aren't really rights.

So now the debate of rights becomes whether one relationship must has a right (under equality) to policy benefits offered to another relationship. Because, as mentioned above, I believe that there is a societal ideal towards a husband/wife marriage, it should be within a society's rights to determine to give that relationship the benefits of policy. That is how government is used to encourage what society sees as a positive activity (like tax breaks for charitable giving).

Yes, by society I mean the majority.

You say that it is unconstitutional to treat a minority unfairly because the majority wills it. I don't see it as unfair to differentiate between two different relationships and award benefits to the one which is seen as preferable.

Since I don't see this as inherently unfair, I can't see it as unconstitutional. In fact, I think to impose gay marriage on an unwilling society is another "un-" word... undemocratic.


I quick clarification on the gay marriage/anti-miscegenation laws. The reason it is a false comparison is that we know that that there is no significant difference between people of different racial backgrounds. Thus a relationship between races is no different than that within races.

We do know, however, that there is a significant difference between male and female. At the very least physical and I would contend spiritual and emotional as well. Thus it is only logical to notice that there is a difference between a relationship between sexes and that of the same sex. I hope that clarifies the distinction, whether you agree with it or not.


Also, you concluded your last one saying this is discrimination based on gender. I don't see how that is true since we are talking about (for the most part) marriage in which people of both genders can participate. Neither gender is being excluded. Maybe you might amend that to say sexual preference.

Finally, the word verification for this comment is "marder." No definition....it just sounds funny.

update: my first try at word verification didn't go through so this one is "uphippor." Even funnier.

Uncle Walt said...

I think the morality of homosexuality is irrelevant to the discussion. Morality is a very personal decision. Your morality is bases on your beliefs and background, mine comes from my beliefs and background. I don't expect us to agree on the morality of homosexuality.

I have no problem with calling the benefits of marriage privileges instead of rights. I do not argue that we have a constitutional right to tax free estates. I argue that there is no justification for denying couples tax free inheritance based on their gender. If it’s available to hetero couples, I see no reason why it should not be available to homosexual couples. My persistent question is what is the compelling state interest in denying these privileges to people based on their gender?

And your answer to that question is "I don't see it as unfair to differentiate between two different relationships and award benefits to the one which is seen as preferable."

Where does that stop?

You dismiss the comparison of race based discrimination from gender or sexual preference based discrimination because "is that we know that that there is no significant difference between people of different racial backgrounds". The people who supported those laws when they existed believed that blacks and whites were fundamentally different. I suspect that if you had put the question of interracial marriage to the voters in many Southern states after the discriminatory laws had been struck down, that ballot initiative would have passed just like Proposition 8 and other like it passed in 3 states. Just because it’s the will of the people doesn't make it right.

So where does it stop?

Can we deny the benefits of marriage to those who don't have children? Once you start denying equal protection under the law based on some vague and subjective "to differentiate between two different relationships and award benefits to the one which is seen as preferable" what is next.

Do we deny the benefits of marriage to couples who are swingers? Do we deny the benefits of marriage to religious communities that don't use modern medicine?

I really don't think that we want the government making value judgments like this. I think it’s inherently dangerous to allow that.

And because it both vague and arbitrary, it is also unconstitutional.

Matty said...

Straw man alert!

The point still stands that there is no significant difference between races, whether a Mississippi farmer used to think so or not.

There is on the other hand differences between men and women. That is not arbitrary and thus to differentiate relationships based on this is not arbitrary either.... ergo, constitutional.

Done... that must be a record for me!

Uncle Walt said...

In an earlier comment you made this assertion "it should be within a society's rights to determine to give that relationship the benefits of policy."

So if the society, as evidenced by the popular vote on a ballot initiative, decides to deny the benefit of marriage to interracial couples, by your logic, that should be acceptable.

You also said "Thus it is only logical to notice that there is a difference between a relationship between sexes and that of the same sex. I hope that clarifies the distinction, whether you agree with it or not."

Since there is a gender difference between a traditional committed, loving, exclusive heterosexual couple and a committed, loving, exclusive homosexual couple, there is clearly a difference in the relationship.

But what is the difference between the two committed, loving, exclusive couples that entitles one to the benefits of the marriage contract and justifies denying those benefits to the other couple.

That is, simply, a restatement of my original question. What is the fundamental difference between those two couples, other than their gender, that, that disqualifies the homesexual couple from the benefits of the marriage contract.

Stating that the relationships are different, doesn't justify the discrimination unless you can show some characteristic of the homosexual relationship that should disqualify them.

Thats why your criteria looks vague and arbitrary. You don't provide any measure or characteristic of the relationship that justifies the discrimination.

Matty said...

"In an earlier comment you made this assertion "it should be within a society's rights to determine to give that relationship the benefits of policy."

So if the society, as evidenced by the popular vote on a ballot initiative, decides to deny the benefit of marriage to interracial couples, by your logic, that should be acceptable."

No, it can't be. Because there is no essential difference between a white/white or black/black relationship and a white/black or black/white relationship, it is still marriage. Do deny access to the institution is silly.

On the other hand there is an essential difference between a male/female relationship and a male/male or female/female and thus it is not marriage. To say that there is no essential difference is to say that bathrooms for the sexes, separate sports, and other gender related differentiation is unconstitutional as well.

Uncle Walt said...

So society cannot just arbitarily, but vote of the populace, deny the benefits of a policy to a group without justification.

I think you and I agree on that.

So what is the characteristic difference, other than the gender of the parties, that justifies denying the benefit of the marriage contract to homosexual couples?

Matty said...

The characteristic difference is this:

The traditional male/female relationship that is marriage is a construct that is designed to solidify society by giving a commitment-based relationship in which children can be raised to become productive members of society. It is male and female to give children of either sex an example of what they are to be as an adult. The process of raising children is the continuation of civilization and as such a society has a vested interest in endorsing this relationship and preserving its definition. That's why a committed gay relationship is not marriage... it is definitionally different.

That is not to say that they should be automatically barred from every benefit associated with marriage, it just isn't unconstitutional to reserve some benefits for the ideal.

Anonymous said...

Coach, Matty, Walt,

Let's break this argument into to parts - Marriage under God, and Marriage under the Law.

I think we all agree that each religion should be allowed to make its own rules about who can marry "Under God". That's what freedom of religion is all about, right?

Because representatives of a government have legal authority to marry people, if they don't include all consenting adult humans, they are EXCLUDING people, and that violates the Equal Protections Clause of the 14th Amendment.

As long as the participants are consenting adult humans, they should have the same rights under legal marriage that hetero couples do. They should be able to adopt and raise children, inherit property without special provisions, and even have barbeques and arguments about money just like hetero couples.

Are you opposed to civil unions that grant the same rights as marriage under the law, or do you just not like using the WORD "marriage" for unions that involve other than one man and one woman?

People need to stop worrying about what other people do in the bedroom. There are some very freaky places in the world where homosexual behavior is illegal, aren't we glad the US is different? If the US were to legalize gay marriage would you move to Dubai? You could even make your wife (wives???) ride in the backseat and wear a burka if you want to get really right-wing fundamentalist.

-Stiritup

The Coach said...

Stiritup -

Under your interpretation of who should get to marry whom (any consent adult human), then polygamy is still permissible. Your not-so-subtle jab about multiple wives being a right-wing fundamentalist issue really misses the point. Under Proposition 8, the "really right-wing fundamentalist[s]" as you call them don't get their way.

An ad hominem attack making this a left-wing/right-wing argument is pointless. Also, to suggest that we can separate the public square from religious influence is also pointless. The religious or a-religious worldview of the populace always and without exception come to bear in the creation of public policy.

The question is: to what extent and in what ways do we allow those personal prejudices--conservative or liberal, religious or secular--to come into play?

The mostly-secular and highly-liberal state of California (of all places) enacted a constitutional amendment that does, in fact, override the constitution. That is what an amendment to the constitution does.

It is easy for me to see that I might be drawing my conclusion on the sociological reasoning for a ban on gay marriage based on the logic of my religously-based view on homosexuality. What confounds me (and apparently, you too, Walt) is that the State of California's public drew a logical conclusion despite the liberal mindset that pervades the state.

There must be a reasonable explanation for it. Perhaps my perspective as an accused "right-wing fundamentalist" puts up the blinders on anyone with whom I take up conversation because they assume that because I believe something, it must be based on the flawed logic of my sad devotion to an ancient religion.

Also, I'm not opposed to some sort of civil union that grants to same-sex couples some of the legal benefits of marriage - inheritance, power for medical decisions, and the like.

Matty said...

Hey Stiritup, thanks for bravely, anonymously (wait, that's contradictory) venturing into an ongoing discussion. I suspect that had you taken the time to scroll through our pages of amateurish text you would have noticed that no one even sniffed at the prospect of outlawing homosexuality or the forced degradation of women (a la your burka comment).

Though we're winding down, at this point we are mostly discussing whether or not there is an essential difference between hetero- and homo- relationships.

We've already addressed that marriage is largely a religious mandate which has been adopted into civil society. I don't really see this differentiation as relevant because I am also not arguing that a religious institution should be banned from marrying 2 people (or 3 people for that matter) - I disagree with it personally but I don't want it banned.

My points have been sharped (by Walt's pointed rebuttals) into the very specific point of whether as a different relationship, homosexual "marriage" should or should not be MANDATORILY included in all the policy benefits accorded a traditional marriage by virtue of constitutional law. I say it's different and it is lawful to treat it at such (no, not ban it) by not including it in the institution that society has a vested interest in endorsing.

Thanks for stopping by. I suspect that you'll enjoy Walt's blog (as I do) since you seem to have similar perspectives.

Matty said...

My last comment should have said "marrying 2 people of the same sex"

Holy crap Walt, you've only had your site for a month or so and you already have a books-worth of comments on a post. Congrats.

Uncle Walt said...

Stiritup,

Thanks for joining in.

Hang around, I plan on talking about lots of things.

Uncle Walt said...

I understand that children who grow up in a home led by a committed, loving, and supportive heterosexual couple are more likely to be successful in life than children who are raised in a less ideal environment. But that doesn’t demonstrate or even imply that children who grow up in other environments cannot be successful nor does it demonstrate or even imply that children who grow up in that environment all turn out successful.

Based on your perspective on the differences having to do with the rearing of children, do we/should we also deprive childless couples of the legal benefits/privileges of the marriage contract? If a couple are planning on having children, do we delay the benefits until the woman is pregnant or until the baby is born?

And by excluding homosexual couples from the benefits of marriage, are you contending that all homosexual couple are simply incapable of providing a loving, caring, and supportive environment for children, are you contending that children who are raised partly or wholely by a homosexual couple are not capable of growing to be fully functional and successful adults?


If you are willing to grant some of the benefits/privileges of marriage to homosexual couples, which would you grant to them and which would you deny?

Matty said...

Walt you're putting words in my mouth...

I'll admit that this is a difficult and nuanced argument but you can't jump to conclusions.

I am not claiming AT ALL that homosexual couples are incapable of being parents or providing a loving household, but it is not the ideal.

Also, for a hetero couple, the decision not to or the inability to have children does not change the fact that the relationship that they have is still the ideal situation in which to raise a child.

Whether you see it this way or not, policy benefits for marriage are government (and thus societal) approval and endorsement of that relationship and the I don't see that the constitution precludes the prerogative of the populace to endorse this relationship over another.

Matty said...

oops I forgot...

Because the relationship is essentially different, the decision to differentiate it from marriage is not arbitrary. If it's reasoned and not arbitrary then I don't see a constitutional problem with it.

That's the essence of my position

Uncle Walt said...

I was not trying to putting words in your mouth, I ASKED if you were contending that homosexual couples were incapable of being good parents.

So you agree with me that some homosexual couples are perfectly capable of being loving, caring, and supportive parents.

I think we both agree that there are heterosexual couples who probably should not have been allowed to breed. Parents who seem dedicated to screwing up their kids as much as humanly possible.

And that is the core of my problem with your position.

You believe that it’s valid to exclude an entire group from access to a government benefit because they cannot possibly provide the statistically ideal environment for raising children. Despite that many in that group can do an outstanding job of raising children. And despite the fact that many in your preferred group do an absolutely horrible job of raising children.

If all heterosexual couples made for good parents and all homosexual couples were lousy parents you would have a good argument.

But I have seen nothing that indicates that a homosexual couple who are willing to commit themselves to each other for the rest of their lives in the institution of marriage are, as a group, worse parents than heterosexual parents.

The ideal setting for raising children is not simply that they be raised in by heterosexual parents, but that they be raised by loving, caring, involved, committed heterosexual parents.

Do you really think that children being raised by loving, caring, involved, committed homosexual parents are worse off than children being raised by heterosexual couple who ignore or even abuse their children? It would literally amaze me if you really believed that.

Yet you would still give the benefits of marriage to the lousy parents because they are heterosexual and deny it to loving and caring parents purely because they are homosexuals?

To me that is clearly unconstitutional.

But constitutionality aside, is that right or just? Punishing good homosexual parents while rewarding lousy hetero sexual parents both purely because of their sexual orientation.

You really think that is right or just?

Matty said...

All good points and good questions. My answer is that we are not rating the quality of individual people or relationships but rather the construct and institution of marriage. Thus, in my mind, the existence of a bad hetero- or a great homo- relationship is irrelevant to the conversation.

Uncle Walt said...

And you think that can possibly be constitutional.

Punishing a group for no other reason than they cannot create the ideal environment for raising children.

You acknowledge that homosexual couples can be great parents.

And that some heterosexual couples are lousy parents.

You can’t show, you don’t even claim, that the average homosexual couple make for worse parents than the average heterosexual parents.

You are willing to give the benefits to lousy hetero parents and willing to deny it to great homo parents.

And you think that could possibly be constitutional.

Excerpt from Section 1 of the 14th amendment to the Constitution of the United States

Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; . . . . nor deny to any person within its jurisdiction the equal protection of the laws.

You said “If it's reasoned and not arbitrary then I don't see a constitutional problem with it”. If you cannot show, or even claim, that homosexuals, in general, make worse parents, how can you say that denying the benefit of marriage is anything other than arbitrary.

Matty said...

This discussion is killing my productivity for the day, not mention wearing out my track pad.

The reason I claim it is not arbitrary is because it is inherently a different relationship. The reason that concept isn't contradicted by the excerpt provided is that ALL humans of either gender are allowed the benefits of marriage... by getting married. I've already explained how I (and every society over span of time) define that.

The fact that I think I have come all the way back around and reiterated a point from my first comment means that by definition we are going in circles. Thanks for the fun and feel free to respond but I think I'm done. See you in 2 weeks!

Uncle Walt said...

You can't show how a homosexual marriage does any harm to anyone, including the children.

You only reason for denying homosexual couples the benefits boils down to

Because.

Sigh

The Coach said...

Walt -

Okay - because the premises of my arguments are unacceptable to you, you believe that the only argument I am making really is "because."

I understand that you'll never agree with my premises, so that's the logical conclusion to draw. That's fine.

Your argument regarding punishing good homosexual parents and rewarding lousy heterosexual parents via the recognition/denial of the civil institution is correct: parents, regardless of sexual orientation, have the right to screw up their kids regardless of their other rights (within limits of course - murder, rape, incest, etc.)

Here's my question then: since marriage is not defined in the law (there is a common assumption of two consenting heterosexual adults joining a civil contract (based on traditional religious covenants) - and that assumption is changing, apparently), do we leave the definition of marriage up to the common assumption?

Left undefined, it doesn't matter who tries to enter the contract. Any definition necessarily limits who gets to be married; where do you draw the line?

Also, if marriage is a civil right, then how do we protect clergy from being required to perform marriage ceremonies they would object to? How do we protect their freedom and protect the freedoms of homosexuals to enter civil contracts like marriage? How do we legislate this and make protections?

I'm not trying to argue with a question; I'm really looking for an answer.

Uncle Walt said...

Hey Coach,

My argument is, and always has been, that denying a group the same rights as the society as a whole is usually unconstitutional. That is the essence of the Equal Protections clause of the 14th Amendment.

Society is allowed to discriminate against a group if they can show that they have a compelling state interest in the discrimination. That is how we discriminate against children by not allowing them to vote or drink alcohol or enter into any contract. The states have shown the courts that they have a compelling interest in the discrimination. That is also how Affirmative Action laws have survived. The states have shown the courts that there is a compelling state interest in compensating for past injustices and for current societal discrimination. That argument is fading and more and more places are banning or abandoning Affirmative Action as the effect of overt and covert discrimination recedes in American society.

Just saying that homosexual relationships and heterosexual relationships is different and that difference justifies discrimination doesn’t meet a constitutional test. If the state can show that the difference between the relationships is so significant that society is harmed or the children are harmed or the participants are harmed, then that is an argument I would be interested in hearing. But to say that the undefined differences, without showing or even hinting at any harm, are sufficient to justify discrimination strikes me as just saying Because.

I am not focused on the definition of marriage as much as I am on who can enjoy the benefits of the civil contract called marriage. I personally would have no objection to defining Civil Unions as legally equivalent to Marriages with simply a different name. Currently, even in those states that allow civil unions that mirror the legal status of marriage, the participants are denied the federal benefits of marriage and would be denied the state benefits of that state if they moved to any other state.

The term is emotionally charged and that is distorting the debate. If you take away the term Marriage, do you have any objection to granting committed loving homosexual couples access to the same rights and privileges as the civil contract called Marriage? Call it Civil Union, call it “Gays have a right to be unhappy too” call it whatever you want. If the name of the union was changed, would you object to granting the rights and privileges to gays?

I have proposed that if two people get married by a cleric of any type, then it could be called a marriage and if two people get married by the justice of the peace or a ship’s captain, then you have a Civil Union. So if two gay people can find a priest or rabbi or other cleric to marry them, they are married and if two heteros appear before the JP, they have a civil union. Let the clerics and church define marriage and take that definition out of the law.

As to who does society allow into this contract of Civil Union or Marriage, the answer would be anybody who wants to commit themselves to another person for the rest of their lives.

Unless, of course, the state can show a compelling state interest in forbidding the contract.

As to the question of forcing a priest to perform a ceremony he disagrees with, I don’t see any chance of that surviving a Freedom of Religion challenge. We already acknowledge that churches can discriminate against people who do not share their faith IF the job at hand has a religious function.

I went through an issue a few years ago where I wanted to get married to a woman of deep religious faith. What I found was that most pastors refused to marry us because I am not a person of faith. And that is their right, there is nothing here that needs additional protection.

Welcome back I am really enjoying this discussion.