Wow.. Now I can Marry Him

[Lord Mord]

I could be wrong, but on the explicit face of it, I don't see where Tempra is actually saying that the state bans justify anything. He said (paraphrased), "Kennedy won't overturn the Proposition; Kennedy's reasoning will have to do with the overwhelming public support of such a ban."

In response, he was told that a lot of people support gay marriage.

His response was that a majority of states are still against it.

The only obvious inference is that Tempra is saying Kennedy won't overturn the ban on the basis that most states have bans on gay marriage. There is nothing explicit there about what Tempra wants or even cares about -- only his observation about what someone else will do and why he thinks he will.

[Tempra]

So now "will of the people" doesn´t matter anymore and the goalposts have been shifted to what a portion of the people on some areas have voted for in their ignorance and/or hatred?

Besides even 60% is still nowhere near interracial marriage territory.

The goalposts have been shifted? what?

No, I use that statistic, not because it is convenient, but because it is the most logical statistic to look at. The courts are determining whether California's law defining marriage as one man and one woman is Constitutional. The Court will, of course, look at what other states are doing. For examples of this, look at Lawrence and Bowers.

Whether the level of anti-gay marriage support reaches the same level of anti-miscegenation support is irrelevant. Anti-miscegenation laws were clearly unconstitutional under the 14th amendment. Gay marriage prohibitions are not clearly unconstitutional under the 14th amendment.

edit: fixing some prefixes

[Tempra]

I could be wrong, but on the explicit face of it, I don't see where Tempra is actually saying that the state bans justify anything. He said (paraphrased), "Kennedy won't overturn the Proposition; Kennedy's reasoning will have to do with the overwhelming public support of such a ban."

In response, he was told that a lot of people support gay marriage.

His response was that a majority of states are still against it.

The only obvious inference is that Tempra is saying Kennedy won't overturn the ban on the basis that most states have bans on gay marriage. There is nothing explicit there about what Tempra wants or even cares about -- only his observation about what someone else will do and why he thinks he will.

This is exactly it. I have not defended gay marriage bans because I think gay marriage should be permitted. I have only stated what I think the outcome of this case will be on appeal. Yet, this has not stopped a few political hacks from attacking me personally.

[Andriy Czarchenko]

This is exactly it. I have not defended gay marriage bans because I think gay marriage should be permitted. I have only stated what I think the outcome of this case will be on appeal. Yet, this has not stopped a few political hacks from attacking me personally.

Who´s appealing the case anyway? The state of California isn´t appealing (quite the opposite) and the other side won. Why should anyone else have a say in the matter?

[Ser Reptitious]

Tempra,

This is exactly it. I have not defended gay marriage bans because I think gay marriage should be permitted. I have only stated what I think the outcome of this case will be on appeal. Yet, this has not stopped a few political hacks from attacking me personally.

Considering how vigorously you've been making the legal case against gay marriage you can hardly be surprised if people are a bit suspicious of your claim to support gay marriage.

[Tempra]

Ahhh. States' rights as a cover for bigotry again.

You keep retreating to that one statistic because you know that the public is not as overwhelmingly against gay marriage as it was against mixed-race marriage when mixed-race marriages were made legal. Every once in a while you fess up that it's hard to quantify just where the public opinion divide is, but as soon as you run out of rhetorical ammo again you retreat to the states figure.

No, I have said that both sides will marshal the facts to make their case that the majority of america is for or against gay-marriage. I personally think the fact that 60% of states explicitly bar gay marriage (another 30% not permitting gay marriage to be performed in the state) is more indicative of the level of support in America for gay marriage than random polls showing support for gay marriage ranging from 45-55% of America. That is my opinion. You can judge which you think is more indicative of the level of support for gay marriage in America.

[Tempra]

Who´s appealing the case anyway? The state of California isn´t appealing (quite the opposite) and the other side won. Why should anyone else have a say in the matter?

When the State of California decided not to defend the law, the court allowed Dennis Hollingsworth and the Campaign for California Families to step in as defendant-intervenors. I assume they have standing as voters in support of Prop 8, but I am not certain how they satisfy the standing requirement.

edit: here is an article on whether the defendant-intervenors have standing to appeal the decision. That'd be a funny conclusion to the case if the decision could not be appealed.

http://newyorklawschool.typepad.com/leonardlink/2010/08/can-the-proponents-of-proposition-8-appeal-judge-walkers-ruling-1.html

[DanteGabriel]

No, I have said that both sides will marshal the facts to make their case that the majority of america is for or against gay-marriage. I personally think the fact that 60% of states explicitly bar gay marriage (another 30% not permitting gay marriage to be performed in the state) is more indicative of the level of support in America for gay marriage than random polls showing support for gay marriage ranging from 45-55% of America. That is my opinion. You can judge which you think is more indicative of the level of support for gay marriage in America.

I'd think that the sharp contrast between actual polled support for gay marriage and the large number of states with laws on the books banning it says more about the organization and activism of the anti-gay-marriage crowd (and their desire to turn it into a wedge issue at election time) than it does about the nation's attitude on gay marriage as a whole.

If 55% of the citizens of every state oppose gay marriage, that may well be enough to get it banned in every state, but that still doesn't indicate that the nation is "overwhelmingly" against gay marriage.

How many states had laws explicitly against gay marriage in 2000? Fewer than there are now, I'd imagine. Has public support for gay marriage taken a sharp nosedive since then, or is it just possible that the rash of states adopting bans has more to do with the political activism of the moment and not so much to do with the nation's stance on gay marriage as a whole?

[Tempra]

I'd think that the sharp contrast between actual polled support for gay marriage and the large number of states with laws on the books banning it says more about the organization and activism of the anti-gay-marriage crowd (and their desire to turn it into a wedge issue at election time) than it does about the nation's attitude on gay marriage as a whole.

If 55% of the citizens of every state oppose gay marriage, that may well be enough to get it banned in every state, but that still doesn't indicate that the nation is "overwhelmingly" against gay marriage.

One could also argue that the relatively high support for gay marriage (45-55%) in the polls may be inflated because people do not want to openly admit that they are bigoted. Instead, they either vote against gay marriage in anonymous referendums or elect anti-gay marriage legislators to do their dirty work.

As I said, every measurement has its limitations and is susceptible to criticism.

How many states had laws explicitly against gay marriage in 2000? Fewer than there are now, I'd imagine. Has public support for gay marriage taken a sharp nosedive since then, or is it just possible that the rash of states adopting bans has more to do with the political activism of the moment and not so much to do with the nation's stance on gay marriage as a whole?

I believe 2 states had explicit bans prior to 2000. I have no doubt that political activism is the reason why so many states have gay marriage bans on the books now. But why is that? Starting in about 1992, there has been a push to recognize same-sex marriages Before that time, there was never a need for an explicit prohibition. Gay marriage was just not accepted throughout American history.

[DanteGabriel]

So we shouldn't listen to opinion polls to get an accurate gauge of support for gay marriage, because people may not want to seem bigoted when asked an anonymous question by a random stsranger.

But even though political activism accounts for the amount of laws against gay marriage, that's still a useful indicator of support for banning gay marriage.

Nope, no cherry-picking of facts here...

[TrackerNeil]

Whether the level of anti-gay marriage support reaches the same level of anti-miscegenation support is irrelevant. Anti-miscegenation laws were clearly unconstitutional under the 14th amendment. Gay marriage prohibitions are not clearly unconstitutional under the 14th amendment.

You're always so certain, aren't you, as to what is constitutional and what isn't? Funny how something so damned clear is so frequently debated by people with more legal knowledge than you or I. They'll be relieved to learn, I am certain, that you've sussed it all out.

[Tempra]

So we shouldn't listen to opinion polls to get an accurate gauge of support for gay marriage, because people may not want to seem bigoted when asked an anonymous question by a random stsranger.

But even though political activism accounts for the amount of laws against gay marriage, that's still a useful indicator of support for banning gay marriage.

Nope, no cherry-picking of facts here...

You selectively read my posts, don't you? I've conceded that "EVERY measurement has its limitation and is susceptible to criticism." That includes using the number of states with explicit prohibitions as an indicator of public support for gay marriage.

[Tempra]

You're always so certain, aren't you, as to what is constitutional and what isn't? Funny how something so damned clear is so frequently debated by people with more legal knowledge than you or I. They'll be relieved to learn, I am certain, that you've sussed it all out.

In certain situations. With gay marriage, I think it is debatable, as I have said ("not clearly unconstitutional"). With the anti-miscegenation laws, they clearly and undeniably were contrary to the very purpose and intent of the 14th amendment, which was enacted to end racial discrimination.

[TrackerNeil]

In certain situations. With gay marriage, I think it is debatable, as I have said ("not clearly unconstitutional"). With the anti-miscegenation laws, they clearly and undeniably were contrary to the very purpose and intent of the 14th amendment, which was enacted to end racial discrimination.

That's odd. The 14th Amendment was enacted in 1868, yet the Supreme Court decision in Loving vs. Virginia didn't come down until 1966-67 or so. For nearly one century, what you consider to be "clearly and undeniably" unconstitutional was the law of the land. How can that be?

[Tempra]

That's odd. The 14th Amendment was enacted in 1868, yet the Supreme Court decision in Loving vs. Virginia didn't come down until 1966-67 or so. For nearly one century, what you consider to be "clearly and undeniably" constitutional was the law of the land. How can that be?

I do not have the time or the inclination to reiterate the strong racial prejudices that have infected the people of this country over the past several hundred years.

As the New York Court of Appeals stated about using Loving as precedent for same-sex marriage:

"[T]he historical background of Loving is different from the history underlying this case. [...] But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude."

This is the great hurdle that same-sex marriage faces.

[TrackerNeil]

As the New York Court of Appeals stated about using Loving as precedent for same-sex marriage:

"[T]he historical background of Loving is different from the history underlying this case. [...] But the traditional definition of marriage is not merely a by-product of historical injustice. Its history is of a different kind. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude."

This is the great hurdle that same-sex marriage faces.

The court speaks eloquently, but this is a social observation, and not a legal one. Stephanie Coontz would certainly disagree that marriage has not changed over the centuries. It seems marriage has always been between members of the opposite sex, but it can reasonably be argued that such is a result of heterosexism (read: bigotry) and not to the basic nature of marriage. Therefore, the barrier to same sex marriage is not tradition but bigotry.

Also, you never really answered my question. If miscegenation laws were so clearly unconstitutional, why did it take the Court 100 years to say so?

[DanteGabriel]

You selectively read my posts, don't you? I've conceded that "EVERY measurement has its limitation and is susceptible to criticism." That includes using the number of states with explicit prohibitions as an indicator of public support for gay marriage.

You've conceded the faults in your approach but still say that public opinion is "overwhelmingly" against gay marriage. That's all I'm trying to point out -- you state with certainty how against gay marriage the public is, but then can't conclusively prove that the public is overwhelmingly against gay marriage, and then repeat that "60% of states" figure like a fucking parrot.

[Tempra]

The court speaks eloquently, but this is a social observation, and not a legal one. Stephanie Coontz would certainly disagree that marriage has not changed over the centuries. It seems marriage has always been between members of the opposite sex, but it can reasonably be argued that such is a result of heterosexism (read: bigotry) and not to the basic nature of marriage. Therefore, the barrier to same sex marriage is not tradition but bigotry.

I am unfamiliar with her work, but speaking from my own opinion, I find it hard to believe that heterosexism is the reason that marriage has been near universally established as a union between between and woman. I would agree that heterosexism is a motivating factor behind movements trying to deny same-sex marriage today in America.

Also, you never really answered my question. If miscegenation laws were so clearly unconstitutional, why did it take the Court 100 years to say so?

I did, albeit incompletely. Our government (federal courts in particular) move at a glacial pace. It is not uncommon for SCOTUS to let an issue sit for 10-30 years before finally addressing the issue. Combine that with deeply ingrained racism and prior erroneous rulings, it is not surpising that it would take 100 years to correct itself.

I don't see where you're going with this. If you reject that anti-miscegenation laws were clearly unconstitutional, it makes the argument for gay marriage that much murkier, which is my opinion.

[mormont]

I am unfamiliar with her work, but speaking from my own opinion, I find it hard to believe that heterosexism is the reason that marriage has been near universally established as a union between between and woman.

Then what, in your opinion, is the reason? Certainly I've never heard any clear articulation of why this is so that can't be described as 'heterosexism'. And more importantly, do you claim that these reasons (whatever they may be) still pertain in modern Western society?

The argument about anti-miscegenation laws relates closely to this latter point. Anti-miscegenation laws were clearly unconstitutional - but despite that, society was not ready to admit that they were for a very long time, because of prejudice. The same applies to anti-gay marriage laws.

[Tempra]

Then what, in your opinion, is the reason? Certainly I've never heard any clear articulation of why this is so that can't be described as 'heterosexism'. And more importantly, do you claim that these reasons (whatever they may be) still pertain in modern Western society?

The argument about anti-miscegenation laws relates closely to this latter point. Anti-miscegenation laws were clearly unconstitutional - but despite that, society was not ready to admit that they were for a very long time, because of prejudice. The same applies to anti-gay marriage laws.

I believe that maintaining the definition of marriage as a union between one man and one woman is the result of heterosexism. I don't think there are any sensible reasons to deny homosexual couples the right to marry. With regards to why marriage was originally established, I believe marriage was created out of necessity to encourage procreation, social stability, and to facilitate the distribution of assets. ETA: To directly answer your question, no, I do not think these reasons still pertain in modern western society.