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And here we see lograh pissing off just about everyone who reads his lj. // politics - Lograh — LiveJournal

Wednesday, 25.Feb.2004

20:05 - And here we see lograh pissing off just about everyone who reads his lj. // politics

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damn, where to start? I was thinking of doing something along the lines of taking the various ravings in favor of gay marriage and attacking them point by point, but I simply don't have the time for that. So, I'll just post here some thoughts on the topic and let you match them up with what aspect of this issue they go to.

First off, let's get one thing straight: A common misconception I've seen going around here is that most people just don't seem to understand what "marriage" even is! Hard to believe, no? Well, it's true. We've got the anti-gay-marriage freaks proclaiming "it's a sin!" and using that as their argument. Then there are the pro-gay-marriage freaks (I'm an equal opportunity insulter, yer all freaks) raving on about "unfair discrimination".
You're both right and you're both wrong.
The confusion is stemming from the fact that there are two *very* different concepts that have the same name and are often used interchangeably. There's the marriage of the church, which is an entirely religious affair and the government has neither the power nor the inclination to make any claims about. If some religion wants to start performing marriages between people who are not even alive, that is their right to do so. No one is saying those marriages have to be acknowledged by anyone outside that religion. If you disagree with your religion not allowing gay marriage, then I suggest you find a new religion. In addition to the marriage of the church, there is also the marriage of the state. This is the legal document saying that two people are allowed to speak for one another in some legal situations and they are allowed to file a joint tax return, and other practical goodies. The church has no power to force the government to restrict marriages in any way (don't confuse this with the current situation, they are different). If the government wants to define its idea of marriage in some way that a particular religion finds offensive, then that religion just needs to learn to deal with it. The only place the two types of marriages coincide is that you can have the signing official of your marriage license be a religious official.

So, that said, I think we can see that all the fuss on this entire issue is nothing more than a big misunderstanding. The anti-gay-marriage people feel that these gay marriages are of the church type (possible, but not likely the same church) while the pro-gay-marriage people are only concerned with the state type.

I've said it before (don't think I've posted it here though) and I'll say it again, if I was in charge I'd ban all legal marriages. Civil Union would be all you get, end of story. That way there'd be none of this confusion and everyone could get back to living. But I'm getting ahead of myself.

People are saying gay marriage will ruin the "sanctity of marriage". I think we've seen enough arguments against that one to last us a lifetime, so I'll just say I think it's an absurd claim (and I'm prepared to provide reasons for this if anyone actually *hasn't* seem them allready).
People are saying marriage is a right and it's unfair to restrict it. This simply demonstrates the pure idiocy of the person making that claim. The closest I can think of is the right to "pursuit of happiness". We need only look at a psychopath to see that the government is fully within its power to restrict the types of happiness we are allowed to legally pursue. The psychopath is very happy with killing people, yet that is not legal. Thus we have the government restricting a type of happiness and everyone seems to think it's okay. Got issues with my example because the psychopath is hurting other people where gay marriage doesn't? Look at suicide. I've personally met many people who view it as the only possible option for their happiness and thus they wish to pursue it, but the government will not allow this. Get it through your heads, marriage is not a right.
People are saying that not allowing gay marriage is discrimination. True. So is not allowing people to vote till they've reached 18. So is not allowing someone to drink till 21. These are all legal forms of discrimination. Got a problem with my example because those are only at the state-level while this gay marriage thing is being threatened at the federal level? Fair enough, I can't come up with a similar federal example off the top of my head, I'll get back to ya with one, though (I know there are some, just can't think of them right now).
People are saying gay marriage is a sin. Well, I can't argue that, but I can point out that so is heavy drinking, and smoking, and lust, and jealousy, and greed, and gluttony, and . . . You get my point? Our government allows many sins to be committed in fully legal fashion, why should it being a sin stop gay marriage from being legal? We're not saying everyone *must* get involved in a gay marriage, just like we're not saying everyone *must* start drinking simply because it is legal.
People are saying that "civil unions" are nothing more than a modern version of "separate but equal". That argument doesn't hold. For one, they are not equal legal situations, but even if they were, it wouldn't be that type of a situation. The "separate but equal" ruling was about physical institutions. The facilities were physical constructs and there was a quantifiable way to measure the equality and it was found to be impossible to make them truly equal. If nothing else, there's the distance factor involved and it would be more difficult for someone to get at one of the items in question. Marriage is not a physical thing. If a "civil union" were created that truly was the equal to marriage in legal terms (death rights, tax rights, equity sharing, the works) then the only difference would be in the name. They would be equally easy to achieve, they would be equally recognized across state lines, they would be equal in every way but name. Some people have said that the name alone would be enough to be cause for discrimination. I've got news for you: when the rednecks find out you are married to someone of the same sex, they will lynch you just as quickly as if you said you were in a civil union. Hell, they might even torture you first, for "defiling the sanctity of marriage" (in their eyes). You ask why the name "marriage" is so important that it be reserved for opposite-sex couples, I ask why it's so important that it be open to same-sex couples. It's just a name, but I've long since given up that argument and I'll not repeat it here (my views on the PC movement being beyond the scope of this entry).

The statement of "minority rights" makes for a wonderful pipe dream, but nowhere is it written in the constitution of the US that every person shall be allowed to perform the exact same acts or enter the exact same legal contracts (least, I didn't see it last I checked -- if someone can correct me please do). Further, as I said above, marriage is not a right so the argument of "minority rights" does not even apply to marriage.

My personal views? ban legal marriage. civil unions for all. straight, gay, 2 or more people, green homosexual martian dogs with purple terran dinosaurs? sure! If the beings involved can prove sentience and are willingly entering the contract, let them!
but then, I've come to understand I think a little differently from most. I welcome anyone to argue any of my points (in fact, I encourage it), but please do so in a reasonable manner. If you feel I've missed something, lemme know and I'll happily address it.

Comments:

From:hariseldon
Date:20:45 25.Feb.2004 (UTC)
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** "Got a problem with my example because those are only at the state-level while this gay marriage thing is being threatened at the federal level? Fair enough, I can't come up with a similar federal example off the top of my head, I'll get back to ya with one, though (I know there are some, just can't think of them right now)." **

How about 'you arent allowed to join the army until you are of a certain age. Hell, age discrimination is ONE of the biggest in this country but you dont see people complaining about lack of rights, blah blah, so much as this gay marriage thing. I agree with you on the point of eliminating marriage as a legal term. Marriage should remain a religious term, and only have civil unions, that way civil unions become the legal classification and do not hinder nor interfere with the marriages of the various churches.

** "The statement of "minority rights" makes for a wonderful pipe dream, but nowhere is it written in the constitution of the US that every person shall be allowed to perform the exact same acts or enter the exact same legal contracts (least, I didn't see it last I checked -- if someone can correct me please do). Further, as I said above, marriage is not a right so the argument of "minority rights" does not even apply to marriage." **

I agree with you here to a point. Everyone is entitled to the same legal rights and priveleges as stated under the declaration of independence, albeit not a legal document, but the spiritual predecessor to the constitution and its legal terms. You are correct in asserting that legal marriage is not a right, although religious marriage is. However, once a freedom is established for one, it can not be discriminated against based on sex or race, and while Im not sure this is a law on the books, I believe it is an accepted truth just the same. So therefore, if they provide for marriage as a legal term for one, they must provide it for all without discrimination to sex, race, religion, etc. I believe forcing a man to marry only a woman is sexual discrimination. It restricts the rights of a person to pursue their legal freedoms based solely on their gender. So in your final statement, I agree with you. Eliminate the term of marriage as a legal state, and refine it to civil union open to all without regard to gender, age, religion, etc. I personally think people are a little stuck up about terms and definitions of things, and lose sight quickly of the importance and meaning of things. But I must tell you that most people will think you are wacky for telling them they dont have a right to everything. But then, those people watch a bit too much Springer and soap operas, and think that Judge Judy is a supreme lawgiver in this land. ;-) Wait, I watch Judge Judy and Springer ...

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From:lograh
Date:21:14 25.Feb.2004 (UTC)
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How about 'you arent allowed to join the army until you are of a certain age.
Perfect, thanks. I knew there had to be at least one. I imagine there are likely a few others as well.

legal marriage is not a right, although religious marriage is
religious marriage is a right only insofar as you are legally allowed to perform rituals of your religion provided they do not break certain other laws (like murder, for example). Any rituals you may perform, however, are strictly religious and have no legal binding.

once a freedom is established for one, it can not be discriminated against based on sex or race
true, but let's be careful here. lack of ability to discriminate based on sex or race does not mean a lack of ability to discriminate based on other qualifications. You can't be president if you were not a natural-born US citizen, for example. Doesn't matter how long you've been naturalized, doesn't matter how early in life you became a citizen. You could be made a citizen after only being alive one day, so all you ever knew was being a US citizen, and you still wouldn't be allowed to be president. That's a discrimination not based on sex or race, but it's perfectly legal. Also, there's that age discrimination. It's not based on sex or race, but it's still perfectly legal.

I believe forcing a man to marry only a woman is sexual discrimination
You're entitled to your beliefs, but can you back them up? I do not see this the same. Forcing a man to register for selective service (the draft) but not forcing a woman to do same is discrimination based on sex (a long-standing issue I don't see ever being fixed). I don't see restricting a person's marriage options to only unions with someone of differing sex as being discrimination based on sex. It's a law that involves sex, but it applies to everyone equally. Women will be restricted by this law just as much as men. Every person of every ethnic background will be restricted by this equally. This proposed law will not descriminate who it affects, and that's the key. No laws passed at the federal level may descriminate who they apply to based on sex or race.
It's a fine line, but it's an important one to make note of. The anti-discrimination facet of federal laws has to do with who they apply to, not what they require of us.

Of course, I'm not a lawyer and I could be entirely mis-interpreting this, but that's a risk I'm willing to take. This is how I see it and how I've been led to belive is the case. If anyone knows otherwise, please correct me.
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From:hariseldon
Date:23:28 25.Feb.2004 (UTC)
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And of course, I dont see our opinions, tho slightly differing, as mutually exclusive. I agree with you on most points, with albeit sublte differences of opinion. I suppose the problem with this whole argument is that many people confuse what is 'right' and what is 'legal'. Is it right to allow two people of the same gender to marry, perhaps, perhaps not, should it be legal? Personally, Ive always been one to feel that any laws that restrict personal expression are bad laws, but that is just my opinion. However, I think we both agree that it would be better for all parties to segregate marriage and legal unions into two separately defined categories (legal, bindingm secular union & non-secular, religious union) Honestly, I think, isnt a marriage, in the legal term, more or less a contract of partnership? It should be treated same as business contracts in terms of legal interpretation. Is it legal for two homosexual people to enter into a business contract together? Yes, so I think it should be legal for them to enter into a personal contract such as a civil union, legally, as well.
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From:lograh
Date:5:58 26.Feb.2004 (UTC)
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oh, I'm sure our opinions are not mutually exclusive.

As regards the difference between what is "right" and what is "legal": oh hell yes, I see a huge difference. I opted not to bring up that topic because most people I know are of the opinion that laws should reflect what is "right", while I strongly disagree with that concept.

I think there are many times that laws which restrict personal expression are great laws. Let's consider the psychopath who considers it a matter of personal expression that he strips the skin off other people while they are still alive and then runs around with it draped over his body. Personal expression? yes. should it be legal? hell no (at lest, not in my opinion).

Marriage is slightly more than just a contract of partnership. And that's where the trouble comes in. A couple that is married has certain legal priviliges that other partnerships (like a business partnership, for example) do not have. If one spouse is incapacitated, the other spouse has the right to speak for him/her in matters of "should the life support be continued". Spouses are allowed to file joint tax returns. Spouses are often granted extended coverage for health care. The list goes on and on. Marriage as a legal contract offers more than other contracts of partnership.
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From:serenica69
Date:22:41 25.Feb.2004 (UTC)
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I love it when you post non-geek stuff I can understand.
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From:capitano
Date:23:37 25.Feb.2004 (UTC)
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The statement of "minority rights" makes for a wonderful pipe dream, but nowhere is it written in the constitution of the US that every person shall be allowed to perform the exact same acts or enter the exact same legal contracts (least, I didn't see it last I checked -- if someone can correct me please do).

U.S. Constitution, Amendment XIV, Section One:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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From:lograh
Date:5:39 26.Feb.2004 (UTC)
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thank you for the quote. That part must not have registered the first time I read it.

the first section you bolded, . . . shall abridge . . . , seems to mean, to my eyes, that if the federal government gives it's citizens a right, the states must allow it as well. This is a natural extension of the supremacy clause.

The second part you bolded, nor deny . . . , seems to mean that every citizen shall get equal protection, not equal freedoms. I see there being a subtle difference between the two.

All this being moot, however, when considering the federal constitutional ammendment being proposed. This entire section you quoted relates specifically to what states can do, not what the federal government can do. So I'll assume you were only addressing the state-level laws being passed at the moment.

That in mind, I re-iterate that I don't recall anywhere in the US constitution it saying that each and every person can marry whomever they wish, regardless of sex of the person they are marrying. Thus, the state laws that restrict marriage are not abridging the privileges given by the federal government. Thus these laws do not go against this section of the constitution (unless I am mis-interpreting it).

As usual, please correct me if you feel I have misunderstood anything.
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From:samsamsamantha
Date:13:15 26.Feb.2004 (UTC)
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Constitutional Amendment XI
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Constitutional Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.

The supremacy clause only indicates that the laws that are made by the Federal government are to be supreme over the state laws, it doesn't give the Federal government any extra rights in making laws.

That's given by the necessary and proper clause which gives congress the right to make laws that are "necessary and proper" for ensuring that their enumerated powers can be cared out. Personally I think this has been over used, because it is only supposed to be used for carrying out those 17 powers indicated in the original constitution under Article I, section 8.

My point is that while the federal government may have the right to protect our rights, it does not have the right to GIVE us rights, because those rights were always ours. This idea comes from the social contract theory that our government was based on. This theory is (or so my "American Government" book states) "The belief that people are free and equal by god-given right and that this in turn requires that all people give their consent to be governed"

Having said that, as far as I can see it is constitutionally legal for the individual states to decide that they don't want to allow gays to marrage in there state. (Whether I personally agree with their laws, or not, is currently a mute point.)

From what I can tell though it was not constitutionally legal for the Federal Government to allow states to individally decide if that they are going to repect the gay marrages done in other states. This conflicts with the full faith and credit clause, found in Article IV, "which mandates that states honor the laws and judicial proceedings of the other states" (again quote from PolSci book.)

Okay, I'm done with quoting at you for today.
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From:lograh
Date:14:34 26.Feb.2004 (UTC)
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no, no, please quote more! I like discussions best when there is a lot of supporting evidence on all sides.

I agree, it was unconstitutional for the feds to pass a law allowing states to ignore marriages done in other states.

I agree, it is perfectly okay for states to restrict what marriages they choose to hand out.

however, I disagree with:
it does not have the right to GIVE us rights
unfortunately, while the social contract theory is very appealing and quite pretty to think of, it doesn't hold in practice. Our government may have been based on it, but it is no longer anything like what it was based on (you don't have to be a white male landowner to vote anymore, for example). Further, the federal government does have the power to give rights in some specific situations. If some states (like CA, for example) decide that gay marriage should be illegal, and the feds decide otherwise (stop laughing), then the federal government can pass a law (or perhaps it would have to be an ammendment, whatever) that gay marriage is legal, and thus it would have given (back) that right to the millions of CA residents who otherwise would not have had it. No, the feds cannot give rights that have not been previously taken away, on that I agree, but to say that the lack of enumeration of a specific right in the constitution is equivalent to an express granting of that right is a bit of a misnomer.

I'll not debate the status of the "necessary and proper" clause as to it's being abused or not, it's not the point of this discussion. I never meant to say the supremacy clause gave the federal government the right to make laws. I'm sorry if that is how my remark came across.
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From:samsamsamantha
Date:1:59 27.Feb.2004 (UTC)
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Okay, they can give us back rights, that have been taken away by themselves or states, amusing that they can find a constitutional clause to back up their right to make a law reinstating those rights...

However, the difference between them passing a law, and trying to pass an ammendment is huge, because the federal government alone doesn't have the right to pass ammendments. Congress has the right to "propose" ammendments, if 2/3 of Congress agrees that the ammendment should occur... However it takes 3/4 of the states to agree on said ammendment before the constitution can be ratified. So, taking your example, while CA wouldn't have to agree to the new (laughable) ammendment, about 38 other states, as well as the federal government, would before the right to gay marriage could be given back to the CA residents.
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From:aaangyl
Date:2:37 26.Feb.2004 (UTC)
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I'm with zunger and a few others and the concept that we should have a variety of different default marriage/civil union contracts, kinda like a build your own creative commons union type thing. There are multiple plusses to this, not the least of which would be it would force people to sit down and actually work out for themselves what they were about to legally agree to, on a caluse by clause basis. You could have little modules for spousal support, property distribution, pets, children, minor property, financial contribution, contract terms, penalties for breach, addition of partners, all of that. You could even set it up to be renegotiated upon certain events or after certain spans of time, like other contracts.

... oh shit, I left this unfinished for hours and now I'm too doped up to remember where I was going. Oh well, I'll post what I have so far and converse further later if necessary, heh.
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From:lograh
Date:5:48 26.Feb.2004 (UTC)
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an interesting idea, but I'm not entirely certian it would work. The problem I can see with this being that there are multiple outside parties that treat people differently based on their being "married" or not. Health care being a prime example. So, it would add a huge ammount of paperwork and application review if the health care companies had to take each and every person that says they are "married" and had to review their actual marriage contract to see if it had sufficient clauses in it to qualify them for the spousal coverage. Right now, it's easy: Married = covered (with most companies). If you made the marriage contract piecemeal, with people being able to cut out certain parts, then that simple rule suddenly expands into a whole slew of "spouses are covered iff the contract includes modules a, d, and f but not modules 3, e4, and g, with the exception of cases where d and g are both there, but not in those cases with d, g, and h together, and only if the maximum number of people is 3." You see the headache this would create? I wouldn't be at all suprised if heath care companies just decided to cut all spousal coverage.

I like the idea, but I disagree that any of the "altered" marriage contracts should be expected to ever have the same functionality. Let people join into non-"marriage" unions, yes, as long as they don't expect anyone to recognise their union. There are whole industries that would be greatly impacted economically if marriage suddenly became more than just two people.
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From:samsamsamantha
Date:2:30 27.Feb.2004 (UTC)

You have my curiosity....

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I had a similiar idea, were civil union could just be used as a contract to indicate an agreement that 2 non-blood-relatives see each other as family. I figured the first part of the form would be a list of check boxes indicating the form of relationship (as in romantic mate, life long friend, adoption of a dependent, etc.)

I could begin to see how the paper work could get a little messy, but I don't think I get the whole scope of it. You see, my gut reaction to the Health Care example, is that it would be pretty simple to just say you can choose one person you live with and have a Civil Union with to include under our health care as a spouse. I mean, why bother with researching the forms? Or caring how many civil unions you have? You get one adult, above and beyond yourself, and x number children dependents (assuming all adults and dependents are living with you) under our plan.

But you mentioned other industries that would be affected and I was hoping that you might be willing to expand on that thought with a few more examples.
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From:eazycheeze
Date:6:29 26.Feb.2004 (UTC)
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Here here!

I say, give em their cake, and watch 'em eat it while you eat your own. Cake for everyone! psychopaths too! Yay for cake! metaphorically speaking, of course.
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