Senate Homosexuality: the Thread

I was referring to how in the ancient world, being penetrated was seen as effeminate. (Wonder where they got that idea.) Spanish terms for gay men still refer explicitly to "top" and "bottom" positions. (By the way, this view is actually pretty common. I'm Oglala, and an Oglala man who sleeps with other men is normal, but if he starts acting feminine or is penetrated, it's seen as falling under a curse which will ultimately turn him into a woman.) Hence the "as with women" reference.

Fire_Ice_Death:
Drinking game: Whenever an antigay activist says that the ban on gay marriage is the only thing keeping people from reproducing, implying he would switch teams the minute society allowed him to do so, drink something ending in "tini" that isn't a martini.

 

Well at my Catholic high school, it wasn't "gay sex is no worse than having sex with your wife with a condom," it was "having sex with your wife with a condom is just as bad as gay sex." And it was the priest and the brothers who explained that rationale. As for "legitimate" relationships (in the eyes of the Catholic Church), opposite-sex relationships can or can not be "open to life" while same-sex relationships are never "open to life." Just different experiences with the Catholic Church, I guess.

In my experiences with the Catholic Church, they pretty much ignore homosexuality and don't make it an issue. And they don't believe in "curing" gays. On the social issues, they focus almost all their attention on abortion, and then somewhat on birth control.

 

Can I just say that I actually feel rather uncomfortable talking about homosexuality and the Catholic Church as I consider it to be rather hypocritical. They are against gays, but are unwilling (at least until recently) to answer for the actions of their own clergy. This is actually why I'm no longer a Catholoc, but I know they're not the only ones at fault in this way, meerly the biggest ones.

IMHO, they should get the log out of their own eye first. How can anyone take what they say seriously when this bad rep with sex goes back hundreds of years and just refuses to be acknowledged?

 

And I'm simply saying that I've never seen a Catholic official, or anyone at the Church I go to, specifically highlight this. They condemn all homosexual relationships, and don't point out that it's the sex they don't like. They demonize the entire relationship and refrain from acknowledging they can still love one another, without the sex. They may be against my use contraception, but they don't demonize my relationship with my wife or girlfriend because of we have sex without the intention of procreation. And I've never seen an official statement by the Catholic Church clearly expressing the different between homosexual love and sex.

 

Celibacy tends to do that. There's an old joke that the Book of Gomorrah (a list of the penance for just about every sexual thing imaginable from the Middle Ages) is what it is because some priests really needed to get laid.

It's all fairly hypocritical, of course. Pope Benedict was involved in the scandal where the Church sent its priests to psychiatrists as a front for sending them somewhere they're unknown. And that's why you get this:

[image=http://www.thegoodatheist.net/images/pedo_ben.jpg]

 

Well, it passed in Washington and it looks like it will pass in Maryland. Christie has vetoed it in New Jersey.

 

The more I think about it the more I believe it's time for the state to get out of the marriage business entirely. Fewer and fewer people seem to be marrying in places like Austria. The preferred thing to have in Austria instead of a spouse is a LAP, a Lebensabschnittspartner. Yes, that's one word. Your Lebensabschnittspartner or Life Partner has virtually all the legal rights of a spouse and a fellow parent, if you choose to have children. The formality and expense of getting a marriage license is simply unnecessary and confers no extra rights or duties.

If you clear away the legal hurdles to not getting married, as we should as a nation, we can have stable, happy couples for whom marriage is merely a private or religious matter of conducting some kind of ceremony to memorialize your LAP commitment. Marriage licenses are an obsolete impediment to true equality for all Americans.

 

Another court has found DOMA unconstitutional:
http://abcnews.go.com/blogs/politics/2012/02/federal-judge-in-california-strikes-down-key-provision-of-doma/

 

Bush appointed judges.. thats how you know they're wrong.

This really isn't the basis I'd like to see DOMA go by, but I'll take what I can get on it.

 

Jabba, if that happened I would join the National Organization for Marriage just to prevent ending up in something called Liebenschnipenschappenschneitzel. Or whatever it was you just unleashed at us.

 

Liebenschnipenschappenschneitzel is another word. Loosely translated, it means "sheep liver pie," a delicacy in my wife's home province.

 

Does anyone know why it is now being considered unconstitutional? What has changed?

Was everybody drunk when they signed it into law?

 

Bill Clinton signed DOMA into law, so while he might not have been drunk, he may have been distracted by other things

DOMA is now being considered unconstitutional because it has been challenged in the courts. That's the way the law works, you can have a law which might go undisturbed for two decades and is subsequently challenged and declared to be unconstitutional because it is scrutinized by the courts for the first time.

As to why it has been declared unconstitutional, in a nutshell, the Federal Court found that DOMA violates the right to equal protection of the law under the Due Process Clause of the Fifth Amendment to the United States Constitution, without any rational basis for that violation.

The decision can be read here:

http://thinkprogress.org/wp-content/uploads/2012/02/doma-opinion.pdf

The decision has been appealed so we'll have to see what the appellate court says.

 

If the apellate court is paying attention to their peers, it'll be found unconstitutional, again. DOMA has not done very well at all in that area, for obvious reasons.

DOMA unconstitutionality

My emphasis.

DOMA is a repulsive law; my initial anticipation of how it would go down in flames came with the repeal of DADT here. That puts potential gay servicemembers who retire or are injured badly enough to be medically retired on a collision course with DOMA; one doesn't need to imagine very long to imagine how the US public would react to news articles about a servicemember missing his legs, or with permanent brain damage, etc. being denied benefits.

 

A law like DOMA goes against the full faith and credit clause by not requiring states to recognize the actions of other states. (Otherwise, someone in California would need only travel to Oregon or Nevada to escape criminal prosecution.)

 

Then why isn't my Virginia CHP (Concealed Handgun Permit) automatically recognized in all 50 states? Why isn't someone admitted to the Virginia Bar automatically allowed to practice law in all 50 states? Why aren't driver's licenses automatically recognized in all 50 states (it actually required an interstate compact, which not all states have signed)? Why isn't a doctor or CPA (or some other profession) licensed in Virginia automatically allowed to practice in other states?

For example, my Virginia CHP is a judicial act, issued by a circuit court of the Commonwealth of Virginia (signed by the clerk of the court). It is as much of a judgement as any other judicial act. And yet, if I go a few miles north of my home into Maryland, they aren't required to recognize it.

If Virginia should be required to recognize Maryland's same-sex marriage licenses because they are issued by a circuit court in Maryland, then why shouldn't Maryland have to recognize my Virginia CHP which was issued by a circuit court in Virginia?

The simple fact is that the full faith and credit clause has never been interpreted to mandate recognition of all judicial actions of other states, especially when those actions represent differences in public policy in the different states (whether it be marriage or firearm related).

Kimball Kinnison

 

Well, a unanimous Supreme Court in 1967 declared that Marriage was a basic civil right.

As far as I know, specifically having a concealed handgun permit, or having a driver's liscense, or practicing law, aren't considered basic civil rights.

I'm sure someone could make a better argument, but that's the first thing I thought of when reading your post.

I've long thought of the state prohibitions of same-sex Marriage as one of the last areas of discrimination based on gender/sex. That's really what the legal issue comes down to: do men and women have equal protection under the law? Are men and women truly, legally-recognized as "equal"? After all, the Constitution states: "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."

Of course men and women have basic biological differences, but that should only impact them under the law where appropriate, using common sense (ex: Men aren't entitled to "maternity" leave, or to birth control pills intended for a woman's biology, or to private rooms to breastfeed children, etc. Women aren't required to have prostate exams, etc). I don't think, and I don't think anyone could successfully argue, that any of those basic biological differences should have any legal impact on which couples are "fit" for marriage. The purpose of Marriage, under the law, is not for sexual procreation. If sexual procreation was the purpose of Marriage under the law, then the law would prohibit many types of marriage that it doesn't currently, and if the law was changed to prohibit those types of marriage too then there would be an overwhelming backlash from the people as well as going against decades of legal precedent from the courts.

 

Except that doesn't make a difference when it comes to the Full Faith and Credit Clause of the Constitution, because under current Supreme Court precedent, same-sex marriage does not fall under the Loving v. Virginia ruling. (See Baker v. Nelson in 1972, which is binding precedent.)

I'm sorry, but that's an old fallacious argument. Your conclusion does not logically follow from your premise, nor from historical facts.

One of the purposes of legal recognition of marriage has always involved procreation. Specifically, marriage creates a presumption of paternity (which was particularly important before DNA testing). While maternity is a relatively easy thing to establish at birth, paternity isn't. Marriage creates the presumption that the mother's husband is the father of her child. (Note, that's a legal presumption that stands until and unless there is evidence to the contrary. It doesn't necessarily mean that he is actually the biological father.)

However, just because marriage laws haven't historically excluded people solely on their procreative ability (which often couldn't be determined one way or the other at the time of marriage anyways) doesn't mean that procreation wasn't a purpose behind legal recognition of marriage. When you craft laws, you tend to craft them for the general case and only create exemptions as needed. The general case of marriage (historically speaking) is between a fertile man and a fertile woman. As fertility normally can't be determined in advance (and there are recorded cases of elderly men and women procreating), the presumption is that an individual is fertile.

There are valid arguments for same-sex marriage, but this argument here isn't one of them.

I will remind everyone that while I oppose same-sex marriage being imposed through judicial rulings, I have no problem with it when it is instituted through the legislative process. My primary opposition is based on the limitations of judicial power, not in opposition to homosexuality. (You will note that I haven't said anything in opposition to how it has been instituted in Maryland or Washington recently.)

Kimball Kinnison

 

Does that case really allow states to not recognize marriages from other states, which is what we're talking about when arguing if that section of DOMA is constitutional or not? Same-sex marriage wasn't even a real isssue in 1972, it was theoretical since no state would legalize it for decades to come, and this case was just going with the conventional thinking of the time. Baker v Nelson doesn't seem to have been about the full faith and credit clause.

Let's put this Baker case in perspective, too. It was in 1972 (the Supreme Court officially dismissed it, but that let the lower court ruling stant). In 1984, over a decade later, in Bowers v Hardwick, the Supreme Court ruled states are allowed to ban oral sex between two men in the privacy of their homes. In 2004, in Lawrence v Texas, the Bowers case was overturned.

With these new key facts, as well as any application of the "full faith and credit" clause no longer being hypothetical but also practical since several states have legalized same-sex marriage within the last decade, I think the Supreme Court would face a substantial federal question.



And as I just argued, which you didn't comment on, I think the deeper issue is: aremen and women are truly considered equal in America? Do men and women have equal protection under the law of the United States? Marriage is established, by precedent, as a basic civil right. Same-sex marriage is now a substantial federal question, application of the full faith and credit clause is now in question, and the Supreme Court has also overturned precedent and set a new one when they ruled laws which classify consensual, adult homosexual intercourse as illegal sodomy violated the privacy and liberty of adults to engage in private intimate conduct under the 14th Amendment. The ground has shifted in favor of the argument I'm making.

There is no reason why the crude and basic biological differences between men and women should have any legal impact on which couples are "fit" for Marriage. Yes, marriage can be used as an indicator of presumption of paternity. That's not saying that Marriage should be legally interpreted as requiring its purpose to be sexual procreation. (By the way, same-sex couples can still have biological children of one parent, or they can both adopt, that's why I'm saying "sexual procreation").

Where in the law does it say that sexual procreation is the purpose, or any purpose, of marriage? As you seem to admit, historically, procreative ability hasn't been a requirement for marriage. In the old, old days marriage wasn't confirmed by the first pregnancy, but by the first act of sex. You write: "When you craft laws, you tend to craft them for the general case and only create exemptions as needed." But when has the law ever created exemptions from marriage based on the procreative ability of individuals? It could have been easy enough, even in the old days, to ban post-menopausal women from marrying anyone. We don't require fertility tests today, or even a vow to have children since many married couples vow to never have children even if they are young and able. I don't know how you can argue that the purpose of Marriage, under current law, is for sexual procreation. You argue about generalities and presumptions, about crafting exemptions as needed, but despite the knowledge that many straight couple don't use marriage for sexual procreation... that knowledge hasn't spurred exemptions that forbid people from marrying that don't agree with this so-called purpose of Marriage. If the law was changed to take that into account, as I said, it wouldn't go over well.

Marriage is a civil right. There should not be discrimination im Marriage that's based on sex; men and women should have equal protection under the law in this area. There is no reason not too; the usual reason not too, the idea that the purpse of marriage is for sexual procreation, just doesn't hold up.

Kimball, you know I respect you and your views. I hope that always comes across clear. And I also prefer that same-sex marriage shou

 

I don't have much time to post, so I'm not going to be able to answer everything.

The key in Baker is that the Supreme Court took cert for the case and then ruled that it was dismissed for lack of a federal issue. This ruling was made after Loving v. Virginia, which means that while there is a federal issue at stake in the denial of interracial marriages (Equal Protection), under current binding Supreme Court precedent, there is no federal issue involved with denial of same-sex marriage. That makes it a matter purely for the states, and therefore a matter of state policy, which means that it isn't covered by the Full Faith and Credit Clause.

Additionally, individual states are still allowed to set the criteria for what marriages they will recognize. For example, DC recognizes common law marriages, while Virginia does not. Even if you were considered legally married in DC because you were living together in a common law marriage, once you cross the river into Virginia, you are not considered legally married.

Here you are missing a crucial point about the law. The law doesn't have to state the why behind a statute. It only has to state what the statute is.

For example, Virginia's law on marriage states that you cannot marry someone of closer relationship than a cousin, but nowhere does it say why it places such a prohibition. Similarly (to use a law that was just repealed in Virginia), Virginia limits purchases of handguns to 1 every 30 days (with some exceptions). Nowhere in the text of that law will you find any explanation of why they passed it, nor will you find in the repeal any explanation of why either law was passed. All you get is a statement of what the criteria for the actual law is.

Your argument there is simply flawed and invalid because you based it on a faulty premise (that laws have to state what their purpose is).

Kimball Kinnison

 

Kimball, I'm short on time too, my graduate class starts in about a half hour. I'm actually looking at state bills for a project in my Administrative Law class, so I can say that... while there may not be a specific requirement or formula... most bills provide some sort of reasoning or intention. If procreation is not stated in any law as the purpose of marriage, then even if that is what its authors intended, it's not a part of the law and can't seriously be considered by the courts. I doubt the courts would see procreation as a valid purpose for marriage anyways, without drastically changing who is eligible for marriage and overturning precedents. You kind of hit a dead end in your own argument.

Yes, I know the Baker case was dismissed for lack of a federal issue. And I spent paragraphs explaining how that's not the case anymore. That case didn't deal with same-sex marriages already legalized in several states, and the full faith and credit clause of the Constitution. A Decade later, to reflect the thinking of the time, the Supreme Court ruled that state bans on homosexual sex are constitutional... that's now been overturned. The ground has considerably shifted since 1972. It's been 40 years. It hasn't been overturned yet, but I have every reason to believe that if a case regarding that section of DOMA went through the federal court system then the Supreme Court would decide it is now a substantial federal question. The groundwork for a change has been laid, or is being laid. Common law isn't written in stone, no law of man is written in stone. If you want me to elaborate on this further, I know I'm rushing through this right now, just see my comments in the last couple posts.

 

I don't think same-sex marriage is the same as you having a lethal weapon hidden somewhere. Cello case? Since we're hitting these things at the height of their clichédom.

Just kidding. But IIRC, you can be convicted of a felony in states where that doesn't disqualify you from voting...and vote in states where it does. (This is also a political move.) I know from the "have you been convicted of a felony" section of every job application I've ever filled out ever that it can't be used against you if the state says it can't.

 

That's a point Ive made on this topic for years. The state should have no business determining how consenting adults enter into marriage or partnership arrangements.

It's amazing how many things we turn over to government.

 

Just wanted to tell you guys about this little ditty. I was watching it on the news this morning and when they spoke about "family values", I had to think for a second to remember what country I was in.

It's atypical, and it's from Queensland (which we call the Deep North at times), but even election ads aren't this extreme.

And FTR, gay marriage here isn't an issue in the same way it is in other places, like the US.