The Legality of homo/bi/transsexuality and Marriage

Doing something just for the sake of it is never the right answer. However, I believe in this case, progress for equality's sake is the right answer.

 

Who says it has anything to do with religion?


There's no real secular reason that cannot be disputed. So the only answer must remain in the person's religion. That's how I see it anyhow.



I just want to know why progress for progress's sake is always the right answer.


Fear progress?

 

Kuna, thanks for your reply yesterday. I appreciate that you have made some thoughtful arguments that deserve a response. It's also good for me to be challenged to state what I mean clearly enough to be understood well; otherwise, whether we finally agree or not, I've failed I have to head out for the evening, but I'll try to respond later.

One quick note for people: Natural law is NOT "survival of the fittest" - that is a theory about the mechanism by which evolution occurs. Natural law is a bit harder to explain, but it has a very long and distinguished history - and a definite place in American law, from Jefferson to Lincoln to King. This is the way I described it for my Supreme Court litigation seminar last month - the articles referenced do a better job than I do, but it was the best I could do in the space I had.

Natural law is a difficult subject to define, not least because the people who have developed it, have defined it differently through the ages. Classical natural law, first expounded by the likes of Plato, Aristotle, and Cicero, recognizes the existence of laws, discernable by human reason and study of the nature of man, which exist prior to the state. Kirk A. Kennedy, Reaffirming the Natural Law Jurisprudence of Justice Thomas, 9 Regent U. L. Rev. 33, 41 (1997). Written laws may comport with or contradict the natural law; but written laws which contradict it are unjust and void. Over one thousand years later, St. Thomas Aquinas brilliantly articulated the Christian view of the Greeks? natural law, concluding in part that it is the only effective check on the state and civil law. Civil law may complement and embody natural law, but unless natural law exists independent of enacted law, then individuals have no inherent rights but only those granted by the state: a situation ripe for abuse. Thus, natural laws protect citizens from the state. Id., at 43. Enlightenment philosophers John Locke and Thomas Jefferson shifted slightly this conception of natural law into one emphasizing individual natural rights. These rights were rationally deducible and part of a higher law, and promoted individual and societal virtue; and these found expression in the famous opening lines of the Declaration of Independence. Id., at 44. ?There is ample historical evidence that the Declaration?s natural law principles . . . concerning the existence of self-evident truths and inalienable rights that are immutable and conferred upon man by God, predominated in the thinking of the Framers.? Id., at 45-46. Natural law principles were then incorporated into the Constitution, id., and occupied a settled place in American jurisprudence and law at least until the turn of the century (from Justice Chase to Justice Story), most notably with Abraham Lincoln?s recourse to the Declaration?s principles as part of his justification for freeing the slaves.

Natural law is opposed to the predominant realist theory of modern times, that of legal positivism. Positivism, espoused most notably by Oliver Wendell Holmes, holds that there is no objective truth independent of positively enacted laws. Rights therefore derive from will (enactment of law, or judicial statements of what the law should be) over reason (statements of what the law is). Kennedy, at 48; John S. Baker, Natural Law and Justice Thomas, 12 Regent U. L. Rev. 471, 496 (1999). ?ome so-called versions of ?natural law? which give primacy to the will, notably in manufacturing new ?rights,? are actually forms of positivism based on unwritten sources of law.? Baker, at 496. Traditional natural law actually cannot be used to divine new ?rights? or engage in judicial activism, since by its terms it is confined to principles (written or unwritten) consistent with natural law or natural rights. It is also confined to respecting principles, such as separation of powers, enacted into law (since natural law recognizes that civil law derives legitimacy from consent of the governed). Posit

 

Yes, but what are you basing this 'natural law' on? What a bunch of long dead church fathers thought? What seems natural to you?

 

Reason and study of the nature of man, Saint. Why do you persist in saying I only base this on your caricature of my religion? Cicero, Plato, Aristotle, Lincoln, Locke, Jefferson and King weren't Catholic, and most of them weren't even Christian. Please at least read the explanation.

 

Cicero, Plato, Aristotle, Lincoln, Locke, Jefferson and King weren't Catholic

Yes, but they're dead, and thus they do not know of the societal structure that we have now. If they had, I'm sure their views would be different. Didn't Plato have male lovers?

 

I think Aristotle did. And neither Jefferson nor King were faithful to their wives.

 

Nice models of natural law those people are.

 

*sigh*

FID, why bother studying history, ever? Do you *really* believe nothing has any validity unless it's been said since 1982, by someone currently still alive? If you do, I can't talk to you about this subject. But that's an unbelievably limited viewpoint to hold.

I believe you actually do accept the idea of natural law on some things, even if you don't call it that. Try this:

Do you believe slavery is wrong? Do you believe it was wrong even when the laws said it was okay? Do you believe it would be wrong today even if there was a law passed saying it was all right? Do you think it would be okay if people didn't really mind being slaves - the "happy slave" theory - or would that person still have a right not to be a slave?

Or do you believe that the only way we have a right not to be enslaved, is because the law currently says we have that right - but it would change if there happened to be a new law enacting slavery again?

If you think that slavery is wrong in all circumstances, regardless of whether the law at the time says it's illegal, then you are appealing to a higher principle - the natural right of people not to be enslaved.

If you accept this principle in this context, you at least partially concede the validity of natural law.

Now, I apply the concept also to the correct contexts for sex, because it is an action that has individual and social consequences, and I think that according to the natural order of things (looking at biology, societies and cultures across history, sociology, and anthropology), sex is best reserved for married couples, with the reproductive act. Homosexual acts are contrary to this order. Even if they shouldn't be illegal, we shouldn't redefine marriage to accommodate them.

 

If you think that slavery is wrong in all circumstances, regardless of whether the law at the time says it's illegal, then you are appealing to a higher principle - the natural right of people not to be enslaved.

But if you're basing that on the philosophy that all men have equal right to life, liberty, and the pursuit of happiness, you can't use the same basis for forbidding homosexual activity, or even marriage (if you allow/endorse/facilitate it for heterosexuals).


I think that according to the natural order of things (looking at biology, societies and cultures across history, sociology, and anthropology), sex is best reserved for married couples, with the reproductive act.

That is most certainly not demonstrated across all cultures, nor is the definition of marriage the same in all.

 

FID, why bother studying history, ever? Do you *really* believe nothing has any validity unless it's been said since 1982, by someone currently still alive? If you do, I can't talk to you about this subject. But that's an unbelievably limited viewpoint to hold.


HAHAHAHA!!!! I'd say something, but I'd get banned. Something along the lines of only a moron...

At any rate, I don't believe history that goes back to the golden age of Greece has any validity. Especially from hypocrites, that weren't faithful or followed what they preached. I study history very much thank you, it's an easy way to guage what mistakes we're continuing to follow and which we're not. But in no way do I long for a day to go back to an age where we divide each other and discriminate on a whim. I think there's lessons to be learned from history, but applying them to today's society isn't progress and it isn't reasonable.

 

Slavery quite obviously hurts people. Sex between consenting adults does not. Now, you may think that through some convolution of events me sticking my penis in another guy's bum is gonna bring about the downfall of society, but it seems to me you've already got your mind made up and are desperately trying to find some logical validation for it.

But see, you wouldn't have to come up with a logical reason for it if you'd just let your morals govern your actions. But you want to make everyone else follow them, so you try to come up with some reason they should be law. But it just ain't there.

Why do you care? You can abstain from homosexual sex and sex before marriage and oral sex and anything else you want. Hell, you can even teach your kids what you believe. But when you try to put it into law, that's when you cross the boundary from following your beliefs, to trying to make everyone else follow your beliefs. That's when you go from being the Christian, to being the Roman.

 

I'd be interested to hear- since we're talking about philosophy- where does anyone get the idea that the goodness of sexual behavior is defined by consent between adults?

How would you define an adult? Laws vary from state to state and country to country, so how do begin to define that? Are there rational grounds to define a standard?

Also, what goodness comes out of total sexual freedom? Are there any negatives?

Are standards obselete in this society?

Will there be utopia after homosexuals are allowed to marry? If not, what follows this "progress" in society?

 

It's not so much that it's good, but that it's not bad enough to justify government interference.


Small government, you dig?

 

So enacting a program of government benefits before unheard of in the history of this country is "small government"?

 

You mean all those cushy benefits straight people when they marry?

Like I said, take government out of marriage completely. Would you be cool with that?

 

I'd be interested to hear- since we're talking about philosophy- where does anyone get the idea that the goodness of sexual behavior is defined by consent between adults?

From the idea that all adults, unless they have committed a crime (which homosexual behavior is not a crime unless it is used to rape someone), should be considered equally capable of making their own decisions as long as those decisions don't hurt anyone else.

I'll respond with a question: Where does anyone get the idea that they have the right to tell other people what to do or what not to do in their own bedrooms when the behavior is not hurting anyone else?

How would you define an adult? Laws vary from state to state and country to country, so how do begin to define that? Are there rational grounds to define a standard?

I'd be satisfied with either age 16 or 18.

Also, what goodness comes out of total sexual freedom? Are there any negatives?

The goodness that comes is that we stop treating adults like children, or worse, like people who are somehow "dirty" or inferior because they were born with different desires than other people. And no, there are no negatives.

Are standards obselete in this society?

I don't think the standards of one religion should be used to govern the whole of society.

The standard of "Harm none" is not obselete. I do hope that the standard of "You must fit into a certain mold in order to be considered acceptable" is obselete.

Will there be utopia after homosexuals are allowed to marry? If not, what follows this "progress" in society?

As best as I can think of right now after only half a cup of coffee, there are no other groups of people who are harming no one and yet are having their right to equality denied. If there is such a group, they will be next. But I can't think of one.

And there will never be "utopia".

 

Thank God we live in a country that can update its laws, otherwise birth control might still be illegal, it might still be legal for a man to rape his wife or beat her on the courthouse steps on Sundays with a rod the size of his thumb, and minimum wage might still be $3.35 an hour (as it was when I started working).

Actually, it is legally impossible for a man to rape his wife. Rape is defined by law as a man forcing a woman who is not his wife to have sex with him. The rest of what you're saying I agree with though.

Religion is just as much behavior oriented as sexuality. It's not just believing there is a God, that's just faith. Religion involves a dogmatic set of rules, beliefs, and practices. You don't see us passing laws against Jews that say "It's okay to believe what you believe, we're just making it illegal to, for example, circumcise your sons."

 

Rape is defined by law as a man forcing a woman who is not his wife to have sex with him.

Sounds like the law needs to update itself.

 

You don't see us passing laws against Jews that say "It's okay to believe what you believe, we're just making it illegal to, for example, circumcise your sons

Although there are groups campaigning for that.

 

*Slightly off topic clarification*

I don't know what state you live in, but somebody needs to go check their local laws:

Actually, it is legally impossible for a man to rape his wife. Rape is defined by law as a man forcing a woman who is not his wife to have sex with him.

This statement is false in just about every state that I know of, although I guess it could apply to a small minority..

First off, most states don't recognize the term "rape" in a legal sense..(although, again, there may be a small minority that still do)

The offical title is "criminal sexual assault/abuse" (depending on the circumstance..)

Secondly, it doesn't matter what relationship the accused-victim share..

A wife can press charges against her husband if his actions fit the requirements of the crime, or vice versa..sexual assault isn't limited to man vs woman..

 

Will there be utopia after homosexuals are allowed to marry? If not, what follows this "progress" in society?

Giving rights to people who did nothing wrong in the first place?

 

That is most certainly not demonstrated across all cultures, nor is the definition of marriage the same in all.

Marriage has been slightly different throughout the ages and across cultures, but fundamentally the same and between men and women, with weddings often ceremonial affairs and fertility prized. Look at ancient or modern traditions of China, India, Japan, Pacific islands, American Indians, Greece, Rome, Egypt, the Hebrews, Nigeria, the Incans, the Aztecs, the Mayans, Inuit, Mongolia, Mesopotamia, the Celts, Babylonia, Islam, Vietnam, Hmong, Russia and Europe. Marriage has certainly been customary and ceremonial in this country for the last 400 years. Basically, there's no way to argue marriage hasn't been between men and women, been oriented toward children, and constituted a central part of civilization, for most of recorded history across world civilizations.

Human nature is also fundamentally the same across all cultures and all times, though somewhat different social customs have governed. Else why do we study and find relevant Homer, Sophocles, Shakespeare, Sun-Tzu, Dostoyevsky? Jealousy, greed, nobility, courage, love, vengeance, betrayal, shame, honor - all of these parts of human nature are recognizable and familiar across time and history.

If you want to remake the central institution of society and even civilization, there should be a pretty good reason to deviate from the norm, to accommodate the sexual proclivities of a few. I'm not saying homosexual behavior should be illegal; I am saying it's unnatural for marriage to encompass homosexual unions. And it's okay for us to conclude this based on history and the natural law, because people aren't, fundamentally, any different today than they have ever been.

 

Basically, there's no way to argue marriage hasn't been between men and women, been oriented toward children, and constituted a central part of civilization, for most of recorded history across world civilizations.

It really doesn't matter to me what marriage has been oriented towards in the past, for several reasons. One, in the past, women were considered the property of their husbands and had no rights of their own. Two, in the past, marriage was not done based on whether or not two people loved each other, but was done so that the man could gain a wife to bear his children and keep his house, and also a dowry from her father. Three, when marriage was geared towards children, there were not six billion people on the Earth, nor were there Americans draining the Earth of her precious resources.

There is no reason today to make those of us who marry although we don't want children to feel like freaks, or like we're "sinful". There is also no reason not to allow two unrelated adults who love each other to marry, no matter what gender they are.

If you want to remake the central institution of society and even civilization, there should be a pretty good reason to deviate from the norm, to accommodate the sexual proclivities of a few.

Giving equal rights to people who are doing nothing wrong is a pretty good reason.

 

Slavery quite obviously hurts people. Sex between consenting adults does not.

That's not "quite obvious" with regard to sex. 70% of all African-American babies are born to unwed mothers in this country - 45% of Hispanics, 33% of all children. Assuming almost all of that sex was consensual, all of those children are hurt. There are emotional and physical consequences to sex, even if between consenting adults. HIV/AIDS disproportionately has struck gay men in this country; according to the US government this week syphilis (!) is on the rise among gay men; STD's are rampant, even epidemic, among gays and straights - and transmitted even though most sex may be consensual. Domestic violence occurs at higher rates among homosexual couples. Gonorrhea, hepatitis and HPV are more common among gay men and women. Alcohol abuse and depression are more common among gay men and women. Promiscuity is common even in "committed" gay relationships. All of these things negatively impact public health and society. And most of it is related to consensual sex.

Now, you may think that through some convolution of events me sticking my penis in another guy's bum is gonna bring about the downfall of society, but it seems to me you've already got your mind made up and are desperately trying to find some logical validation for it.

It's not desperate, it's perfectly rational, and it's not post-hoc, it follows from thousands of years of rational understanding about the moral order of society with regards to sex.


You ask me, why do I care? Why can't I let it alone? Well, I would be perfectly happy to let you do your own thing: but homosexual activists won't allow me the option of not caring. They want to redefine the meaning of marriage (see Lawrence and Goodridge). They want to teach "fisting" in schools and actively advocate homosexual behavior to my children in my schools. They want to raise children. They want to shut down Christian student groups and voices in schools simply for believing homosexual conduct is not all that's good and holy in the world. They want to take custody away from parents on the basis that "homophobia" (i.e., orthodox Christian beliefs) might be taught.

I'd ignore homosexual conduct. But apparently, I have to wholeheartedly embrace and approve it as well, and teach my children it's fantastic.

I refuse.