I'm not sure why you quoted me for this, because it has nothing to do with anything I talked about. I didn't say anything about marriage, courts, the Constitution, or any of that. The only thing you said that related to my post at all was about skipping over the questions, but that's the same thing he's doing. He's just arriving at a different answer.
The rights of the states to determine what marriage means legally is a lot more sticky than the Federal government deciding this for all the states. The Federal government has no constitutional power to dictate what marriage legally means, and so I figure the decision will come down against DOMA. Marriage equality in the states will likely require an approach from the viewpoint of civil rights. Can marriage be equated to voting on the Federal level? Maybe not, since voting is specifically mentioned in the US Constitution, but nothing about marriage. It then comes back to the 1,100+ Federal laws that grant special status to married couples. Is it right to discriminate like this at the Federal level if some states discriminate like this at the state level? The lesbian widow who had to pay Federal inheritance tax is a prime example of the discrimination and the resulting resentment of a system that has a glaring and persistent systemic problem, which involves the demarcation of Federal and state powers. This court will likely uphold states' rights, but that will also mean the death of DOMA.
I can't say I disagree with any of that. But, for gay marriage advocates, you'd have to think that the DOMA case is less important than the Proposition 8 case.
Since you did not even begin to identify how you claim I was engaging in hypocrisy, your failure to do so shows how weak your argument is. And add in that since you chose to engage in namecalling, you can go F yourself. Or have your brother, sister, horse or whatever do it to you. I specifically identified self described bisexuals as people who by definition engage in sex with either sex. And as I understand it, can choose to engage in sex with either. I am also aware of no study showing that sexual attraction is a purely inherited and involuntary chemical reaction. By pure I mean no other factors are involved. Your assumption to the contrary is tendentious and obnoxious.
Again, this is the kind of reasoning that my liberal friends seem all too willing to accept as long as the net result is an acceptance of gay marriage. Such people apparently are clueless about the larger issue, larger because it affects ALL of us, to limit federal powers in the name of states rights. The states rights argument, both historically and particularly today, where conservative activists have hijacked control of too many state governments, is retrograde and anti progressive. But if someone like Justice Kennedy says he doesn't like DOMA because it invades the provinces of the states (without any real basis for saying so, of course), then the gay rights proponents are all for that. Do you not understand the way the law works? How a decision to invalidate DOMA under a states rights argument can become the precedent for all kinds of right wing agenda mischief? Well, if all you care about is gay marriage, I guess none of that matters to you. Look at the bolded statement - where does that position come from? It is first of all patently false, since at least as far back as Loving v. Virginia, the courts ended up interpreting the civil rights amendments and enacting legislation to invalidate a state law prohibiting interracial marriage as violative of the US Constitution. But of course I also concede that Loving was based on those civil rights laws and rulings. Take something entirely afield from this argument. Under common law of the US, corporations and other business associations are creatures of state law. Does that mean the federal government has nothing to say about how corporations manage themselves and affect others? Of course not. This is not an either or propostion, in short, but we should be reluctant to wheel in the Trojan Horse invalidating DOMA under a states rights arugment. Be careful what you wish for.
This behavioral choice argument which I fully embrace doesn't mean the State can't regulate. Pedophile, incest, rape, serial murder, my love of chocolate with peanut butter (Disgusting as it is) are all likely chemical reaction. It's pretty clear that the entire concept of freewill and the release of hormones in our body are in direct conflict all the time. That doesn't mean society can't govern based on some set of societal norms. Is our predisposition to behavior outside the norm of society really constitutionally protected? Is marriage really based on our pre-disposition to sexual attraction? Being married and being pre-disposed to have sex with women, lots of them, all the time, seems like an implausible concept. The Gay community has reached the point of creating a class and shifting society’s values toward acceptance of their behavior. They effectively have the right to marry and they probably will be granted to have their marital status upheld by the Federal government and all of the States. That doesn't mean their right to marry should be granted by federal fiat in every State because it's constitutionally protected.
It certainly feels like a matter reserved exclusively to the states, if only because that's where the power has always been. And there were justices on both sides of the Court making that Federalism argument. But I agree that there are perfectly reasonable Constitutional arguments to uphold DOMA. Where we disagree is that I don't think you need to buy in to 100 years of runaway Commerce Clause jurisprudence to uphold DOMA. It would be perfectly reasonable for the Court to suggest that the taxing power could be exercised more efficiently if Congress could define and regulate marriage. Or, better still, you could tear into decades of Commerce Clause cases by saying that DOMA is simply intended "to regulate commerce among the several states." Back to the original text. Exactly what the Framers originally envisioned. Not that I think any of that will happen. I still think that the law will be chucked, because Congress never considered any of the valid reasons for regulating marriage on the Federal level. Instead, it chose a dopey reason like "protecting the institution of marriage." And then went the next step to give it an equally dopey name. So, this case was set up for really narrow and unsatisfying decision that tells us something like, "'Protecting the institution of marriage' isn't a legitimate government interest for Congress to regulate, because marriage has been traditionally left to the states." Or some such thing. That'd be a victory for the LGBT community, and a great near-miss for your side of the Constitutional aisle.
Debate on same sex marriage is more fun if you flip the facts around. Imagine a small state like Maryland becomes home to a large community of gay residents. A majority, even. It would take some time, but it's not so far fetched. Imagine they wanted to make their state uber-gay, excluding as many breeders as possible, and so they validly amend the Maryland state constitution to define "marriage" as a legal union between two people who are currently or formerly of the same sex. Imagine they even wanted to allow marriage between family members of the same sex; because, after all, you wouldn't have to worry about knocking up your brother or sister. Maybe you even allow marriages of five or six at a time, although eventually you'd run out of window treatments and flannel shirts. States rights wouldn't sound so bad to some people.
Isn't the definition of marriage the same sex? How can anybody argue that the same sex and marriage don't go together? Ok, that was Rodney Dangerfield's approach to the issue. Just thought I'd add it in since the legend is no longer among us.
Well, it is relevant to the discussion, but most would feel far afield of the issue of gay marriage, to talk about federal court review of the asserted bases for federal legislation. Of course the Congress should help everybody out, including the courts, by being as clear as possible. But they fail at that sometimes, certainly the clear as possible part, and in the case of DOMA, you are right the very name of the legislation is not all that helpful. But it takes no great effort to ascertain that there is a connection between the legislation in question and an area of federal jurisdiction under the Constitution. I merely meant to point out that it is not enough to say that 'normally" the federal government has left some area of law to be dealt with by the states as amounting to some kind of bar to future action if in fact there is a basis for federal jurisdiction. And no doubt those who for whatever reason want to limit federal jurisdiction find the broad nature of the Commerce Clause to be problematic, even obnoxious. But it is broadly worded, and much mischief can ensue from attempts to narrow it on a case by case basis, with no real guide to doing so other than the political preferences of the justices involved. It should be clear that the Tenth Amendment itself is no useful guide where there is grounds for a broad assertion of federal jurisdiction. (Ftr I always thought of the Tenth Amendment as, if not a dead letter, not much more than a fancy form of reassurance that indisputably state and local government operations would be allowed to operate as historically, but subject to "reasonable" federal jurisdiction. In other words the Fourteenth Amendment must be read with the Tenth, together with any other relevant provisions concerning federal jurisdction over the matter in question.) I think most reasonable people even on the right would (despite at least a sometimes felt antipathy to federal jurisdiction) nonetheless agree that a mere failure to act in the past by the federal government does not mean future action is precluded where there is a reasonable case to be made for federal jurisdiction. For example securities regulation was largely (virtually entirely?) a matter left to state regulation before the Great Depression. No doubt there were arguments made against the 33 Securities Act, and the 34 Securties Exchange Act, that were states rights arguments. But to argue that hte commerce clause did not provide a basis for those two important pieces of federal law would be quite simply ridiculous. In other words, there were and remain legitimate bases for federal jurisdiction in DOMA, even if the Congress was rather hasty in failing to better refer to them, and in that connection prior state level regulation of marriage, and a general absence of direct federal legislation, did not mean there was no federal jurisdiction.
Congress isn't the only problem. The current President has decided not to prosecute based on his own view of Constitutionality.
Or his view of the politics of it. But whatever the basis, I seriously doubt he questions whether the federal government has any jurisdiction over marriage. Most likely he would instead say it is an equal protection case, which I don't think is a sustainable position. As you know I am mostly on the progressive side of many issues, political, economic and otherwise. But I have doubts about gay marriage as a matter of social policy, to be sure. And I frankly resent seeing fellow progressives act as if this is some kind of litmus test of whether you are "really" a liberal or not. that resentment only is compounded when I see them make questionable Constitutional arguments as if they are beyond question. But... neither do I expect anyone to always agree with me, just as I do not feel surprised with myself if on this or that issue I do not follow the party line. I suppose the best that can be said for the Constitutional position in support of gay marriage is that even under an equal protection analysis at the lowest level of scrutiny, that there is no state interest in distinguishing between marriage between heterosexuals and that between homosexuals. Well, under long standing equal protection analysis, I don't find that a persuasive argument, since all that need exist to counter it is identification of a legitimate purpose in having that distinction. It doesn't matter whether most liberals agree with that purpose, or even find it the least bit persuasive. Unless the grounds are a mere pretext, which cannot be argued, since there is no evidence that the traditional definition of marriage evolved other than as a practical acknowledgement that a child's parents had to be of the opposite sex, then the equal protection argument must fall away. I will not bother recounting the several aserted justifications for the distinction here. The piont instead is I find it troubling that the argument is presented by too many I otherwise agree with as if there is nothing to be debated, and that those on the other side are not merely wrong, but evil. I see too much of that coming from the right on other issues, and how obnoxious it is, to feel warm and fuzzy about it when it happens on this issue coming from the left.
Heh. I'm surprised people don't find more occasion to use that great quote in conversation. But maybe we need to wait until this current generation gets a bit older. Bigger sample size.
I listened to the DOMA oral argument over lunch. You'd appreciate hearing the Solicitor General and appointed counsel for the plaintiff doing backflips to steer the case away from federalism and make the case exclusively about equal protection with heightened scrutiny. Because the Solicitor General also conceded that there is rational basis for the statute. But they kept banging away at a House report from 1996 that expressed "moral outrage" over homosexuality. And both sides seem to agree that there's a way Congress COULD define marriage. I thought that was interesting.
The problems in this country stem from having too much government rather than too little. Everyone is worried that someone else from another party is going to control government and then use the battering ram of state force to make people do things they don't agree with. When the government is tiny, we no longer will have to worry about Democrats forcing people to recognize gay marriage or Republicans trashing civil liberties. Actually, when the government is that tiny then it's likely we won't have to worry about Democrats or Republicans at all because Libertarians will have finally succeeded. I personally don’t think that our government should have been involved in issuing marriage licenses in the first place! The decision for a church to marry you is the decision of that particular church. The problem is that some have ignored the original meaning of phrases in the Constitution to create a 'right' that suites their interests. Gov't doesn't give rights; it should be constrained from taking them. Why have marriage licenses. If a gay couple wants to make a commitment in front of their family and friends, and they choose to share their assets and lives, what business is it of the governments? I personally don’t think that no state or federal gov't should be able to say to a couple that has drawn up said contract that we cannot enforce it because it "violates public policy". I don't think we should force churches to marry gays. I'm sure they'll form their own churches for that purpose. This is more of an issue of legal rights. For example, being able to put your spouse on your health insurance, your spouse being able to inherit if you die intestate. Anyways, I wish we could go back to a place where States and the Federal gov’t did not legislate on these issues. We cannot keep looking to government to solve all our problems. We deal with the unintended consequences of government action every day. Peace out.
The only difference between a libertarian and an anarchist is the anarchist has a principled position.
What do you think the "Virginia State Colony for Epileptics and Feebleminded" is called in these politically correct days? "The Commonwealth Center for Cooperative Instruction and Adaptive Education" or some similar such meaninglessness. We've systematically bled all sense of poetry from the public realm
I am not banging my sister, because I am not attracted to her, nor will I ever be. To me, its nasty, but there are some that would disagree, so who am I to stand against it? Also keep in mind that banging is not always love. I see where you are coming from, though. I have a friend that subscribes to this theory, although I don't buy it. I think he's just a little gay haha. There are plenty of people that aren't "a little bit gay", however. Throwing everyone in that boat is a little silly. 2 dudes kissing or whatever grosses me out, but I'm certainly not against them doing what they want to do. I could never willingly participate in those actions, though. This is true. It started with sexuality in general being oppressed and repressed by religion. Before the 40s you weren't even allowed to wear shorts or skirts in public. Compare that with today, and there is a huge difference, but it's like I said in my other posts, people are still clinging onto ancient traditions as if they are applicable today and that is where the majority of people go wrong. Every decade we are fighting to free ourselves from another aspect of religious oppression. It's a shame. Homosexuality is about attraction and what turns you on. Sure you can feel other people's emotions manifest when you see them. I get this feeling as well and its independent of gender or attraction; it's because we understand what love feels like and we recognize that the observed people are in love and associate those emotions with the situations. It's called empathy and it's similar to feeling the suffering of the people who starve, or putting yourself in somebody else's shoes. It's not because you are slightly attracted to them or what they are doing, or because people are partially gay. Experiencing emotional empathy is something that not everybody can do, but it affects some stronger than others.
