Nice job presenting the clips, by Mark Joseph Stern at Slate. And I'm saying that based on listening to the entire thing myself. I summarized it last night like this:
It's lively, and the government lawyers are on the run, but repeatedly cornered by the simple and predictable demand to articulate an interest served by excluding gay people from marriage. All of the judges clearly reject tradition as the interest, and the idea of leaving it to the legislature is repeatedly scoffed at as merely getting us back to the need to at least show some legitimate governmental interest. There is a great deal of attention to the welfare of children, with the government lawyers stressing the capacity of heterosexuals to produce children and the value of channeling this phenomenon into stable relationships for the sake of the children and the judges unable to see the reason to exclude gay people, who may also have children, especially given that the states in these cases both allow gay people to adopt. Why do the states want to hurt those kids? I lost track of the number of times the government lawyers were stymied by that question.
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136 comments:
The whole issue is not a matter of rights or practicalities but of symbols. Both sides are perfectly aware of this. This subject cannot be argued on the terms that Posner insists on. This is being forced, by the financial and social elite, on the humble and traditional people as a symbol of domination over us.
The goal is to make us stop fighting a comprehensive cultural change intended to transfer power permanently from the old American middle class to the new aristocracy.
What year did the 34th state stop forbidding gays from adoption? That would be the year to say that permitting only one man, one woman marriage became unconstitutional under the evolving constitution theory of judicial interpretation.
@buwaya You haven't listened to the argument, have you? Try, and see if you have a way to answer the questions asked, many of which refer to the case law that binds the judges. All laws require at least a legitimate governmental interest to which they are rationally related. On that foundation, see if you can stand up to the challenge. It's easy enough to type out verbiage, as you have done, but facing serious questions is another matter entirely. The lawyers for Wisconsin and Indiana couldn't do it.
Thank you sir, may I have another?
All laws require at least a legitimate governmental interest to which they are rationally related.
How about carrying out the will of the people?
Every one of these cases has seen judges overruling the will of the people in a manner that would have been unthinkable just twenty years ago.
The republic is dying......
@buwaya You haven't listened to the argument, have you? Try, and see if you have a way to answer the questions asked, many of which refer to the case law that binds the judges. All laws require at least a legitimate governmental interest to which they are rationally related. On that foundation, see if you can stand up to the challenge. It's easy enough to type out verbiage, as you have done, but facing serious questions is another matter entirely. The lawyers for Wisconsin and Indiana couldn't do it."
The rational argument works as well in the reverse.
"Thousands of gay couples in both Indiana and Wisconsin are raising children, which the state permits them to do. Given this reality, Posner asks Indiana Solicitor General Thomas Fisher, isn’t allowing gay marriage “better for the psychological health or the welfare” of gay people’s kids? Allowing same-sex parents to get married, after all, would bring them and their children a plethora of benefits. "
Thousands of polygamous unions are raising children. Given this reality....
"Posner points out that Indiana allows both sterile people and first cousins (over the age of 65) to marry. If marriage is all about biological reproduction, Posner wonders, aren’t these policies irrational? Fisher errs at first, claiming, “We don’t allow incest.” When corrected, he founders."
But we don't allow brothers and sisters to marry. So is Posner saying we should? And marriage is there to enforce the mother father structure, Not to guarantee that those who are in such a relationship MUST have kids. Further, sterility is not necessarily an end to the ability to have kids.
"“Isn’t it much better for kids to be adopted? But if you allow same-sex marriage, you’re going to have more adopters, right? … You should be wanting to enlist people as adopters.”
So too if we legalize incestual marriages. So too if we legalize polygamous marriages. Etc etc.
"Samuelson attempts to argue that Wisconsin’s tradition of allowing only opposite-sex marriage is a rational basis for barring same-sex couples from the institution. Posner sinks in his claws, drawing painful, direct parallels between the current case and Loving v. Virginia. The racists who opposed interracial marriage, Posner notes, “make the same arguments you would make.”
False comparison. Because ending interracial marriage didn't change the structure of marriage. Unlike gay marriage.So its not a valid comparison.
Sigh. This is just the usual bunch of arguments from people who are for gay marriage. PLowing the same ground. Same arguments.
Professor, the fact is that the whole structure in case law of "legitimate governmental interest" has no basis in our written Constitution.
The Constitution was written in the plain language of its day, still intelligible to most ordinary educated people. It was and remains a unique accomplishment on the planet -- a document that spells out what your government can do, what powers are given to what parts of the government, and how the people who compose those parts of the government are selected.
We're long past that now, and it's sad. There's nothing in that document that precludes the states from passing laws based purely on morality. Nor is there anything in history to suggest that, because it was routine up to that point for governments at all levels to pass such laws.
In the meantime, we've never amended the Constitution to prohibit morality laws. It just kinda happened. The "legitimate governmental interest" standard was constructed by a series of wild fantastical leaps from the Due Process clause and, even more fantastically, the Equal Protection clause.
I **UNDERSTAND** it's "settled law" amongst lawyers. But it was never, ever, ever, ever enacted or reviewed by the People, and it's absolutely not in the People's written laws. It's just made up.
Due Process and (even more laughably) Equal Protection somehow, imaginatively, give rise to Rational Basis; then we proceed from "Rational" to the "legitimate governmental interest" idea. Even now we're still able to pass morality-based laws, unless you think that imposing morality on the people is not a legitimate governmental interest (despite the fact that it was a common thing for all governments to do when ours was founded, and was not precluded in our written Constitution).
tl/dr: I know what Rational Basis is. It was made up out of whole cloth by lawyers. And now, you've got more lawyers laughing their fucking heads off at the idea that morality can be the basis of a law.
It's deeply sick, because it did not come from the People.
This would be interesting to listen to if the links from the article still went to the relevant audio at Slate but they don't.
Two points:
1. The government should be out of the marriage business.
2. What's special about 2? Why not 3 or more in one union? Why can't one person be marriage to two other people at the same time?
Here's an even shorter way to say it. Show me where in the Constitution it says "laws must have a legitimate governmental interest."
It doesn't exist. Instead, you'll point at the parts that say that the People cannot be denied Due Process or the Equal Protection of the Laws. The latter is just ridiculous -- Equal Protection means that all citizens get the same treatment. A snarky way of putting it is that the law, in its majesty, prohibits rich and poor alike from begging for bread; but in fact that's what Equal Protection means.
Due Process is a little more opaque, but at no point in history at the time that was written did it mean that the People get to critique the REASON the laws are passed. It means that they have certain protections when the government wants to seize their life or property, or compel them to do things.
Here's the thing: if the lawyers who made up "legitimate governmental interest" wanted to have that be the nation's supreme law, why didn't they pass a Legitimate Governmental Interest amendment? It's "constitutional law" right? How did it come to pass that "constitutional law" includes things that have no basis in the Constitution? If you want that document to change, there are procedures spelled out.
The lawyers and judges were dealing with the issue within a very narrow framework of law. The one side has established the rules under which terms they cannot lose.
It is like using law to resolve problems in physics.
It does not change the reality of the matter.
There is, in fact, only one place in the whole damn document where it restricts what *kind* of laws may be passed.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
I'm sure you're just dripping with contempt for the kind of rubes like myself who actually read our founding document and expect it to bind the government. I see the right of assembly being crushed, for example, all over the place, including but not limited to Ferguson. The laws that enable the police to do that are illegal on their face; but instead, we're striking down morality-based laws on the basis of...of what? What beautiful text proscribes the government from passing such laws? There is none. The People's supreme law is simply ignored by their rulers.
And you think that's hilarious.
The homosexual activists have demanded that government sanctify their deviant behavior. To normalize it, you have to concurrently stigmatize and devalue traditional arrangements.
Can states favor married couples over singles in adoptions? Heterosexual singles over gay singles?
I won't make it through all the audio, but Posner comes across as an arrogant non-listener. He interrupts not to clarify, but to get back to his own point, the one he wants to make, the one he's thinking of.
Not to delve down into the arguments, but to get back to his point.
Could he shut his trap once in a while?
Sounds like someone should retire.
All laws require at least a legitimate governmental interest to which they are rationally related.
The rational basis test is illegitmate. You can find a rational basis for anything.
The principle involved is that government coercion has to leave everybody better off. It solves the free-rider problem.
This takes away the institution of marriage, so in principle is illegitimate. You can therefore, if you have all the case law, track it back to the original mistake. Which as I say is the invention of rational basis.
Rational basis does not consider that it has to leave everybody better off. It's just stuff you'd like to do, over objections if necessary.
The common man may not know the principle but he intuits it, and sees that the legal system is illegitimate now.
How is it going to function when it's mostly in disrepute, no matter how many victories on points are scored over the common man.
I'd favor adoption by civil unions, myself. Just don't call it marriage. It isn't.
rhhardin that sounds great, but where in the Constitution does it call for "solving the free-rider problem" by ensuring that "government coercion has to leave everyone better off?"
It's a nice idea, I suppose, but a bit Utopian, in the literal sense that it's never been done anywhere. But the Constitution doesn't say "y'all must have a good government."
I guess you could say that's part of the animating spirit behind the penumbras, but that way lies...well, this brutal place we live now.
The child can show preference/discriminate in the type of family constellation. I was reviewing the MARE resource adoption photo profiles here in Massachusetts. Some children desire 'a strong male' as one of the parents, but at least one female. Two men... are commonly 'discriminated against and families with young children.
But just a friendly reminder-- a Circuit Court of Appeals isn't Columbia. You don't need to convert everyone who practices before you to utilitarianism. Don't be the gunner everyone hates before oral arguments even start.
Stereotypes of mother = nurture and father = structure is very much a reality for children.
Off the top of my head I'd be wondering whether the respective lawyers' hearts are in the right place -- or are they deliberately trying to lose?
You made a similar argument against the prosecutor in the Trayvon Martin shooting.
OK, now I've sampled the lot.
Posner comes across even worse. I thought I was on his side!
He doesn't listen, he doesn't let the people before him finish even a fraction of a sentence, he pretends ignorance...
Imagine this guy as philosopher-king of America.
Perhaps I am going beyond our hosts range of interests, but I am not a lawyer and certainly not an American lawyer. And not, other than being a US resident, an American. My experience with the law, in the US and other countries, is that it is everywhere an arbitrary process that claims to be principled but in fact is not. It is a venue for power struggles at best, where the rules aren't too badly rigged, and an instrument of oppression nearly everywhere.
That is why I don't see the point in tracking all the arguments and maneuverings here. It is like explaining the internal functions of a gun, that, if one presses the trigger, will invariably fire a bullet. The important questions are who is firing the gun, at whom, and for what reason.
The mechanism of the gun and the tedious descriptions of all the greasy parts all working as expected is irrelevant.
Can we really even discuss the issue anymore? The Slate folks are just mocking. They cannot comprehend a legitimate opposition to normalizing deviant behavior, so they turn to mockery, which works with large segments of the population.
Ann Althouse, who agrees with them, doesn't take well to the mocking as such, so tries to be more rational about it. Only, she puts the cart before the horse by writing:
"Try, and see if you have a way to answer the questions asked, many of which refer to the case law that binds the judges"
As if this is all perfectly legitimate law, and not being made up out of whole cloth. How is it that we've suddenly discovered this right to deviant behavior? Why, according to the likes of Althouse, it's been in the law this whole time!
When the people have had the option to vote against it, they have, but our rulers have decided that we're too stupid to make our own laws and they have to find it in the past for us, as if we were so much more liberal before and wrote into our laws right we never saw until now. Uh huh. Yeah, right.
And you've probably got a bridge to sell me too.
Look, the writing is on the wall. And when we fall, we're going to fall hard. Because we've had it so good for so long now. And when it happens, the Ann Althouses of the world are going to look around and ask, "What happened?" and they just aren't going to see that they did this to us.
Because ending interracial marriage didn't change the structure of marriage.
A lot of talk from the anti-gay marriage side about this – sometimes they say the "definition" of marriage would be changed.
I cannot see how gay marriage in any way destroys straight marriage. There's no elimination – only an adding to.
This is just the usual bunch of arguments from people who are for gay marriage. Plowing the same ground. Same arguments.
Agreed. However, it must be considered against the fact of the same arguments from the anti-gay marriage folks. You "anti" people keep making the same invalid points and we pro-folks naturally respond with answers to them. Those answers do not change with time.
The government should be out of the marriage business.
Fine. Then stop using the government as a weapon against gay marriage.
What's special about 2? Why not 3 or more in one union? Why can't one person be marriage to two other people at the same time?
There's at least one reason that I think polygamy stands no chance of becoming legal. And that is that it removes too many eligibles from the marriage "pool," so to speak. There's the compelling interest for the judges to rule against polygamy.
Realize that the courts are only slightly ahead of public opinion in this matter of gay marriage. The courts reflect a sea change in attitudes toward gay marriage and gays in general. Here's one of the latest polls by a well-known pollster:
http://tinyurl.com/q89d5v6
55% of those polled said same sex marriage should be recognized. Winning referendums against gay marriage does not reflect the will of the people – only the will of angry and frightened voters.
"but facing serious questions is another matter entirely. "
Where you stand depends on where you sit. An old saying. If you are fundamentally in favor of gay marriage because of a family member, the arguments sound one way. If you are a traditional religious person (which I am not) they sound another way.
Personally, I don't care but I still think that gay marriage is a fad among the 2% of the population that is homosexual and 4% related to them and the 30% who think it is culturally important to make this an issue.
There is already some research (not much because it is a taboo subject) showing that the children of such couples are harmed psychologically. As far as I am concerned, kids in foster care are probably better off with a gay couple. Or at least no worse off. For the kids with "turkey baster fathers," they are in deep shit.
The fact that Catholic Charities are banned from adoption in Massachusetts because of opposition to gay couples, this is another form to the current insanity that gave us Obama as president.
It is all part of the meltdown of society in this "Decline and Fall" era of US history.
The reason people can't articulate a rational reason for recognizing heterosexual marriages but not homosexual marriages is simple: there isn't one.
The arguments all boil down to either "we've always done it that way" or "it will ruin hetero marriage by giving it gay cooties or something".
The lawyers sound as if they don't really care or not even convinced about what they are fighting for.
They can't even answer simple questions.
The homo haters have horrible attorneys.
They even laugh about trying.
It's over homo haters.
Move on.
You can still hate the fags.
Indiana allows sterile people and cousins to get married....gross.
Ok. Wait a minute. Something I don't understand here. he is saying that states have already adopted a rule allowing gay couples to adopt, therefore we must allow them to marry so they can cash in on the basket of goodies they supposedly will reap via the formalized institution of marriage? How about we just make adoption by gays illegal again? Doesn't that make the case for allowing the marriages moot?
If I thought that gays really wanted to marry simply for the ability to formalize a lifetime commitment I don't think I would so much care. I suppose there are those out there who do. But that is not why this is happening. The push to legitimize gay marriage and homosexuality is part and parcel of the Left's incessant agenda to destroy the traditional basis of western civilization. those gays didn't run that baker out of business in Oklahoma -or wherever because they were so damned offended. Hell people offend me every day and I don't fricken sue them over it. The baker was targeted to intimidate the public into accepting something that they are really not so set on agreeing with. Just like the jihad against the "N" word a few years ago, they are winning arguments through rank intimidation. It is disgusting.
Evil. and just plain wrong.
My experience with the law, in the US and other countries, is that it is everywhere an arbitrary process that claims to be principled but in fact is not. It is a venue for power struggles at best, where the rules aren't too badly rigged, and an instrument of oppression nearly everywhere.
Wow!! I am not alone!!
@Michael K, Revenant -- forget for the moment about marriage, homosexuality, whatever, and pretend that the law prohibited walking around bareheaded. Men, women, whatever. Turbans, hats, caps, headscarves, yarmulkes, all good.
Why? Because we think bareheadedness is immoral.
Now, the argument is, you must articulate a "legitimate governmental interest." Why? Screw your requirement. It's not in the law. It's not in the Constitution. It was just made up based on some other laws that say totally different things.
That's the issue -- laws passed by the People are being struck down for reasons that the People never approved.
"55% of those polled said same sex marriage should be recognized. Winning referendums against gay marriage does not reflect the will of the people – only the will of angry and frightened voters."
So, polling agencies are more accurate than voting? Seriously?
Oh my.
Indiana allows sterile people and cousins to get married....gross.
I want to vote on any of you old straighties who got divorced.
"@Michael K, Revenant -- forget for the moment about marriage, homosexuality, whatever, and pretend that the law prohibited walking around bareheaded. Men, women, whatever. Turbans, hats, caps, headscarves, yarmulkes, all good."
DS, you cannot engage with the likes of Revenant on this issue. Why? Read:
"The reason people can't articulate a rational reason for recognizing heterosexual marriages but not homosexual marriages is simple: there isn't one.
He has already trapped himself in circular reasoning. Those who differ with him have no "rational" reason for doing so.
Therefore, any argument you make falls on deaf ears, because cooties or something.
Althouse said, "All laws require at least a legitimate governmental interest to which they are rationally related"
Since when?
Since Americans became pathologically unable to mind their own F**kin' business?
So we murder and imprison people for life for getting high... and the legitimate governmental interest is these people might not get up and go to work the next day? Work or we'll kill you?
slavery never ended: it just morphed into the company store.
Oh, and if the lawyers from Indiana and Swissconsin couldn't face the serious questions, then they should be fired for being incompetent morons. they didn't do their homework before appearing in a hostile setting.
The bumdunnies.
Marriage, like golf, is for the upper classes.
Then there is no rational basis for marriage. You can have children without marriage. What's the rational basis for a false birth certificate with an individual with no legal access to know their own parents.
Why have paternity of a child be assumed by the marital status of mother?
McCullough, ouch how true.
The plaintiffs lawyers are not government workers. The quality of advocacy shows.
"Withering bench slaps" sounds like sauna room towel snapping.
Is there another judge in the 7th Circuit on this case Althouse? Do their opinions matter?
Titus: "You can still hate the fags."
We know the islamists do.
And they kill them to.
And the lefties loooooove their islamist pals.
Logic.
Titus,
I don't know just how sincere you are, which I suppose isn't very.
But frankly your predilections and opinions are parochial. They seem unique to this time and place, and very peculiar, even alien.
In most times and most places the worth of a man (I will not speak for women) was the sum of his obligations - to family, clan, tribe, nation or religion. A man with no obligations was suspect. A man who rejected obligations was a shirker. A man who abandoned obligations was a scoundrel. A man who failed his obligations was tragic or pitiful. One of these obligations is to reproduce, produce decent people as heirs, and carry forward the family name and the hopes and efforts of his ancestors. Your values I really, honestly, completely cannot understand. It is a rejection of all honor and value, in my world. It really cannot work, as a general principle, biologically or socially.
Renee said, "Why have paternity of a child be assumed by the marital status of mother?"
Three reasons:
1. Money
2. Money!
3. MONEY DAMMIT!
If you don't know who the father is, the child has no inheritance from him. (other than genetic)
The almighty state can't dun him for life to support the child.
The child can't hit the pop up for spending money and the car keys on Saturday night!
Silly!
Ann, you are so deeply invested in the game called The Law, that you don't see the game.
http://www.wisconsinfathers.org
"The best parent are both parents."
Father involvment relies on location, the closer to his kids the better. Preferably under the same roof.
There are many laws based on legislative morality choices. Cruelty to animals prohibitions are morality laws.
Try, and see if you have a way to answer the questions asked, many of which refer to the case law that binds the judges. All laws require at least a legitimate governmental interest to which they are rationally related. On that foundation, see if you can stand up to the challenge.
Ann, take your own challenge - justify Jim Crow. Justify incarcerating the Japanese in WW2. Justify thousands of bullshit laws. Jeez, get out of your bubble!
Bob Ellison commented: "Could he shut his trap once in a while?
"Sounds like someone should retire."
Posner has always been the master of catchy meaningless phrases. I've never found his opinions to be very convincing, especially when he tries to craft some economic benefit to the law. There's nothing wrong with doing that, it's just that he seems to be quite bad at economics.
Althouse is blatantly and, frankly, rather obviously and disingenuously ignoring the precedence.
The highest court of the land, has authoritatively stated:
"...we think it may safely be said there never has been a time in any State of the Union when homosexuality has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal. In fact, according as straight or gay marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests."
98 U.S. 145
And most people think marriage is obsolete, so in moral terms they don't care. 'Gay marriage, sure why not. Who gives a sh!t."
Oh wait, I mistyped that previous citation. Replace homosexuality with polygamy, and replace gay marriage with polygamous marriage, and you get the correct text, in which, the first amendment notwithstanding, the SCOTUS drops the hammer on my ancestors with the very argument that Posner and the other so-called rational and precedence-respecting people are now saying is not only utterly invalid, but completely untenable, even laughable.
So maybe you could tell us a bit more about the "case law binding the judges", Althouse.
I think it interesting that the courts have forced homosexual adoption on the states and now are using homosexual adoptions as an excuse to justify homosexual marriage.
It's going to happen, the Harvard and Yale elitists have decreed it. Just a matter of time until they tell us who the boss is again.
But these states allow anonymous sperm/egg donation and surrogacy, so why ban gay adoption if you are already denying children their biological parents. Children lose more rights with sperm/egg donation, then with adoption.
Belligerent Drunk Stand-up Comic says:
So, I was reading an article on gays adopting children... I'll come right out and say it: I'm against it. (sips drink) Stop groaning, stop groaning: I'm against heterosexuals having children, too. This includes White heterosexuals, Black heterosexuals, Asian heterosexuals, Mormons, Catholics, Jews, atheists, amputees, and -- of course -- homosexual heterosexuals; you in the last group know who you are...
(sips drink)
Don't get me wrong: I don't hate children -- I just hate what they inevitably grow up to be. (sips drink) People, we fucked up. We're on the downward slide, we let the idiots win. With each generation we are raising more and more assholes, and then these assholes grow up, vote, and give birth to even more assholes. And heaven forbid if you manage to raise a halfway well-adjusted kid, because you know what is waiting ahead for them in this world? A lifetime of dealing with assholes...
(sips drink)
Now, do not get me wrong: this has nothing to do with intelligence. There are smart assholes, dumb assholes, assholes who are conservative, assholes who are liberal, rich, poor, fat, thin -- you get the picture: the only thing assholes really have in common is the overwhelming need to fuck other people's shit up...
(sips drink)
It comes down to this: assholes just can't leave things alone. THEY. CANNOT. LEAVE. THINGS. ALONE. They always think THEY have the better idea, THEY know how things should be, it is about THEM and by God you're gonna have to put up with it...
(sips drink)
You know what History will say about us? About the richest, most prosperous people to have ever had the luck to walk the Earth? THEY. COULD. NOT. LEAVE. THINGS. ALONE. (sips drink) Given everything and more, they still had the overwhelming NEED to fuck other people's shit up, and they kept fucking other people's shit up until there was nothing left worth fucking up anymore...
(sips drink)
Thank you, you've been a peach...
"With each generation we are raising more and more assholes, and then these assholes grow up, vote, and give birth to even more assholes"
Do you think the free birth control from the HHS mandate will work?
@Renee: You're supposed to laugh at betamax, not ask serious questions from the audience.
Signifying anything and everything but a sound/fury tale told by an ill-credentialed bigot, yet again law worship wins.
You law folks are good, decent people. Really. No need for drink or drug or suicide.
You help folks, way better than Alex in A Clockwork Orange.
You law folks and your law worship are what separates me from my pitchfork, and I thank you and your messiah Obama for it.
chickelit said...
@Renee: You're supposed to laugh at betamax, not ask serious questions from the audience.
I thought Renee had the perfect response. And I sometimes like to answer serious questions: we're all going to die, for example.
Grackle reasoned: There's at least one reason that I think polygamy stands no chance of becoming legal.
This assumes that everyone wants to marry or will marry when statistically, that is no longer the case - especially for men. A surplus of unmarried males (by choice) is balanced by men with multiple wives, so that women are not shorted nuptial bliss. Plural marriages also remove the types who approve of plural marriages from the marriage pool.
If you want to ask a more serious question, Grackle, ask why fewer men are interested in marriage.
Althouse,
"All laws require at least the pretense of a legitimate governmental interest to which they are groundlessly asserted to be rationally related."
FIFY.
A surplus of unmarried males (by choice) is balanced by men with multiple wives..
Should be "A surplus of unmarried males (by choice) could be balanced by men with multiple wives"
Coulda shoulda woulda
We're all going to die, but who will bury the dead? Not every one marries or has children, people don't even have connections to cousins, nieces, and nephews.
Not every one marries or has children, people don't even have connections to cousins, nieces, and nephews.
It's not yet considered irresponsible to die without contingencies, yet it is happening more frequently.
Even best friends can not attend each others funeral.
FYI I don't believe marriage us about your best friend. Sorry, honey I need my BFFs.
Re: "We're all going to die, but who will bury the dead?"
In Vulture World the dead are meant to be left unburied.
Or mummified in their homes, because no one checks in.
55% of those polled said same……
@gackle you do realize that same percentage of those polled were at some point against Obamacare yet that didn't stop the court from upholding it. The only polls that count are elections. If you were consistent in your beliefs about polls you would realize that in most of the states were the question of gay marriage was polled through an election the election result was against it.
So, polling agencies are more accurate than voting? Seriously?
I assume that both are accurate in what they measure.
Legislation may be passed and referendum approved because of factors that may have little to do with actual public opinion throughout the USA. Was public opinion ever 'for' Obamacare before its passage?
But an inaccurate pollster is soon out of business.
Withering bench slaps" sounds like sauna room towel snapping.
Funny.
In Vulture World mummified remains are akin to Fig Newtons.
Or mummified in their homes, because no one checks in.
Or like Miranda's nightmare in "Sex And The City" wherein her face gets eaten by her starving cat before anyone finds her.
History says that populations that fail like this are replaced. Your dead, white Americans, will be buried by your replacements. They are already here. Some of them are my children and relatives.
Maybe its for the best. Survivors are those that want to live.
"see if you can stand up to the challenge."
OK. The argument being proposed, by Judge Posner, is that he can think of measures the State could take, to further its supposed interest, and it is not taking those measures. Therefore, the interest is spurious.
For example, the State claims it wishes to convict and punish murderers, but it allows the accused to have attorneys. This undoubtedly results in some murderers escaping conviction, which clearly proves that the State is not interested in convicting murderers.
The more salient fact is that the State did not invent marriage, any more than it invented families. It found those institutions flourishing, and chose to offer them further encouragement. Whether that was wise is open to question, but if we are to claim that the State cannot favor an institution in and of itself, but must relate that favor to some exterior good, then we invite -- no, demand -- the reductio ad absurdum. The State claims to legislate against murder, because Life is good. But wherein is life good? What interest does life serve? To further what ultimate goal does the State protect the lives of its citizens? Clearly, the laws against murder are simply made out of respect for certain primitive traditions, and we must dispense with them forthwith should anyone find them inconvenient.
Actually, I guess that is the current position of SCOTUS, isn't it.
History says that populations that fail like this are replaced. Your dead, white Americans, will be buried by your replacements. They are already here. Some of them are my children and relatives.
Maybe its for the best. Survivors are those that want to live.
Isn't that a shocker? And here we were all suppose to have most excellent retirements instead of worrying about existential threats.
"I assume that both are accurate in what they measure. "
I assume that where a poll disagrees with an actual vote, the poll is wrong. Even if I agree with the outcome of the poll.
The question I have for proponents of homosexual marriage is this;
Your claim is that the law discriminates against some people, in that it allows heterosexual couples to marry, but not homosexuals. One might also argue that it allows heterosexual couples to marry, but not couples whose only professed mutual interest is in stamp-collecting, or table tennis. Is that not also a great evil? Well, no. A shared interest in table tennis is not an occasion for matrimony.
In short, the claim is that, unlike a game or two of ping-pong, or a book of rare first issues, the relationship between homosexuals is equivalent to that between heterosexuals. And, of course, that anal sodomy has exactly the same moral significance as the act by which human life is created.
Is that really self-evident? To whom?
In Vulture World Beaky Buzzard is a GOD. Popeye, on the other hand, is something you buy in the movie theater and it comes in a bag.
As to the subject at hand, I am supposed to be impressed by judges why exactly? And, more to point, why am I supposed to be impressed by people who are impressed by judges? The former are a necessary evil that we pretend are really wise but are actually lawyers. The latter are just pathetic.
"I want to vote on any of you old straighties who got divorced."
Ha ha ha. So do I.
And, more to point, why am I supposed to be impressed by people who are impressed by judges?
If you don't go soft after receiving a "withering bench slap" you're not with the pogram.
Is Scalia into benching slapping?
Just askin'
Quayle quoted:
""...we think it may safely be said there never has been a time in any State of the Union when homosexuality has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal. In fact, according as straight or gay marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests."
Ever notice that it's those who care the most about marriage are opposed to changing it, while those who have been divorced, or don't ever care to marry, or have never married, or go through strings of spouses, are the ones who say, "Eh, why not let them also be married?"
Hollywood, judges, lawyers and politicians gave us no fault divorce. They gave us marriage without meaning or consequence. Now they want to put this on us and they have the gall to tell us, "Hetrosexuals already messed marriage up so badly, what could homosexuals do to worsen it?"
No. How about YOU messed it up so badly and now you want to put the final nail in the coffin.
It's not going to work out for you in the long run. It never does.
People with mental disorders are still going to kill themselves and blame Christians for calling what they do sin.
Ever notice how much a homosexual smiles in public? They remind me of bipolar people. They seem so happy, then they go home and kill themselves.
Only, with bipolar people, Christians don't get the blame, instead, their mental disorder does.
At one time, homosexuality was a mental disorder.
Maybe we should be helping them, instead of encouraging their self hatred and loathing?
Check out the latest polygamy case. Judge strikes down Utah's ban today.
Granted it only strikes down the ban on multiple cohabitation, but anyone motivated can make that work.
Give it a couple of years and this will be on paper at the courthouse.
After which ?
I don't know if this is a good thing or a bad thing, socially or biologically. Perhaps a period of pagan reproduction is called for.
@gackle you do realize that same percentage of those polled were at some point against Obamacare yet that didn't stop the court from upholding it.
The fact that Obamacare was passed in the face of negative public opinion is more to my point. The comment also inaccurately assumes that I believe the courts automatically bow to public opinion.
As to whether SSM is a legal slippery slope, with rascal judges overriding the voters - apparently not. Legally, the two issues are completely different. The link below explains why:
http://tinyurl.com/p4jw69t
This assumes that everyone wants to marry or will marry when statistically, that is no longer the case - especially for men. A surplus of unmarried males (by choice) is balanced by men with multiple wives, so that women are not shorted nuptial bliss
Yeah. But aren't there options now open for men(and women) that might not exist in a polygamous society? You used to have to get married to have what is commonplace now. Opportunities might dry up if the greedy-gut well-off sex maniacs started draining the female pool. I'm thinking Donald Trump would have one for every day of the year.
Maybe being single wouldn't be so attractive in such a society. Enthusiasm for marriage might trend back up to where it used to be. Too late, however, to help the surplus males, now stuck in a polygamous situation where available women are scarce.
Also, couldn't these be some of the arguments that might be made to prove the state's compelling interest - which would give the judges what they needed to rule against polygamy?
And there's public opinion, which does have some weight. I don't believe a lot of folks would approve of polygamy the way they are now starting to approve of same sex marriage. Polygamy and same sex marriage seem to me to possess two totally different dynamics. The two issues each speak to a different spectrum. For instance, I haven't been hearing the gay community calling for legalization of polygamy.
Plural marriages also remove the types who approve of plural marriages from the marriage pool.
I'm not sure I get the drift of this.
Is it: The scarcity of marriageable women in a polygamous society would likely cause the surplus males to disapprove of polygamy? In which case, I agree it might. If I were one of those males I would probably disapprove of polygamy.
Or is it: In a polygamous society a single woman is more likely to disapprove of polygamy? Sure, that could be one reason to remain single in such a society.
To add, being impressed with a judge is like being impressed with a politician. I've learned the hard way that they are all human, fallible, and should be treated with suspicion even if you completely agree with them. You really never get a good read on them until after the fact when the history books are written. There are quite a few that were exceptionally popular in their time that led their people to utter ruin, somewhat like the aristocratic version of “Hold my beer; Watch this!”
I’m really at a loss why anyone would think “bench slaps” is a compliment to a judge. Sounds like something out of pro wrestling. “Hulk Hogan, I subpoena you for a match at the next available docket slot!” Baffles.
Eric,
"And when we fall, we're going to fall hard. ... And when it happens, the Ann Althouses of the world are going to look around and ask, "What happened?" and they just aren't going to see that they did this to us."
Yep.
The way I see it: it's a race between Islam (which is in its death throes and more dangerous because of that) trying to kill the West, and the elites of the West trying to commit civilizational suicide (taking the rest of us along with them.) Who will win the race?
I'm not sure I get the drift of this:
Plural marriages also remove the types who approve of plural marriages from the marriage pool.
I meant it as a convenient sorting mechanism. Those who don't approve of polygamy, won't engage in polygamy. This makes mate-shopping easier for those who wish to remain in monogamous relationships.
Monogamy...that raises another problem with gay (male) marriages. They push the envelope of what is acceptable cheating. Witness Althouse's belove "Titus" -- married -- who regales with tales of blow jobs with strangers. Are we to believe that "Titus" is representative in any way of normal male gay relationships? Are there statistics on the numbers of married gays who engage in cheating?
Can the straight women like Althouse who pretend to look the other way (or do they approve of) gays redefining monogamy or will they just reply with another "hrumph" when they read an earnest piece about it from Dan Savage or Andrew Sullivan?
"It's going to happen, the Harvard and Yale elitists have decreed it. Just a matter of time until they tell us who the boss is again."
What is amusing is that Harvard and Yale elitists are not doing it. They are marrying other Harvard and Yale elitists and having kids and telling everybody to "do as I say and not as I do."
I don't think there was enough recognition and response given to Quayle's brilliant posts at 8:37 and 8:38. (Nice to see Quayle back, by the way -- I at least have missed reading his comments.)
I'd really like to hear what Althouse has to say to that point.
My last comment was directed at Grackle.
I’m really at a loss why anyone would think “bench slaps” is a compliment to a judge.
It's the metaphor they enjoy -- the notion of a judge "putting down" someone or some thing they disapprove of, namely traditional marriage.
At least "bench slapping" doesn't rise to level of choke holding if you remember your recent Wisconsin judicial history, though such throttling is apparently practiced only between judges.
Part 1 (explanation from Sim Gill Salt Lake County District Attorney
The Outline of The Argument and Two Editorial Points
1. The Federal Constitution is the Supreme Law of the land. Where there is a conflict between the US Constitution and a State Constitution or State law the Supremacy clause trumps The State.
2. Conflicts between Federal and State law are often resolved by the Fourteenth Amendment's due process and equal protection rationalization. This is especially true when individual rights and liberty interests are implicated. This came into effect after African American's were emancipated but the States tried to deny them their freedoms as State rights argument by passing, democratically articulated, but constitutionally violative, laws.
3. The Fifth Amendment due process clause has found individual liberty as a constitutionally fundamental right. Individual liberty is highly prized and a jealously guarded right.
4. The Tenth Amendment States right leaves for states all the rights not articulated nor found in the Constitution to articulate and assert. Note, they cannot be in conflict with, nor deny, those rights afforded in the United States Constitution absent some extremely compelling reasons, strictly construed, to narrowly achieve that objective. Arbitrariness loses.
5. The right to determine marriage laws is clearly in the province of States nothing thus far has altered that or ever will. However, such rights are not exclusive, nor without oversight where they conflict with fundamental rights afforded and protected in the US Constitution. For example, in Loving v. Virginia, it was against the law for inter-racial couples to marry. Although such laws were the result of participatory democracy, that fact alone, was not sufficient enough for such laws to violate the individual rights of citizens under the Constitution. Such prohibitions on marriage were ruled unconstitutional as a matter of Federal constitutional protections.
6. It is generally recognized that where 5th Amendment liberty interests collide with 10th Amendment States rights chances are that the Tenth Amendment will lose where the Fifth Amendment right has been clearly found to exist (See sub. 2 and 4 above).
7. The now famous Windsor case, for the first time, took up the question, at the Federal level, the issue of same- sex couples rights. It found as a matter of federal law, not State, that there was in the Fifth Amendment's Due Process clause an individual liberty interest right in the federal Constitution. This, for the first time, found that such a right came out of the protections within the Constitution. Windsor recognized same sex unions for the purposes of federal law in the US Constitution.
8. The Windsor ruling opened the door for a future question about the potential clash between a federal recognized right and State action that might conflict with it. Justice Scalia saw the writing on the wall noting and implied in not so many words that States would likely lose any such arguments in the future after the Windsor ruling where the Fourteenth Amendment's due process and equal protection clause would now extend that argument to the States (See paragraphs 2-6 above).
9. The Utah decision is important because it is the first decision AFTER Windsor applying the federal recognition of a Fifth Amendment's individual liberty interest right as in conflict with a State Constitution amendment getting its authority from the Tenth Amendment rationalization.
Sim Gill
Part 2 from Sim Gill
10. The State is in a precarious position because its Amendment Three has been found to be in violation of a fundamental protected right and thus ruled unconstitutional, not in a vacuum, but in direct lineage from the same right being recognized as a matter of Federal Constitutional protection in Windsor. This protection now is NOT speculative but was identified, recognized and established by the US Supreme Court in Windsor and is extended to the State of Utah through the equal protection and due process clause of the Fourteenth Amendment. However, how far that right goes, as far as a State is concerned, will ultimately have to be answered by the US Supreme Court.
A. United States Constitutionally protected rights cannot be legislated away by a majority of voters. It is not the democratic process that sanctifies it, by mere consensus, but by the supremacy of the constitutional protections even if they only protect the minority of the population. The ability to vote cannot trump constitutional rights. This is what is fundamentally unique about our government that it protects us against the tyranny of the majority out of constitutional principle rather than sheer force of numbers and powers. The weakest person, alone, can withstand an entire Nation of people if they are wrong in principle but strong in numbers. Sorta like the lone worshiper who prays to God with an open heart gaining direct access on religious principle and humility rather than the qualified and demanded access by a throng of worshipers who believe in their ritual of presence every Sunday as a pathway to God's Kingdom and discriminate against those who don't show up in all too human ways.
The Law and God are the great equalizers, everyone in the middle are just weak substitutes where they would have their personal opinion dictate the rights of others. Just as we cannot condition civil rights, either we all have them or truly none of us really do. Our strength comes from our reason both as a species if you are secular and from the gift of reasoned knowledge if you are religious. We are poor substitutes for Law and God, sorry, its that human fallibility thing.
B. As an article of faith, a doctrinal belief cannot be questioned. Kierkegaard asserted that the enemy of faith is reason not to diminish the power of faith but when the fallibility of human agency tries to reason the primacy of faith for others. Either you have it or you don't.
Human society, by necessity requires shared, lived space, and restrictions upon that reality of human interaction can either be dictatorial or be within the confines of civil society administered by rules (laws) of fairness and justice. To this extent, America has embraced a Constitutional framework to work out the interactions of shared space and reasoned justice. This is OUR social and judicial tradition. We either continue to struggle through this imperfect experiment or we reject it. So far this experiment in democracy has worked out well but not without effort or sacrifice. It has corrected many of our historical errors. The question will be if we are still committed to it?
Sim Gill
Part 3 from Sim Gill
Civil rights are not defined merely by the comfort and protections they bring exclusively to me and when they agree with my needs. They are defined by when they protect, bring comfort and shelter those I do not agree with consistent with the principles we all agreed to in its inception, or until we change them Constitutionally at the national level. That is why the Constitution is the Supreme law of the land (see sub. 1 above) and our private faith has nothing to do with it. That is between us and our private conversations of faith with God.
No religious institution's article of faith can be trumped by law just as the religious reasons (not faith) cannot trump constitutional rights. It's that separation thing.
The privacy of worship, ritual, faith are not the province of any government or unbelieving citizen nor will they ever be. Similarly, the constitutional exercise of your rights are no business of mine if they do not violate the integrity of my rights and existence. This is what is still great about our country.
Sim Gill
How many wives does Sim Gill have?
Just some thoughts. Having finished reading the comments, it seems to me that there is a distinct lack of imagination among the “traditionalist” comments. And once failing to be open to possibility the mind generally reverts to either/ or… black/white thinking. In other words it is probably impossible for a traditionalist to understand any position, philosophy, argument etc but their own, which they have determined to be absolute TRUTH.
The polarized mind sees two sides and only two sides to everything – theirs and the bad peoples. They have no interest in dialogue because they already KNOW they are right. Anyone who holds a different opinion is not only wrong but bad and wrong – possibly evil. They cannot imagine that people have differing definitions of what words mean. Marriage means what they say it means and that ‘s it. Anyone who defines it differently from them is bad and wrong. Family means what they say it means etc etc
Coupled with this polarization, I think they know somewhere inside of them that change has arrived. They are not in charge :-) and that is scary. They want to control and they can’t. Without imagination they also lack vision, compassion and wisdom. They are, in a way, blind and dumb in a world that increasingly requires greater innovation, change and love.
They desperately want to go back and live in another time. But that is not possible.
Think about this for a moment. The German Nazis couldn't even live in a world where Jews existed. After WW2, they had no choice. Thus it will be with marriage traditionalists.
Sunsong,
You sound like a new ager. Are you Crack's ex-wife?
McCullough, you sound like Crack. Are you Crack?
" After WW2, [German Nazis ] had no choice."
They had a choice. Mostly they chose suicide.
grackle said...
@gackle you do realize that same percentage of those polled were at some point against Obamacare yet that didn't stop the court from upholding it.
The fact that Obamacare was passed in the face of negative public opinion is more to my point. The comment also inaccurately assumes that I believe the courts automatically bow to public opinion. "
You were rambling about polls and elections measuring different things when the question here is a judge who is using the power of the courts to legislate. If he wants to be a law maker he should run for the legislature. making policy isn't in his job description. Congress ought to impeach and remove him as an example to the others to stick to their roles and nothing else.
Blogger Meade said...
" After WW2, [German Nazis ] had no choice."
They had a choice. Mostly they chose suicide.
8/28/14, 12:40 AM"
Too bad so few of them made that choice.
Meade - no many of them fled to Argentina or even ended up in power positions in West Germany.
Interesting argument about "traditionalists" being so evil and rigid and awful and uncompassionate. Well, it is rather a rhetorical formula but of course it is a lie. Not even a person like Sunsong actually believes it.
Virtue did not begin 5 years ago.
Let me tell you about a dreadfully rigid traditionalist, my aunt the nun, whose opinions on these matters you would doubtless despise. She is so awfully rigid she -
-Learned 8 languages including Burundi and some African dialect with no written form, and for a time served as a UN translator.
- was for years was a medical missionary in Central Africa and learned to perform surgeries as often there was no actual surgeon available. She would operate in real time taking instruction over the radio.
- materially helped overthrow the Philippine government, being on the Cardinals staff.
- taught college courses in Thailand, in Thai.
- travelled around EL Salvador during the wars, investigating death squad killings.
If the new world has passed her by, then you are right, I want no part of it. Such a world has failed her.
Stare Decisis is, in many cases, an unseemly deference to the guild.
A traditionalist here. I see I am not in charge. In fact, what I see is everyone doing what is right in their own eyes. I read the Bible. When the Jews turned away from God he sometimes had their country invaded and their people taken into captivity. While we are celebrating sexual freedom, borrowing every year to pay our national bills, and ending wars by refusing to fight we have enemies with money, young men, advanced weapons on the way, a recent history of dramatically attacking major US cities, and an announced plan to take over the world and make us all submit. I pray Americans can live well in this world and I would very much like to back to earlier times.
"Commitment and even love are terminable in a way that obligation is not because both are subjective and can, to some degree, be chosen or unchosen. On the other hand, one may ignore an obligation, but cannot will it out of existence. An obligation is objective."
This quote comes from the Howard Law Review's "Portrait of a Marriage." 2006
I think about this law review article constantly.
"In a recent decision from New York’s appellate division, (which is not old) the court stated that: It is an undisputed fact that the vast majority of procreation still occurs as a result of sexual intercourse between a male and a female. In light of such a fact, “[t]he State could reasonably decide that by encouraging opposite-sex couples to marry, thereby assuming legal and financial obligations, the children born from such relationships will have better opportunities to be nurtured and raised by two parents within long-term, committed relationships, which society has traditionally viewed as advantageous for children.”65 The risk of a redefinition of marriage is that this social understanding and the goods it promotes are in danger of being lost in the new adultcentered version of marriage"
___
Adoption is being seen as adult oriented, not child centered.not until we have major adoption reforms and banning the commodification of children, can we really reform marriage back to its 'uncreative' understanding.
The legitimate government interest lies in having children raised by one mother and one father. Posner may disagree. He may believe that it's just swell to have a child raised by two men or two women or some other combination of adults. But his policy preferences do not diminish the legitimate government interest in defining marriage as one man and one woman so that children have the potential to obtain the benefits of both.
The implied "rational basis" for opposing gay marriage, gay adoption, etc., is obvious--but no longer stated openly.
But when the Defense of Marriage Act (DOMA) was passed, the House of Representatives was quite explicit about its real purpose:
"Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."
That revelation was a stunning moment in the Windsor case.
And that rationale is, frankly, disappearing.
Yes, social conservatives still continue to stigmatize homosexuality itself as: "deviant," "sick," "twisted," "perverted," "dangerous," or even "biologically defective."
(Yes, I've seen all those labels attached to it by social conservatives at National Review Online, PJ Media, etc.)
This is just one of many aspects of American life that was based on the assumption that American morality was Christian morality.
In the past:
We had strict Blue Laws.
We had laws that criminalized the sale of contraceptives, even to married couples.
We had some anti-sodomy laws that forbade oral sex, even to married heterosexual couples.
All based on the Christian view of sex and procreation.
And that view is no longer dominant in the U.S.
Times change.
"And, of course, that anal sodomy has exactly the same moral significance as the act by which human life is created.
Is that really self-evident? To whom?"
To the 12% of heterosexual Americans who have tried anal sex themselves.
The problem with social conservatives is that they never look at Craigslist to see how real Americans really have sex.
They don't just have sex for procreation.
They have oral sex and cunnilingus and 69's and threesomes and bondage and on and on.
There's no such thing as sodomy.
Let me repeat that:
There is no such thing as sodomy.
There is the potential exploitation of someone who didn't give his or her consent. That means that rape, bestiality, pedophilia, etc., are still going to be banned.
But NOTHING between consensual adults can or should be banned.
Your home is your castle.
...we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people*, by the people**, for the people***, shall not perish from the earth.
—
*as long as they are rational people.
**and not fearful.
***or angry.
Who said anything about banning anal sex?
So you can only have anal sex if you are legally married?
Why on Earth are we putting our mouths on our sexual organs anyways?
It seems rather silly. Sure, everyone does it? But why? It makes no sense, it seems like an act of submission lacking mutuality in expression.
And what's wrong with acknowledge the procreative abilities of our sexual organs, without its reproductive functions our sexual organs wouldn't exist?
But NOTHING between consensual adults can or should be banned.
NOTHING?
In Europe, a man agreed to eaten by a cannibal.
That should be cool?
Monogamy...that raises another problem with gay (male) marriages. They push the envelope of what is acceptable cheating. Witness Althouse's belove "Titus" -- married -- who regales with tales of blow jobs with strangers. Are we to believe that "Titus" is representative in any way of normal male gay relationships? Are there statistics on the numbers of married gays who engage in cheating?
Straights have open marriages. There are even websites specializing in hooking up cheating straight spouses.
And isn't this yet another case of government and bluenoses wanting to crawl into the bedroom with the (in this instance gay)citizen?
Those who don't approve of polygamy, won't engage in polygamy. This makes mate-shopping easier for those who wish to remain in monogamous relationships.
I would say that it makes mate-shopping simpler and in the case of polygamy, which creates a scarcity of eligible females and a surplus of unmarried males, it would be "easy" for the eligible females since there would so many available men wanting to marry. But for the pathetic unmarried males in a polygamous society it would be more difficult since there would be fewer eligible women.
You were rambling about polls and elections measuring different things …
"Rambling?" If responding to a specific point thrown at me during a debate is "rambling," how am I to respond? I think the commentor relegates responses he doesn't like to "rambling." Perhaps it eases the cognitive dissonance to do that.
… when the question here is a judge who is using the power of the courts to legislate. If he wants to be a law maker he should run for the legislature. making policy isn't in his job description. Congress ought to impeach and remove him as an example to the others to stick to their roles and nothing else.
Readers, now we have a comment that evidently believes it is the judiciary's function to rubberstamp ill-conceived legislation. In that case why have courts or judges? Wouldn't it be simpler without them?
Why on Earth are we putting our mouths on our sexual organs anyways?
It's called "sex." And we humans seem to like it. A lot.
No, it's not called sex.
DS and buwaya: Nice posts.
Paco @8:33am: Lol.
DS: I **UNDERSTAND** it's "settled law" amongst lawyers. But it was never, ever, ever, ever enacted or reviewed by the People, and it's absolutely not in the People's written laws. It's just made up.
But you can't understand, because if you understood, you'd agree with them. As all rational people must.
It's kinda like arguing with bible fundies, isn't it? Except, I expect biblical literalists to be none too bright, so their thick-headed insistence on citing chapter and verse as arguments to non-believers doesn't surprise me. That's what stupid people do. What I don't get is why Althouse thinks there is anything impressive (or persuasive?) in Posner's repetition of chapter and verse from the holy book, of this particular cult of holy rollers, to non-believers.
sinz52 quoting Jupiter: "And, of course, that anal sodomy has exactly the same moral significance as the act by which human life is created.
Is that really self-evident? To whom?"
To the 12% of heterosexual Americans who have tried anal sex themselves.
The problem with social conservatives is that they never look at Craigslist to see how real Americans really have sex.
Even putting aside your adolescent drivel about the alleged knowledge base of those unhip, anti-sex "social conservatives", you're entirely missing Jupiter's point. Lots of people who enjoy all kinds of sex acts still recognize a difference in moral (and social) significance between procreative sex and whatever else they might get up to or go looking for on Craigslist.
And have done so for centuries, nay, millenia, before Craigslist or plastic dildoes existed. You seriously recognize no difference in "moral significance" between engendering a child and getting blown in a public toilet? Really?
Look, if not for procreative sex acts, this issue would not exist, because marriage would not exist. There is no inherent contradiction in wanting to enjoy one's buggery in peace, and being in favor of maintaining the monogamous, heterosexual model of marriage.
All based on the Christian view of sex and procreation.
And that view is no longer dominant in the U.S.
Times change.
Sure, times change, and all things pass. Right now, the pulled-out-of-the-arse legal reasoning, the notion of the credulous that a "we" can be held together by nothing but appeals to consent and harm-avoidance, indicate that the spit-and-baling-wire stage of dealing with the fractured "we" has been reached. It isn't stable. Times change.
All laws require at least a legitimate governmental interest to which they are rationally related.
Of course. That's why it's illegal for grocery stores to sell beer before noon on Sundays.
Who said anything about banning anal sex? So you can only have anal sex if you are legally married?
Later, from the same commentor …
No, it's[oral stimulation] not called sex.
The rectum is OK but the mouth is not. Right. Got it.
Grackle wrote: "Rambling?" If responding to a specific point thrown at me during a debate is "rambling," how am I to respond? I think the commentor relegates responses he doesn't like to "rambling." Perhaps it eases the cognitive dissonance to do that.
Please keep your comments about commenters in order, lest I start attributing others' words to you as well. Thank you.
Oh and Grackle, I noticed that you avoided the last two "paragraphs" of my 11:19 comment, mustering at best a tu quoque response and lumping all heterosexual marriages together.
Are you a lumper?
@Smilin' Jack -- yeah that's what I keep saying. The problem here isn't the idea that we can't ban gay marriage; or anyway, that's not my problem with it, because I don't want to ban gay marriage.
The problem here -- and it's a very entrenched problem -- is the whole concept of the Rational Basis test. It has no basis in the plain language of this country's law. But it's deeply embedded in a long series of totally made-up decisions that turn the Due Process clause into the "Judges Get To Decide How Pure Your Motives Are You Stupid Peasant" clause.
Please keep your comments about commenters in order, lest I start attributing others' words to you as well.
Oh, have I erred? Where did my mistake occur? What words did I attribute to the wrong person? Be specific please, or else the readers may become confused as to what you are referring to.
Oh and Grackle, I noticed that you avoided the last two "paragraphs" of my 11:19 comment, mustering at best a tu quoque response and lumping all heterosexual marriages together.
Happy to comply – for now:
Monogamy...that raises another problem with gay (male) marriages. They push the envelope of what is acceptable cheating.
If straight cheating is acceptable why isn't gay cheating acceptable?
Are we to believe that "Titus" is representative in any way of normal male gay relationships?
My opinion is … no.
Are there statistics on the numbers of married gays who engage in cheating?
Wouldn't it be better to do the research instead of asking the rhetorical question? If the stats prove a point then they could be quoted, URL provided of course, and some readers could perhaps be convinced.
Can the straight women like Althouse who pretend to look the other way (or do they approve of) gays redefining monogamy or will they just reply with another "hrumph" when they read an earnest piece about it from Dan Savage or Andrew Sullivan?
Gays aren't "redefining monogamy." The present definition of monogamy will remain the same no matter what gays may do. The commentor doesn't realize this?
buwaya, pre-buwaya puti, owns the thread and owns Althouse. buwaya puti isn't bad either.
A couple of classics: "It is like using law to resolve problems in physics. It does not change the reality of the matter."
And: "That is why I don't see the point in tracking all the arguments and maneuverings here. It is like explaining the internal functions of a gun .... The important questions are who is firing the gun, at whom, and for what reason. The mechanism of the gun and the tedious descriptions of all the greasy parts all working as expected is irrelevant."
Sobering reminders of what American law and the American legal system have become viewed from the paradigm called reality.
Legal reasoning and reality only exist in the same universe by accident. When they see each other they avert their eyes and pretend the other does is not there.
"case law that binds the judges. " Ann is quite the comic.
The "Rational basis" thesis is the idea that if a lawyer in a black robe doesn’t think you have a rational argument, you don’t. It presumes that rationality is impossible to discern by the average person but is entrusted to a priesthood endowed with supernatural power. So you simply blind yourself to reality and reason and step off the edge of the cliff like Indiana Jones in The Last Crusade.
In reality, there is plenty of rational basis for the traditional definition of marriage. It is only an idiotic assumption that rationality can only be grasped by judges through an analysis of their own beliefs, the searches of law clerks through volumes of law book. The Romans at least checked the entrails of a chicken before making their decisions. The modern legal mind presumes you must abandon all that the common people believe to achieve true wisdom.
I've noticed that around the internet, it’s the atheists, the lawyers, the people who are forever seeking to overthrow the settled customs of the people who are the most rabidly religious, zealous, and likely to proselytize. They bash Christianity, tradition and custom with wicked glee. In fact they delight in rubbing it in the faces of the great unwashed that they have control of the levers of coercion and the hell with what other believe. And they cannot shut up about it.
It seems rather silly. Sure, everyone does it? But why? It makes no sense, it seems like an act of submission lacking mutuality in expression.
Well a popular form of oral sex (popularly called 69) involves mutual pleasure.
Why on Earth are we putting our mouths on our sexual organs anyways?
I can see the prude squad has arrived!
Sunsong wrote;
"The polarized mind sees two sides and only two sides to everything – theirs and the bad peoples."
Pssst, I think you're talking to you.
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