Supporting Gay Marriage; Not Comfortable With SCOTUS Ruling on Issue

[Dreadnaught]

But if a disorganized thing here, but I have a ton of stuff going on later today that I'm preparing for. Still wanted to quickly riff (rant?) on the issue a bit. Fuzzy has brought up some particular reasons why the Supreme Court's decision not to hear gay marriage cases could result in much narrower rulings than are anticipated.

But let's assume for a moment that the Court is preparing to make a broad ruling over whether it violates the constitution to prohibit gay marriage. I slept on it a bit and -- as a supporter of legal gay marriage -- I'm finding myself uncomfortable with the idea, especially in this current environment.

I think my discomfort breaks-down to two reasons-

Democratic process- In the last round of elections in the US, four states (Maine, Maryland, Minnesota and Washington) held referendums that legalized gay marriage in those states. They effectively doubled the number of states that allow same sex couplings in their legal systems (some states call them Civil Unions). While the struggle has been long and hard, the progress over the past decade has been rather dramatic. There have been numerous ballot-box losses on this issue, but the tide is turning.

I can't help seeing this and and say that the democratic process is working as its supposed to. This issue has been debated in the media and by politicians for years now. After organizing and persuading, the supporters of gay marriage have reached a critical amount of momentum. In several states, people have had to sit in a voting booth (or legislators have had to sit on the issue) and really think about how they felt before pushing a button. In some cases, voters have voted against gay marriage. But those voters seem to be quickly losing ground.

This makes the use of the courts an uncomfortable venue to have a fight over this. Courts don't operate in a political vacuum, and pursuing a court resolution seems like something of a cop-out compared to pursuing more legislative victories by continuing the conversation. For those who remain "unconverted", a Supreme Court victory basically ends that conversation. Gay marriage ceases to become an issue that's been decided by popular majorities, and becomes yet another liberal agenda item imposed by the courts. In other words, this becomes an issue that is fought over, but not actually argued. And it simply vests even more power in the hands of judges over an issue that was previously making its way through the political process.

The proliferation of rights- It's hard not to sound somehow disparaging of the term "gay rights", because I do believe there are such a thing as gay rights. But I have a deep-seated discomfort with expansive definitions of constitutional rights within nation-states. Maybe this is a specifically American approach, but I prefer a system of "rights" that outlines what the government may not do to give civil society a chance to pursue its own path. I do not like a system where the government is forced to recognize an ever-expanding roster of "rights".

Over the past few years, I've heard an uncomfortable number of people argue for "rights" to nonsense things like "free Internet" and other idiocy. Gay marriage is far from a stupid thing. But I'm also not sure it rises to the level of a right -- and for the record, I don't think legal recognition of heterosexual marriage is a right either.

One could argue that the Supreme Court isn't possibly going to find a "right" to gay marriage, but rather it is going to rule that prohibiting certain marriages violates equal protection clauses in our constitution. Nonetheless, basically everyone is going to walk into/away from this case acting as if its about whether gays have a constitutional right to marry. I'm not sure that's a healthy approach for governance.

[Hazir]

Right, just as there is no 'gay marriage' there is no such thing as 'gay rights'. There is a right however of not being discriminated against in your constitutional system unless the state can prove that discrimination is absolutely necessary. That little fact makes that your appeal to solve this 'the democratic way' is simply and entirely wrong.

I have said this from the start of the proposition 8 debate; you don't put the right to be treated equally of people belonging to a minority up to a vote by the majority. That may taste of democracy, but it makes a mockery of the principles of the rule of law and equal protection of all thereunder .

So please, tell me, what is the necessary reason according to you to discriminate against gay people?

[Ominous Gamer]

Your democratic process argument sounds oddly like how people argued against the SCOTUS ruling against discrimination and separate but equal. Are you saying our country would be better off currently if the courts hadn't given the country the kick in the pants it needed to move forward as a society?

[Hazir]

Your democratic process argument sounds oddly like how people argued against the SCOTUS ruling against discrimination and separate but equal. Are you saying our country would be better off currently if the courts hadn't given the country the kick in the pants it needed to move forward as a society?

I agree entirely, the questions whether or not people should be treated equal has been answered at the time that your Constitution was ratified. The principle has been re-inforced by an amendment or two. There is no reason to say now that we have to wait for a majority to accept that equal treatment for a minority. What's the percentage of black people in the US? 13% or so? I don't think they'd have been able to vote themselves into equality just like that. And I doubt a majority to Whites would have bothered to vote for equality for blacks either.

[RandBlade]

To me the legality of this is quite simple: Either the state permits civil marriages or it does not.

As per the 14th amendment and Brown v Board of Education "separate but equal" is unconstitutional. If straight people are allowed to marry, gay people are too.

[GGT]

Historically, we've expanded civil rights instead of limiting them....so that All People are Equal under the law. Not just men, or white men, or voting land owners, but All People. Not separate but equal, or a second-class of citizens. It took a long time to include women, non-whites, eventually the disabled and LGBT.

I'm not sure how that translates into "proliferation" of rights, Dread.

When it comes to marriage, our history is full of racially discriminating laws. Hard to believe that Loving v Virginia was so recent (1967), and interracial couples could be arrested and sentenced to jail. Several southern states still had laws against interracial marriage as late as 2000.

Desegregating schools and public buildings was also considered something fairly "fast", and SCOTUS had to drag States into the 20th century, kicking and screaming, with Brown v Board of Education. There are people today who still think Brown, the Civil Rights Act, and Disability Act were over-reaches by the federal government. I think they're wrong.

"Equal Rights" are things that shouldn't be decided on state ballot initiatives, that only exclude certain groups. That includes marriage/civil unions, and legal contracts between couples (for spousal benefits). The Dept. of Defense has already decided that it's discriminatory to have different standards for homosexuals than heterosexuals in the military (DADT). DOMA is closely related.

It's pretty simple. People can't/don't choose their parents, gene pool, race, gender, ethnicity, disability, or sexual orientation.

[wiggin]

Just to inject a note of levity, when I saw the BBC headline "Gay unions to get Supreme Court slot" I first was confused because I had never heard of labor unions with only gay members. I didn't even get how that would work.

[Lewkowski]

To me the legality of this is quite simple: Either the state permits civil marriages or it does not.

As per the 14th amendment and Brown v Board of Education "separate but equal" is unconstitutional. If straight people are allowed to marry, gay people are too.

Using that argument polygamy would be cool too. (Which I don't necessarily have a problem with for the record).

[RandBlade]

You don't have any LGBT unions?

EDIT: To wiggin.

[RandBlade]

Using that argument polygamy would be cool too. (Which I don't necessarily have a problem with for the record).

It may happen one day. But for today, gays are people just as much as straights in the same way blacks are people just as much as whites.

The original constitution didn't treat blacks as people, SCOTUS ended that. The law in some states required segregation, SCOTUS ended that. The law in some states banned inter-racial marriages, SCOTUS ended that.

Just like blacks, gays are people too. If the SCOTUS can end the ban on inter-racial marriage should it not also by the same principle end the ban on gay marriage too?

[Hazir]

Using that argument polygamy would be cool too. (Which I don't necessarily have a problem with for the record).

Equal treatment can hardly be used against a blanket prohibition for ALL people on having more than one spouse.

[Wraith]

Just to inject a note of levity, when I saw the BBC headline "Gay unions to get Supreme Court slot" I first was confused because I had never heard of labor unions with only gay members. I didn't even get how that would work.

You don't have any LGBT unions?

EDIT: To wiggin.

Doesn't the steel industry have a union?

[coinich]

Are you trying to argue against the idea of protected groups or identities Dread?

[RandBlade]

http://blip.tv/todo-mundo/homer-and-...l-mill-4258030

[Aimless]

Using that argument polygamy would be cool too. (Which I don't necessarily have a problem with for the record).

The right in question is the right to have one spouse, a right that should be held by white people, black people, straight people, gay people, mormons, etc. The right you're talking about is the right to have multiple marriages recognised by law. One day that may be perfectly legal, and in that case gay people, white people, black people, straight people etc should all have the right to have their polygynous marriages recognised at that date. But right now that's not what's at stake. And then there'll be a movement to recognise polyandry as well

Compare "one person, one vote" vs "one person, several votes".

[Wraith]

So you're saying people have a right to marry whoever they want, but only if that person is unmarried? That if marriage is defined as between a man and a woman, it's unconstitutional, but if it's defined as between a person and an unmarried person, that's okay? Why does the 14th amendment only apply if you're unmarried?

[Hazir]

So you're saying people have a right to marry whoever they want, but only if that person is unmarried? That if marriage is defined as between a man and a woman, it's unconstitutional, but if it's defined as between a person and an unmarried person, that's okay? Why does the 14th amendment only apply if you're unmarried?

Good luck making your case before the Supreme Court, Mormons everywhere will be surprised that one of the conditions for Utah's statehood was unconstitutional.

[Wraith]

I think you're misreading what I wrote, or I'm misunderstanding what you're saying. I was not arguing that polygamy is unconstitutional. I'm pretty sure it's not.

[Hazir]

I think you're misreading what I wrote, or I'm misunderstanding what you're saying. I was not arguing that polygamy is unconstitutional. I'm pretty sure it's not.

The Supreme Court has ruled several times that a prohibition of polygamy was constitutional. In Utah it's forbidden in the state constitution, and for a long time there was a federal law prohibiting it, though that has been repealed.

[Wraith]

The Supreme Court has ruled several times that a prohibition of polygamy was constitutional. In Utah it's forbidden in the state constitution, and for a long time there was a federal law prohibiting it, though that has been repealed.

Which would imply that government rules on which pairs are eligible for marriage are constitutional, right?

There's a perfectly good full faith and credit clause here that could be used to strike down Prop 8. I don't think going the 14th amendment route is the correct one here.

[Hazir]

Not necessarily, because most of the rulings are based on tradition and christian morals, which don't rate very high any longer on the scale of justification for unequal treatment It's just that nobody has challenged it lately. I guess that's because polygamists very often are harassed through means of child protection statutes.

[Dreadnaught]

As Wraith has pointed out, there is precedent for the court to find that state governments are allowed to determine their own definition of marriage. There is also a separate clause of our constitution beyond "equal protection" where this could be litigated. Instead, this has fallen into a debate about court-mandated "rights", which I think is unhealthy for democracy and unhealthy for the gay rights movement.

People seem to not be thinking about what happens if the court rules that states are not constitutionally bound to recognize gay marriage. Am I to presume no one will rant and rail against nine unelected judges forcing their views on a population? Nonsense, people will be pissed. And it would be disastrous for the cause of legal gay marriage in the US.

I think it's a far more compelling victory to win this at the ballot box, which is what's started to happen. That's what democracy is all about. Democracy is not about getting court-imposed rights established as society's mores change. Because, like it or not, legally-recognized gay marriage is a relatively recent concept in Western civil society. I don't see any reason why moral and ethical persuasion can't run its course, and instead we have to throw this to courts to impose their views based on the narrow majority of a judicial panel. In general, I prefer minimizing the number of divisive social issues which are thrown to the courts. I'd rather stand up and be counted supporting actual legislation to legalize gay marriage.

[Lewkowski]

So you're saying people have a right to marry whoever they want, but only if that person is unmarried? That if marriage is defined as between a man and a woman, it's unconstitutional, but if it's defined as between a person and an unmarried person, that's okay? Why does the 14th amendment only apply if you're unmarried?

Wraith said it better.

[Ominous Gamer]

This is what Dread's interruption of the rule of courts brings to mind



as someone said here before, its like 3 wolves and a sheep deciding whats for dinner.

The opposition to gay marriage is literally dying. Why should those people suffer because a larger group wants to remain assbackwards till death?

[Hazir]

Again, at no point in your history have you left t up to the vote of the people to establish whether or not minorities had the right to equal treatment, I think that were I an American citizen I would see no reason why my equal treatment should be the subject of a vote of my fellow citizens. I would not want to get the right through their vote, I would not want it taken away through their vote.

Your 'democratic' avenue does nothing but create a dangerous precedent. And that is why I want to see proposition 8 struck down. Really, with sympathizers like you, gay Americans hardly need enemies.

[Dreadnaught]

Sure we did -- the 14th amendment itself was the result of a democratic process. And our Voting Rights Act was also the result of a democratic process.

But candidly, I don't think we can go too deep making historical comparisons to the US civil rights movement and the ability of gays to marry (or not marry) in certain US jurisdictions in 2012. I'm sure my saying this will rub you the wrong way, and I realize it's personally insulting to you. It's personally sort of insulting to me too. But in a democracy, sometimes process matters about as much as the end result.

[Hazir]

Which is why we should not create a precedent where the majority gets to vote on the equal treatment of the minority.

It also takes some gall to say the 14th amendment wasn't forced upon a huge portion of the population of the defeated Confederacy.

[Dreadnaught]

So, forcing values is now okay?

But seriously, I think the division is whether there is a substantial civil right. This just isn't slavery or the right to vote.

[Ominous Gamer]

So, forcing values is now okay?

Its always been ok theft, rape, ownership...these are all values that society forces citizens to understand and recognize; the list is endless..


gay marriage isn't slavery. its about being recognized on the same level as your neighbors. Its about being allowed to visit incapacitated loved ones in the hospital, about being able to share health coverage, about not having being gay used against you (adoption is a hot topic there).

[wiggin]

http://blip.tv/todo-mundo/homer-and-...l-mill-4258030

See, I did not get that reference. Simpsons kinda passed me by.