T Nation

Gay Marriage in Mass.. - a Twist

[quote]LIFTICVSMAXIMVS wrote:

No one should be able to decide the fate of individuals in personal matters that do not harm others.[/quote]

A fantastic personal opinion, but such an extreme view has absolutely no such history or foundation in this country or any other country. Such a view would be radically new and the burden would be on you to convince others to get on board with that, but don’t act as though our law recognizes that approach - it doesn’t and never has.

Really? That is news - the state can and always has had the ability to pass laws to protect the health and welfare of its citizens, including public morality. What you offering is what you think the state should do, not considering what a state can or can’t do as of right now.

You mean that goes for bigamists, polygamists, polyandrists, and incest as well? You have made a broad pronouncement - does it go as far as I have suggested? You don’t suggest any limits - are there any?

Actually, completely and utterly false - that is not the basis for all our laws and never has been. You might prefer that, but that is not what our law is based on. At no time has our law had this extreme libertarian view, and likely never will.

But more to the point, even if you want it to be so, stop saying that our law is that libertarian arrangement currently and any violation of that position is ‘illegal’. That is patently wrong.

There is no way you can be taken seriously with the opinions you have espoused. The state can do lots of things you prefer it didn’t - until you realize that, you have little to offer to the current problem.

[quote]thunderbolt23 wrote:
There is no way you can be taken seriously with the opinions you have espoused. The state can do lots of things you prefer it didn’t - until you realize that, you have little to offer to the current problem.

[/quote]
That is why I use the word should. It still does not change the fact that it is wrong to legislate morality for it’s own sake.

[quote]LIFTICVSMAXIMVS wrote:

That is why I use the word should. It still does not change the fact that it is wrong to legislate morality for it’s own sake.
[/quote]

Is a law that bans you from being naked on a public sidewalk morally wrong?

Aside from that, no matter what your opinion, you still haven’t answered who should decide the right in the context that we both know someone can decide. You don’t have to like the decision, but the remaining question is: who decides?

And actually, in this case, you actually do like the decision - the mandate of gay marriage. But who should be the ones responsible for creating gay marriage - a positive right, by the way - out of whole cloth?

[quote]thunderbolt23 wrote:
Is a law that bans you from being naked on a public sidewalk morally wrong?

[/quote]
Nudity is not immoral–even in public. It may be a safety hazard in extreme cases.

[quote]thunderbolt23 wrote:

Aside from that, no matter what your opinion, you still haven’t answered who should decide the right in the context that we both know someone can decide. You don’t have to like the decision, but the remaining question is: who decides?

[/quote]
The couple that wants to get married decides.

[quote]LIFTICVSMAXIMVS wrote:

The couple that wants to get married decides.[/quote]

Pathetic. This is beyond comic.

You want the couple to decide, but that can’t be because gay marriage does not exist to recognize in law their decision. So I will explain it simply:

  1. Gay marriage does not exist (with few exceptions) and it is not recognized in law

  2. In order for gay marriage to exist, one of our government institutions would have to create it

  3. Which government institution should decide if and how gay marriage will exist?

This remains the question at the center of the debate over gay marriage, one that you can’t or won’t get.

Couples can decide to get legally married only after that union is recognized in law. Again, who decides whether it will exist as a matter of law?

[quote]thunderbolt23 wrote:
LIFTICVSMAXIMVS wrote:

The couple that wants to get married decides.

Pathetic. This is beyond comic.

You want the couple to decide, but that can’t be because gay marriage does not exist to recognize in law their decision. So I will explain it simply:

  1. Gay marriage does not exist (with few exceptions) and it is not recognized in law

  2. In order for gay marriage to exist, one of our government institutions would have to create it

  3. Which government institution should decide if and how gay marriage will exist?

This remains the question at the center of the debate over gay marriage, one that you can’t or won’t get.

Couples can decide to get legally married only after that union is recognized in law. Again, who decides whether it will exist as a matter of law?
[/quote]

Governments did not create marraige therefore they have no right to define it. If I wanted to share my stuff and create a union between myself and another person it is my right to do so–I do not need permission–marraige should be the same way. The only time government should become involved is in making sure all parties are taking responsibility for their respective legal duties in such an arrangement–for example, financial, etc.

[quote]LIFTICVSMAXIMVS wrote:

Governments did not create marraige therefore they have no right to define it. If I wanted to share my stuff and create a union between myself and another person it is my right to do so–I do not need permission–marraige should be the same way. The only time government should become involved is in making sure all parties are taking responsibility for their respective legal duties in such an arrangement–for example, financial, etc.[/quote]

Why do you constantly avoid the question?

Governments most certainly do define marriage legally and have long before you came along, and they will long after you have gone. Telling me what you think should be the case is nothing more than sidestepping the pertinent question.

This has become laughable - and aren’t you one of the ones that has tried to tell anyone who would listen that academics are the bright ones in society?

Plain awful.

[quote]thunderbolt23 wrote:
LIFTICVSMAXIMVS wrote:

Governments did not create marraige therefore they have no right to define it. If I wanted to share my stuff and create a union between myself and another person it is my right to do so–I do not need permission–marraige should be the same way. The only time government should become involved is in making sure all parties are taking responsibility for their respective legal duties in such an arrangement–for example, financial, etc.

Why do you constantly avoid the question?

Governments most certainly do define marriage legally and have long before you came along, and they will long after you have gone. Telling me what you think should be the case is nothing more than sidestepping the pertinent question.

This has become laughable - and aren’t you one of the ones that has tried to tell anyone who would listen that academics are the bright ones in society?

Plain awful.

[/quote]
I am not suggesting that it isn’t the way you state it is–I am suggesting that it should not be that way. As far as an answer I believe I already did that 3 posts ago. It is not the government’s job to decide other people’s fate vis a vie marriage.

The fact of the matter is that marriage grants individuals certain rights and privileges and denying those rights and privileges to others based on sexual orientation is wrong. What is legal is not always right and what is right may not always be legal.

Some states call that type of marriage a ‘Civil Union’–this is the same thing as regular marriage–we are engaged in a war of semantics.

[quote]thunderbolt23 wrote:
This is classic Vroom - several paragraphs that don’t do much other than summarize a few basic points but ignore the crux of the problem. Everyone knows full well the judiciary doesn’t stand behind legislators and make them vote like parents leaning over children to make sure they are doing their homework. [/quote]

If it’s classic basic material, how come you don’t understand it?

[quote]But there exists a deference to judiciary as a co-equal branch of government - legislatures respond to court rulings. What happens when that deference disappears?

Here is an example that might illustrate it better for you - what if the Bush administration decided to completely ignore the Supreme Court’s rulings on Gitmo detainees and decided to house them and provide trials in complete contravention to the court ruling? Your previous posts seem to suggest that wouldn’t be a big deal. And you would be wrong.
[/quote]

Look, the issue is NOT that the court says X or Y, the issues is that the court says that law Z applies. If law Z applies, then the legal system is in place to launch investigations and lay charges against the guilty parties.

See the basic concepts I talked about above where I mentioned penalties and enforcement.

It isn’t that the court is necessarily making the rules, but it is saying which rules do or don’t apply, or whether or not there is, in their view, a loophole that allows the government to ignore the law.

See, what part of the basic simple background did you not follow?

Once you fathom how this stuff works, then you’ll understand what the hell I’m talking about. As for my being “excited” which is nonsense, I’m happy whenever the government is forced to recognize the basic rights of humanity over it’s own powers.

That should be basic and simple enough that even you get it.

[quote]thunderbolt23 wrote:
LIFTICVSMAXIMVS wrote:

Governments did not create marraige therefore they have no right to define it. If I wanted to share my stuff and create a union between myself and another person it is my right to do so–I do not need permission–marraige should be the same way. The only time government should become involved is in making sure all parties are taking responsibility for their respective legal duties in such an arrangement–for example, financial, etc.

Why do you constantly avoid the question?

Governments most certainly do define marriage legally and have long before you came along, and they will long after you have gone. Telling me what you think should be the case is nothing more than sidestepping the pertinent question.

This has become laughable - and aren’t you one of the ones that has tried to tell anyone who would listen that academics are the bright ones in society?

Plain awful.[/quote]

What in the hell is wrong with you?

He’s saying marriage SHOULDN’T be defined by the state, because it’s wrong.

And Because it IS defined by the government, they have no right to deny it to two people who are not taking advantage of the system in any way.

The question here is; Why don’t you want gay people to get married?

Simple as that. Trying to say it’s about separation of powers is just an excuse to squash gay marriage. If it was a bill denying the government the right to search your home, because the government decided to define the “home” as a public area, would you have the same sentiments?

[quote]vroom wrote:

If it’s classic basic material, how come you don’t understand it?[/quote]

I didn’t say it was classic basic material, I said it was classic Vroom - and classic Vroom is rarely all that useful’ it is mostly just reams of text that add nothing especially new or interesting to a given discussion. But wow, if you got paid by the word…

[quote]Look, the issue is NOT that the court says X or Y, the issues is that the court says that law Z applies. If law Z applies, then the legal system is in place to launch investigations and lay charges against the guilty parties.

See the basic concepts I talked about above where I mentioned penalties and enforcement

It isn’t that the court is necessarily making the rules, but it is saying which rules do or don’t apply, or whether or not there is, in their view, a loophole that allows the government to ignore the law.[/quote]

Well, that was a horrible explanation, filled with typical gaseous abstractions. Just focus on the details.

Here is the problem - the Massachusetts Court expressly said that the lack of gay marriage was in violation of the state constitution and the state legislature had to fix it by passing a law.

If the next state legislature, angry at the court, passes no such legislation, the entire institution of judicial review is rendered a nullity, and the judicial check against the legislature is gone.

Now, your explanation - or whatever it was - simply whistles past this problem and doesn’t address it. You focus on criminal law, which has no bearing on an Equal Protection claim. No one will get in trouble for not recognizing a gay marriage because there would be no law.

You talk of a ‘loophole’. Loopholes are exceptions, Vroom - what the court is suggesting is giving every ruling a loophole: it can’t be mandated.

In the case we are talking about here, you also say a court decides which law applies and how it applies. But that, again, is the point - that is exactly what is not occuring, it is the opposite in fact: the legislature gets to decide how the law applies every time, regardless of what the court has decided on how the law applies.

This is bizarre - both sides of the debate in Massachusetts understand exactly what is going on, which is why they were outside the capital today. And you still don’t?

Vroom, you didn’t say anything.

And here is where you keep missing the point - the government has not been forced to recognize the basic rights of humanity over it’s own powers - that is precisely the dilemma. There is no force at all. The ruling is meaningless as authoritative law - this according to the court itself by both text and choosing favorites in the dispensation of justice.

It’s worth asking - do you even know what you are disagreeing with anymore?

[quote]vroom wrote:

Look, the issue is NOT that the court says X or Y, the issues is that the court says that law Z applies. If law Z applies, then the legal system is in place to launch investigations and lay charges against the guilty parties.

See the basic concepts I talked about above where I mentioned penalties and enforcement.

It isn’t that the court is necessarily making the rules, but it is saying which rules do or don’t apply, or whether or not there is, in their view, a loophole that allows the government to ignore the law.
[/quote]

vroom,

The problem here is that the court is saying law X applies, and the legislature was refusing to follow it. It’s not even controversial what it means – it’s the equivalent of the legislature refusing to follow a speed limit.

The state constitution says lawmakers will vote on items if enough voters sign petitions – it allows direct access to the ballot, a structural defense in the MA constitution against lawmakers blocking the popular will. The threshold to pass it on to a ballot measure is extremely low for just this reason – it’s something on the order of 25% to pass to a direct vote of the people.

The funny part is that essentially you’re taking the position that this is “non news” because there’s no enforcement procedure? Perhaps you agree with the old Jacksonian position – when confronted with a decision he didn’t like, he replied “Let’s see them enforce it.” (My paraphrase). I believe he was specifically referencing a decision by the USSC relating to the rights of Seminole Indian tribes under a treaty, but I’m going on memory. Why would I even know some little factoid like that from history books? It’s obviously not interesting – just a little separation of powers fun…

Or maybe it would be a hoot if the Bush Administration just simply refused to enforce laws relating to abortion clinics? That’s quite a loophole isn’t it?

However, this is moot, because the legislature was shamed into taking action by the court opinion – I guess they didn’t want to look like complete scofflaws – might be a bad example for all of us taxpayers…

http://www.breitbart.com/news/2007/01/02/D8MDBAK80.html

[quote]LIFTICVSMAXIMVS wrote:

Governments did not create marraige therefore they have no right to define it. If I wanted to share my stuff and create a union between myself and another person it is my right to do so–I do not need permission–marraige should be the same way. …[/quote]

This is true – but governments do decide criteria upon which to give benefits. Governments could decide to give benefits to all left-handed people if they wanted to, because right-handedness is not a constitutionally protected category. And because sexual orientation is also not a constitutionally protected category, the government gets “rational basis” scrutiny for any categorization of benefits it wants to make w/r/t sexual orientation.

Technically it’s an even more minor distinction: the government cannot be forced to offer benefits to people on the terms such people want the benefits. In this case, the government offers a package of benefits to people of different sexes who get married. A gay man can legally marry a woman and attain the same benefits.

Also, the vast majority of marriage benefits are available via contracts – not in the same tidy, automatic package, but definitely attainable. The obvious exception is tax and social-security benefits – which actually aren’t affected at all by state marriage laws. A gay couple married in MA right now still couldn’t get SS benefits or federal tax benefits.

[quote]Beowolf wrote:
What in the hell is wrong with you?

He’s saying marriage SHOULDN’T be defined by the state, because it’s wrong.[/quote]

And that has nothing to do with the question, genius. States can define marriage any damn way they please, and gay marriage doesn’t exist. So who should decide? And why does it matter? More on this later.

Though this is separate to the question I posed, it is nonsense. The government has always had the power to delineate marriage among specific parties - witness the outlawing of polygamy. Now the government can’t? What changed? Nothing - the power remains. The argument that the government can’t exclude homosexual unions is ridiculous - maybe it shouldn’t, but it most certainly can.

I don’t support gay marriage, but that isn’t what is being discussed. I could give you a laundry list, but is irrelevant to who I think should be deciding whether we have gay marriage or not.

Nonsense, you’ve shown your ass now, and all you have done is show that you are incapable of seeing the issue. The point is who decides? Should gay marriage emanate from legislation via the people’s preferences? Or should it come from judges sitting as an oligarchy? Self-government is one of those popular themes that arise in American history, of course - you know, like fighting a Revolution against the British over the issue.

Your commitment to gay marriage seems absolute. What if the same judges you entrust to hand down law like diktat decide to strike down legislatively passed minimum wage laws as violating a “natural right to contract”? Would it suddenly matter to you who should be deciding such policy questions, judges or elected representatives? Would I come here blathering like an idiot screeching “why do you hate the right to freely contract any way I want to so badly???”

I’d spare you of such amateurishness, so I in turn ask you to spare me of it.

Foolish example. There is express constitutional language addressing this issue, as a matter of explicit text going back to the birth of the document.

And how exactly does a bill denying the government the right to search a home - thereby stopping them - make people upset?

I keep hearing people say that ‘the public’ is completely ignorant of the issues at play in politics. Lately, I am inclined to agree.

[quote]LIFTICVSMAXIMVS wrote:

I am not suggesting that it isn’t the way you state it is–I am suggesting that it should not be that way. As far as an answer I believe I already did that 3 posts ago. It is not the government’s job to decide other people’s fate vis a vie marriage.

The fact of the matter is that marriage grants individuals certain rights and privileges and denying those rights and privileges to others based on sexual orientation is wrong. What is legal is not always right and what is right may not always be legal.

Some states call that type of marriage a ‘Civil Union’–this is the same thing as regular marriage–we are engaged in a war of semantics.[/quote]

No, we aren’t. Governments most certainly get to decide the legal nature of marriage. We don’t live in Lifticus’ Pet Utopia - we live in the world as given. What you want and what is real is quite obviously different.

Now, given that constraint - someone has to decide. Should it be judges? Or should it be elected representatives? One is democratic in nature, one is relatively monarchic. Which answer you prefer matters - and that is the heart of this whole battle over gay marriage.

You can think whatever you want is wrong, but you aren’t thinking about the structure of how decisions are made. What kind of structure do you want in the context of the natural constraints that the world will never be a perfect rendering of your beloved PerfectMagic-ville?

Learn to think.

[quote]thunderbolt23 wrote:
Well, that was a horrible explanation, filled with typical gaseous abstractions. Just focus on the details.
[/quote]
LOL!

[quote]
Here is the problem - the Massachusetts Court expressly said that the lack of gay marriage was in violation of the state constitution and the state legislature had to fix it by passing a law.[/quote]

No, you are missing the point. From your explanation above, the lack of recognition of gay marriage is a violation of existing law. If the legislature does not pass a constitutional adjustment allowing such an exclusion then gay marriage must, by current law, be allowed.

The legislature can do whatever the fuck it wants to about this situation. If it chooses to do nothing, then it accepts the fact that not allowing gay marriage violates the law.

The only reason any of this is complex or exciting is because you are trying so hard to find a way to avoid having to allow gay marriage.

Not at all. The courts have expressed their view as to what the existing laws mean. If the legislature, in it’s wisdom, does nothing, then the situation as laid out by the court will be in effect.

At least this is the what comes from your wording above, I presume you have it right.

[quote]
Now, your explanation - or whatever it was - simply whistles past this problem and doesn’t address it. You focus on criminal law, which has no bearing on an Equal Protection claim. No one will get in trouble for not recognizing a gay marriage because there would be no law.[/quote]

LOL! It’s the same idea. If the constitution requires equal protection and the actions of the government do not support equal protection, then the courts make that determination.

Whether or not the law in question is criminal is besides the point. The issue with criminal law is that in such cases the court really does have teeth, in that remedies for violation of the law are easily applied.

Damn, I’d be confused too if this above was my spaghetti thinking on the issue.

[quote]
And here is where you keep missing the point - the government has not been forced to recognize the basic rights of humanity over it’s own powers - that is precisely the dilemma. There is no force at all. The ruling is meaningless as authoritative law - this according to the court itself by both text and choosing favorites in the dispensation of justice.

It’s worth asking - do you even know what you are disagreeing with anymore?[/quote]

You miss the whole thing.

I’m saying that it’s wonderful that the court said the state legislature “had to fix it” but that’s not the way things work. It’s readily apparent that the court does not have the power to do more than apply laws and execute the remedies afforded to them.

What the fuck is so confusing about this to you?

At times they have power, and at times they don’t, so in essence, in this case the courts have suggested the appropriate outcome to the situation… and the legislature is treating it as such.

People are bitching and whining because the issue is gay marriage, not because of the situation itself. That is the part you seem to be missing…

And, people like yourself really want the legislature to find a way to outlaw gay marriage and you’d really like the courts suggestion to be enacted. Big fat hairy deal. Vote in somebody that is willing to do so.

[quote]thunderbolt23 wrote:
No, we aren’t. Governments most certainly get to decide the legal nature of marriage. We don’t live in Lifticus’ Pet Utopia - we live in the world as given. What you want and what is real is quite obviously different.

Now, given that constraint - someone has to decide. Should it be judges? Or should it be elected representatives? One is democratic in nature, one is relatively monarchic. Which answer you prefer matters - and that is the heart of this whole battle over gay marriage.

You can think whatever you want is wrong, but you aren’t thinking about the structure of how decisions are made. What kind of structure do you want in the context of the natural constraints that the world will never be a perfect rendering of your beloved PerfectMagic-ville?

Learn to think.[/quote]

Take your own advice.

When the legislature makes laws that don’t violate their own constitution, then you’ll have the legislature making the decisions.

It’s as simple as that. The ONLY reason you have your nuts in a twist is because of the issue involved. Elect some officials who are willing to try to amend the laws…

That’s the proper path around court interpretations you do not like. It isn’t the courts fault that the legislature writes conflicting laws and puts rights into constitutions.

Perhaps you can have the legislature remove all rights for gay people, if it would make you happier. Maybe you could ship them all to GITMO for good measure? Good luck!

In case there are any non-bigots reading this…

There is an important principle that exists with respect to rights, and it is often enshrined in a constitution or related documents.

Basically, in free societies, except where afforded by law, rights belong to the citizens. It isn’t that people can’t do things unless the law allows it, it’s that people can do things, unless the law disallows it.

This means that we can wear ipods or dye our hair blue if we want, because there are no laws that prohibit it.

Under such a system, unless laws exclude gay marriage, then gay marriage exists if gay people decide to get married.

The question for the bigots is really whether or not you believe in freedom and rights. Giving people freedom, and rights, means that you’ll have to watch people do things you don’t agree with.

That might mean burning your flag, burning books, burning bras, gay marriage, or whatever. If you actually truly believe in your constitution, the importance of rights and freedoms, then you’ll have a hard time fighting to outlaw gay marriage.

Do you really believe in freedom, or do you just brag about it?

That is the fucking issue or principle underlying the gay marriage issue, and a lot of people are too busy letting their bigotry get in the way to allow other people the freedoms that their country was built upon.

[quote]vroom wrote:
In case there are any non-bigots reading this…

There is an important principle that exists with respect to rights, and it is often enshrined in a constitution or related documents.

Basically, in free societies, except where afforded by law, rights belong to the citizens. It isn’t that people can’t do things unless the law allows it, it’s that people can do things, unless the law disallows it.

This means that we can wear ipods or dye our hair blue if we want, because there are no laws that prohibit it.

Under such a system, unless laws exclude gay marriage, then gay marriage exists if gay people decide to get married.

The question for the bigots is really whether or not you believe in freedom and rights. Giving people freedom, and rights, means that you’ll have to watch people do things you don’t agree with.

That might mean burning your flag, burning books, burning bras, gay marriage, or whatever. If you actually truly believe in your constitution, the importance of rights and freedoms, then you’ll have a hard time fighting to outlaw gay marriage.

Do you really believe in freedom, or do you just brag about it?

That is the fucking issue or principle underlying the gay marriage issue, and a lot of people are too busy letting their bigotry get in the way to allow other people the freedoms that their country was built upon.[/quote]

vroom,

That’s an interesting natural law outlook, and an interesting philosophy. It really has nothing to do with governments that have amassed the power ours have under modern welfare states, but it’s interesting nonetheless.

However, this particular debate is about access to government-provided benefits. There’s no law on the books that says gay people can’t go into a church and have a ceremony calling them “married.” There’s also no law on the books that would prosecute them for living together and claiming to be married – unless of course they were claiming to be married on federal tax forms… How many gay people have you seen prosecuted for wearing rings or calling themselves “married” in social settings?

As for the other benefits of marriage, try powers of attorney, wills, living wills, etc. – contracts that are certainly open, available and enforceable irrespective of sexual orientation.

If you don’t like the fact that the government can attach conditions to benefits, perhaps we should revisit how it is the government is allowed to discriminate on the basis of any category? Benefits for all or benefits for nobody? There go scholarships - they discriminate against stupid people who can’t get in to college. Welfare programs – discriminatory against the employed. Research grants? Obviously discriminatory against non-researchers. Spending projects for California? Obviously discriminatory against North Dakotans. Foreign aid spending – discriminatory against U.S. citizens. Etc.