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The Kentucky Licence discussion II


Stubby

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Because that's the trade off for why you get any favourable consideration? You partner up and promise to look after each other, in return you get these things. For all your talk of wanting rational, your very question makes no sense.

I could marry my drinking buddy and maiintain a de facto relationship with the mother of my children. If it's benefitial financially then potentially a fair few people might look to do this. It's clear there can now be no law enacted to prevent 'fraudulent' marriages like this, as a fundamental right as defined by the USSC any such laws would be immediately struck down.

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The libertarian argument about why there should be no marriage tax breaks/the government should get out of marriage is at least intellectually respectable (though not uncounterable - Kay does a good job of summarising some counterarguments above). Politically it's a non-starter, since there's no prospect of currently-married couples volunteering to give up their benefits in sufficient numbers. But hey, if you really believe in it, go out and campaign for it. If, on the other hand, you're just waving that flag because you have no better anti-gay-marriage argument to hand... well, it's not really the right tool for that job.

 

As for familial marriage... if you genuinely believe in this, again, go out and campaign for it. You might find yourself pretty lonely, but that's your right. But again, if this is nothing but a pose adopted as an anti-gay-marriage position, well... that's pretty weak stuff.

 

As for people in platonic partnerships somehow feeling that to call their relationship a 'marriage' would be a deception - in what way? If it's sincerely intended to be a lifelong partner bond, well, that's a marriage. That kind of marriage has always happened. It continues to happen. I guarantee you that somewhere in the US today, someone will be entering into a marriage on this basis. What's the problem here, exactly?

 

ETA - the irony is that historically, gay people did enter into such marriages with members of the opposite sex, and for years, anti-gay-marriage advocates argued that gay people already had legal equality because they had the right to enter into exactly this type of marriage. Now, somehow, this type of marriage has become an argument [i]against[/i] gay marriage?

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...

 

Now I want to move on to the next question.  What about singles (gay, straight, or celibate) who do NOT want to form any kind of partnership.   Joe and his roommate Mike just want to be taxed individually.  Why should they be taxed at a less-favorable rate than those who form partnerships?  What is the rational basis for this?  And don't say it's because singles are by definition not married.  That's like saying that blacks should be taxed less favorably because they are by definition not white.

...

Because they won't have the burdens that come from being married. They won't be obliged to support each other financially and in care when things go badly for one of them. Which is a part of the type of partnership that is formalized in marriage.

 

eta: ah a Libertarian, that explains the blind spot for obligations a bit

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Because they won't have the burdens that come from being married. They won't be obliged to support each other financially and in care when things go badly for one of them. Which is a part of the type of partnership that is formalized in marriage.

 

eta: ah a Libertarian, that explains the blind spot for obligations a bit

The main obligation for married people, and why benefits and tax concessions were brought in, was rearing children. Now society has decided that procreation and rearing the next generation is not a fundamental aspect of marriage the argument in favor of retaining marriage benefits is much much weaker.

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The main obligation for married people, and why benefits and tax concessions were brought in, was rearing children. Now society has decided that procreation and rearing the next generation is not a fundamental aspect of marriage the argument in favor of retaining marriage benefits is much much weaker.

In what world is it impossible for same sex couples to rear children? In what world have we tested for fertility to decide whether people could enter marriage? In what world have we forbidden post-menopausal women to marry?

 

Or basically, fertility and rearing children is a red herring. And one that doesn't even survive superficial scrutiny.

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In what world is it impossible for same sex couples to rear children? In what world have we tested for fertility to decide whether people could enter marriage? In what world have we forbidden post-menopausal women to marry?

 

Or basically, fertility and rearing children is a red herring. And one that doesn't even survive superficial scrutiny.

Gay couples can't procreate with each other, unless they've evloved asexual reproduction when I wasn't looking. Marriage used to be the union of a man and woman for the express purpose of procreation and rearing their own biological offspring, benefits were historically extended to aid and compensate for that activity. Clearly we, as a society, have decided that marriage is no longer primarily for that purpose but instead an expression of individual rights, on that basis penalizing single people to the benefit of married couples is far harder to justify.

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But it is being suggested that we have no right to judge or criticize their actions if we do not like what they do.  Not even when their actions implicate First Amendment rights.  How is that consistent with the idea of democracy?

 

Who said we can't criticize the Supreme Court? I've been on this board 15 years and half of what we do is criticize the government!

 

Also, I notice you have subtly shifted your stance from "the Supreme Court is undemocratic" to "the Supreme Court should be criticized." As we say to Death, not today.

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Gay couples can't procreate with each other, unless they've evloved asexual reproduction when I wasn't looking.

 
You weren't looking?

http://time.com/3748019/same-sex-couples-biological-children/

Anyway, this is true (for now, if not for long) but utterly irrelevant. To the extent that marriage is beneficial to society because it allows for children to be created and reared - and this is not the sole or even really the major reason why society wants to reward marriage, by the way - society does not give a shit whether those children were adopted, related to only one party in the marriage, created in a test tube, or the genetic offspring of both parties. It's irrelevant, so long as those children survive and thrive and thus benefit society.
 
So that puts paid to that line of argument, I'm afraid.

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Gay couples can't procreate with each other, unless they've evloved asexual reproduction when I wasn't looking....

A couple have children, one of the two transitions, they stay together.  Of course there is also adoption, donors, and children from previous relationships.

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You weren't looking?

http://time.com/3748019/same-sex-couples-biological-children

Anyway, this is true (for now, if not for long) but utterly irrelevant. To the extent that marriage is beneficial to society because it allows for children to be created and reared - and this is not the sole or even really the major reason why society wants to reward marriage, by the way - society does not give a shit whether those children were adopted, related to only one party in the marriage, created in a test tube, or the genetic offspring of both parties. It's irrelevant, so long as those children survive and thrive and thus benefit society.
 
So that puts paid to that line of argument, I'm afraid.

You've offered two contracdictory assertions. First that marriage is not rewarded  by society bacause of it's importance in child rearing, second that gay married couples are just as good at rearing their often non biological offspring as conventional heterosexual couples, and so can be equally rewarded by society for child rearing when they get married. Um what?

 

Why should a single person care if a couple finds an expression of self worth and emotional support through a commitment to their sexual partner? Society, including non married singles, have agreed to support marriage precisely because of the importance of rearing the next generation in a stable environment, this is by far the most important thing we do as human beings after all. Do you really think the state was offering tax breaks and benefits because of feel goods?

 

So that puts paid to that line of argument I'm afraid.

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A couple have children, one of the two transitions, they stay together.  Of course there is also adoption, donors, and children from previous relationships.

It's not the point I'm making, but thanks for the info.

 

If marriage is no longer seen as primarily a vehicle to rear children then why should it be supported with tax breaks and benefits? It seems the general consensus is that marriage isn't for child rearing, so maybe you'd like to offer a justification as to why non married people should be discriminated against in this way?

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You've offered two contracdictory assertions. First that marriage is not rewarded  by society bacause of it's importance in child rearing, second that gay married couples are just as good at rearing their often non biological offspring as conventional heterosexual couples, and so can be equally rewarded by society for child rearing when they get married. Um what?

 
I said that child rearing is not the sole or main reason society rewards marriage. That is, it is a reason, just not the only or main one. I would say 'sorry if that wasn't clear', but honestly, it was pretty clear.

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She's not an employee of "the land" (i.e., the U.S.A.).  She is an employee of Kentucky.  But her job functions as defined by Kentucky are not as you say.  It is "her job" to issue marriage licenses to gays only because Federal Courts told her to.  Which makes you and I and the Catholic priest and the Jewish Rabbi and anyone under the sun potentially in the same position.  If Justice Kennedy or Judge Bunning tells Father Michael or Rabbi Moshe to issue a marriage certificate to gays, then it is now their job to do so, because the Supreme Law of the Land just changed, and told them what to do.

 

 

Kentucky is part of the USA, and, as a state, subject to rulings of the federal government.

 

She's not a priest or a rabbi, or you and I - she is an employee of the state, which unless there's been a secession I wasn't aware of, is subject to federal laws. Those laws change, or the local ones change (whichever is most relevant) and her job changes.

 

I have as much sympathy for her "being told what to do" as I do for anyone. Which is to say - none whatsoever. Everyone who is employed by another, and particularly by large organizations like big corporations or governments, gets "told what to do" by various people. Davis has what I would call First World Problems here and the right wing needs to stop making martyrs out of molehills.

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I'm not seeing how any of this contradicts what I said.  Yes, Davis is an elected official.  Elected officials, like Rabbis and Priests, are normally thought to have freedom of speech and conscience.  This need not protect them from getting in trouble with their employers (such as the State of Kentucky, or the Catholic Church, etc), but it in theory it should protect them from bullying from the Federal government.

 

But theory is not fact.  If Federal Courts tell an elected State official to do something it was not formerly her job to do, she now must do it or face the consequences of defying a "supreme" government authority.  The same thing applies if the highest courts give orders to marry gays to Priests and Rabbis and Minsters, who are authorized, pursuant to the laws of the State of Kentucky, to perform marriage ceremonies.  Or even if they are not authorized pursuant to the laws of Kentucky.  The Supreme Court can do anything the fuck it wants if nothing it does can be questioned, which is the attitude I am getting from the lot of you.

 

The attitude I am getting is that the Supreme Court is the SUPREME POWER and therefore we must approve of what it does.

 

 

No.

 

Government officials are barred by the establishment clause of the First Amendment to exercise some of their freedoms [i]while they are acting in the capacity of representing the government.[/i] This is why we do not allow public school teachers to lead prayers while at school, but they can do so in their Church.

 

In Davis' case, when she issues a marriage certificate, she's acting as a representative of the State government of Kentucky. Therefore, some of her freedoms may indeed to restricted to avoid violating the establishment clause.

 

In comparison, Rabbis and Priests have no such restrictions, and there are no formal legal rules that allow the SCOTUS to compel a religious representative to go against his/her convictions. For example, even though anti-miscegenation is illegal, individual religious leaders can continue to refuse to marry different-race couples, and not be in trouble with the law. Further, even though the government cannot deny marriage licenses to couples of discordant religious faiths, individual Churches can continue to refuse to perform marriage rites for couples who are of different faiths.

 

Your analogy is utterly flawed.

 

But yes, the SCOTUS is the supreme arbiter of what's Constitutional. IT SAYS SO IN ITS NAME. There are plenty of times where the court ruled incorrectly, such as Dread Scott, or Plessy v Ferguson. When the ruling is wrong, eventually, other cases rise up to challenge it and the Court reverses the rulings or mitigates the impact. That's in regards to the interpretation and execution of our laws.

 

On an individual level, they are free to disagree with any and all SCOTUS rulings. A person may very well disagree with Brown v. Board of Education, and they have the freedom to do so. But what they can no longer do is to act out that belief so that it goes against the law. So you can have a school Superintendant who thinks that racially integrating public schools is wrong, on a personal level, but s/he may not enact policies to reflect that belief because that, then, would be against the law.

 

This alleged barbarism of the SCOTUS forcing people to believe in things they find abhorrent is a product of your fervently inaccurate imagination.

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Government officials are barred by the establishment clause of the First Amendment to exercise some of their freedoms while they are acting in the capacity of representing the government. This is why we do not allow public school teachers to lead prayers while at school, but they can do so in their Church.

 

In Davis' case, when she issues a marriage certificate, she's acting as a representative of the State government of Kentucky. Therefore, some of her freedoms may indeed to restricted to avoid violating the establishment clause.

 

In comparison, Rabbis and Priests have no such restrictions, and there are no formal legal rules that allow the SCOTUS to compel a religious representative to go against his/her convictions. For example, even though anti-miscegenation is illegal, individual religious leaders can continue to refuse to marry different-race couples, and not be in trouble with the law. Further, even though the government cannot deny marriage licenses to couples of discordant religious faiths, individual Churches can continue to refuse to perform marriage rites for couples who are of different faiths.

 

I never claimed the First Amendment was an absolute that cannot be abridged in any circumstances.  However, the Establishment Clause cannot not implicated here, without extreme twisting of the principles and precedent behind it.  This has not yet been done, not even by Judge Bunning or Justice Kennedy.   None of the actions taken by Federal Courts against the States or against Ms Davis were done in the name of the Establishment Clause, as far as I know. The OBERGEFELL decision, which held Kentucky's marriage scheme unconstitutional, never even mentioned the Establishment Clause.

 

For instance, a senator's or a president's opposition to slavery does not become an unconstitutional violation of the establishment clause merely because he opposes slavery on religious grounds (he might for instance, believe that "that all men are created equal, that they are endowed by their Creator with certain inalienable Rights"; which sounds like it might contain a religious idea or two).  The same applies to opposing gay marriage.  Your theory implies that if Ms Davis were an atheist lexicographer, constitutional scholar and evolutionary biologist (turned County Clerk) who defied Judge Bunning's order merely because she thought that Justice Kennedy's attempt to redefine "marriage" on a national level was an unconstitutional interference with the Free Speech rights of the States and of her own Free Speech rights as elected County official, and a violation of Federalist principles; and because her studies as an evolutionary biologist have convinced her that traditional marriage is indeed more important to the community and the nation than same-sex partnerships for important biological reasons and should not get the exact same privileges, then she might have a good case for her defiance and for her complaint that her First Amendment rights are being violated, even though her actions are exactly the same.  

 

Such prejudicial treatment of persons of religious background should not be tolerated.  The Establishment Clause does not forbid State Officials from expressing their views or honestly stating the reasons for them.  If the First Amendment allows atheists to oppose equal status for same-sex partnerships, and nationwide court-mandated semantic changes, it should permit Christians to do so as well.

 

You mention public education.  Admittedly, the Establishment Clause is often cited in this context.  However, the problem with state-funded and/or compulsory public education perhaps has less to do with the Establishment Clause, than with the fundamental right of citizens to decide how their own children should be educated, without undue interference from the Government.  This tension is resolved by various compromises wherein public school teachers are restricted to teaching children the sort of things that most parents can agree on; where parents are permitted the right to withdraw their children from certain electives they find objectionable; and even withdraw their children from public school entirely in some cases, and where, in order to make the exercise of this right not unduly burdensome, parents are even allowed get some level of public funding for the private school of their choice, even if it is religious.

 

It is common for anti-religious extremists to advocate using the Establishment Clause as a sword to support their own philosophy, and effectively ban religious convictions (and the people who have them) from participation in the public arena.  But if such people get their way, it will be a defeat for liberty, not a victory.

 

Ms Davis has not, by any sane standard, attempted to impose her beliefs on anyone.  She has merely refused to issue, under her own authority, documents she does not agree with. If anything, it is Judge Bunning who is attempting to impose Justice Kennedy's beliefs on Ms Davis, and also on the entire State of Kentucky  He gets away with it because Justice Kennedy's beliefs are popular right now.  However, the Constitution is being done a disservice.

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Ms Davis has not, by any sane standard, attempted to oppose her beliefs on anyone.  She has merely refused to issue, under her own authority, documents she does not agree with. If anything, it is Judge Bunning who is attempting to impose Justice Kennedy's beliefs on Ms Davis, and also on the entire State of Kentucky  He gets away with it because Justice Kennedy's beliefs are popular right now.  However, the Constitution is being done a disservice.

 

Uhh...Anthony Kennedy's beliefs are, by virtue of him being a Supreme Court justice, the law of the land. He does not "get away with it" because he happens to be on the right side of public opinion but because the Court has the legal authority to do exactly as it has done. You're acting like there's some higher standard of constitutionality than SCOTUS, and if you believe that you're wrong. What's constitutional is what the Court says is constitutional, like it or not. So Kennedy is "forcing" on David and the Commonwealth of Kentucky not his beliefs but the US Constitution. You know, the one that Kentucky ratified.

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But yes, the SCOTUS is the supreme arbiter of what's Constitutional. IT SAYS SO IN ITS NAME. There are plenty of times where the court ruled incorrectly, such as Dread Scott, or Plessy v Ferguson. When the ruling is wrong, eventually, other cases rise up to challenge it and the Court reverses the rulings or mitigates the impact. That's in regards to the interpretation and execution of our laws.

 

 

This seems like history as a morality tale, where the court eventually gets everything right. While I agree that it has done more good than harm, there's no guarantee that "wrong" rulings (whatever that means) will ever get overturned

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