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Author Topic: OK, one more time. Definitions and a gay marriage ban.
scifibum
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quote:
Originally posted by Pete at Home:
I'm ambivalent. I've felt the passionate desire to throw out accusations of dishonesty over claims that from my perspective are plainly false on their face by simple consideration of the words, e.g. that guns are "intended" to be used lethally while alcohol is not "intended" to be used in a dangerous manner. Or that a law defining marriage as the union of man and woman constitutes a "gay marriage ban." There is no single interpretation of the word "intent" or "marriage" that renders the statement true; you have to interpret the word one way for part of your argument and interpret it another way for the other part of your argument. But I've come to realize that such mental twerkings are the product of the company we keep; the mental gears of our clock get shaved a bit here and a bit there, and there's not necessarily any intentional dishonesty. Think of it like the Matrix.

I want to talk about this claim:

'There is no single interpretation of the word "intent" or "marriage" that renders the statement true;'

Working definitions:

marriage - the civil institution that recognizes a wedding of two individuals into a unit which has newly formed obligations and benefits that attach to the institution. In most historical places and times this has meant a man and a woman (polygamy in this case would involve multiple "marriages").

gay marriage - marriage that involves two people of the same sex, in places where the legal definition of marriage has been altered.

ban - preventing an act from occurring

intent - desired outcome of action

Under this set of definitions, I think it's true that a new law that defines marriage as between a man and a woman has the intentional effect of banning gay marriage.

Pete, I don't think I'm equivocating. You haven't convinced me in the past. I thought maybe if I laid it out in this simple way you'd have a better chance of convincing me.

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Pete at Home
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I don't think you're equivocating, but you are mistaken. With the definitions you have provided, Amendment 8 did not prevent "gay marriage" from occurring, as the civil union of California civil partnerships was a "civil institution that recognizes a wedding of two individuals into a unit which has newly formed obligations and benefits that attach to the institution."

One might argue the centrality of the word "the" in your definition, saying that if there are multiple such institutions that marriage as you define it cannot exist. But if one said that, we might question that person's intellectual honesty, because Sweden and the Netherlands have about four different variations of civil partnerships through marriages for gay and hetero couples, and no one is accusing those countries of "banning" gay marriage.

I think we're way beyond convincing anyone at this point ... it's just a matter of understanding each other, and deciding what we might be able to tolerate as far as long term compromises go. A little while ago Tom laid out a long term compromise with regard to a national amendment that I found very close to agreeable, but when he realized we were so close to agreement he kind of panicked and went back to arguing about my interim solution re constructive exceptions.

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TomDavidson
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quote:
A little while ago Tom laid out a long term compromise with regard to a national amendment that I found very close to agreeable, but when he realized we were so close to agreement he kind of panicked...
OR you misunderstood me, and freaked out when I objected to what you considered a logical extension of what you thought I was saying that would still allow you to have your cake while eating it. I suggest that one is far more likely than the other. [Smile]
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Pete at Home
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quote:
Originally posted by TomDavidson:
quote:
A little while ago Tom laid out a long term compromise with regard to a national amendment that I found very close to agreeable, but when he realized we were so close to agreement he kind of panicked...
OR you misunderstood me, and freaked out when I objected to what you considered a logical extension of what you thought I was saying that would still allow you to have your cake while eating it. I suggest that one is far more likely than the other. [Smile]
I think your description of that discussion belongs in Sci-Fi's last thread about fundamental dishonesty.

I never laid out a logical extension to your proposal of a federal amendment. I said that I'd agree to something very close to what you proposed as a final settling of the issue, and asked if you wanted to discuss that amendment further. You basically dodged the question, a tactic that IMO Seneca learned from you, and went back to ground that we clearly disagree on, i.e. my interim solution of constructive exceptions.

I'm not "freaked out" that you reject that; you've done nothing but confirm my prejudices about the overall purpose of American SSM movement as far as its straight proponents and architects.

When you conceded that a national amendment was needed, you made the same honest admission that SciFi made above on this thread, i.e. that "gay marriage" as conceived by most Americans requires a fundamental redefinition of marriage.

So I take it that you'd be willing to resolve the issue through a national amendment, so long as you had sole control over the process and your perceived opponents were cut out of the discussion.

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TomDavidson
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quote:
you made the same honest admission that SciFi made above on this thread, i.e. that "gay marriage" as conceived by most Americans requires a fundamental redefinition of marriage.
I don't believe scifi made this admission at all; I think you have completely misunderstood him, to the extent that you actually reversed his meaning.
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scifibum
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quote:
you made the same honest admission that SciFi made above on this thread, i.e. that "gay marriage" as conceived by most Americans requires a fundamental redefinition of marriage.
Hey now, careful with restating what I said. [Smile]

SSM requires the law to change or to be interpreted differently than in the past, for the most part. The legal "definition" needs to change. Don't leave out the word "legal" if you're quoting me there.

But I don't "admit" that it requires a change to the fundamental definition of the word marriage.

Partly because there IS no such thing as a fundamental definition of a word. Words are defined by imperfectly shared meaning which resides in our brains. There is no foundation.

Partly because the imperfectly shared meaning that you would like to preserve will in fact be preserved by those who want to preserve it. Additional meaning doesn't take away other forms of meaning.

[ February 03, 2014, 04:51 PM: Message edited by: scifibum ]

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Pete at Home
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Would you then concede that it requires either a fundamental redefinition of the word marriage OR a denial that the word marriage has any fundamental meaning? [Big Grin]

Because for my purposes, that's even better.

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PSRT
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quote:
Would you then concede that it requires either a fundamental redefinition of the word marriage OR a denial that the word marriage has any fundamental meaning?
I would say that ALL words have no fundamental meaning. So I would agree that you could say that I do not believe words have fundamental meaning, but that if you specified that I believe the word marriage has no fundamental meaning, you are mis-stating my position.
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scifibum
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There's a rather high chance that someone would infer all kinds of inaccurate meanings from the paraphrase "denial that the word marriage has any fundamental meaning". Not at all unlikely that someone would say that such a denial constituted the belief that marriage was meaningless, for instance. And that's not what I think.

What I'm denying is that there's such a thing as a definition so fundamental that the civil insitution of SSM would fundamentally alter it. Language doesn't work that way. For a guy that likes plays on words, it's odd that you would view a single definition as crucial.

[ February 03, 2014, 05:02 PM: Message edited by: scifibum ]

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Pete at Home
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quote:
Originally posted by PSRT:
quote:
Would you then concede that it requires either a fundamental redefinition of the word marriage OR a denial that the word marriage has any fundamental meaning?
I would say that ALL words have no fundamental meaning.
Sure you would, until a term comes up that you consider fundamentally meaningful, such as "Organic foods," if memory serves. [Big Grin]
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Pete at Home
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quote:
Originally posted by scifibum:
There's a rather high chance that someone would infer all kinds of inaccurate meanings from the paraphrase "denial that the word marriage has any fundamental meaning". Not at all unlikely that someone would say that such a denial constituted the belief that marriage was meaningless, for instance. And that's not what I think.

What I'm denying is that there's such a thing as a definition so fundamental that the civil insitution of SSM would fundamentally alter it. Language doesn't work that way. For a guy that likes plays on words, it's odd that you would view a single definition as crucial.

That's because considered the difference between mere descriptive words as opposed to words that creates their own meaning. Redefinine marriage, and something currently real in the world ceases to exist. Redefine dogs, and dogs will still be dogs, even if we have a hard time describing them.
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TomDavidson
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quote:
Redefinine marriage, and something currently real in the world ceases to exist.
I don't see how allowing my uncle to marry his husband made my marriage vanish.
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Seriati
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quote:
Originally posted by Pete at Home:
That's because considered the difference between mere descriptive words as opposed to words that creates their own meaning. Redefinine marriage, and something currently real in the world ceases to exist.

What exactly is this "real" thing that would cease to exist? I don't see anyway for a civil legal definition to take away from the religious concept of marriage for instance.
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Pete at Home
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The social recognition that the union of man and woman conveys unique value and requires a unique ruleset for the benefit of potential children.

Here is a list of the fourteen cases, with links to the opinions and citations to the Court’s discussion of the right to marry.

Maynard v. Hill, 125 U.S. 190, 205, 211 (1888): Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
Meyer v. Nebraska, 262 U.S. 390, 399 (1923): The right “to marry, establish a home and bring up children” is a central part of liberty protected by the Due Process Clause.
Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942): Marriage “one of the basic civil rights of man,” “fundamental to the very existence and survival of the race.”
Griswold v. Connecticut, 381 U.S. 479, 486 (1965): “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”

Read these cases, with the footnotes, especially the first, Maynard v. Hill, and it's clear that the fundamental right to marriage is predicated on a heterosexist definition of marriage. Marriage as a fundamental right cannot long survive the neutering of the marriage construct.

If the courts neuter marriage nationally, then before the year 2200 AD the courts will cease to treat marriage as a fundamental constitutional right.

OTOH, if marriage is defined in a national amendment, then it won't be tossed out with the trash. Which is, I suspect, why Tom did a 180 when I agreed with his proposal of a national amendment that established marriage as a right for all couples and prohibited certain fallout that marriage defense folks had expressed fears over.

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Seriati
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quote:
Originally posted by Pete at Home:
[QB] The social recognition that the union of man and woman conveys unique value and requires a unique ruleset for the benefit of potential children.

Why do you think this? I see no reason to believe that rules about marriages can not be adjusted to reflect the different needs of MF, FF and MM marriages.
quote:
Read these cases, with the footnotes, especially the first, Maynard v. Hill, and it's clear that the fundamental right to marriage is predicated on a heterosexist definition of marriage.
Historically, there is some truth to that, though, I think you underestimate what the court's would have decided if SSM had been on the table at the time. The protection of children made a convenient hook for state power, but particularly in the older cases when they were closer to natural law as a source of rights I've no doubt they would have come out the same way if SSM had been on the table. I mean honestly, they overcame the idea that sterile couples could wed, why do you think they'd have had difficulty with gay ones?
quote:
Marriage as a fundamental right cannot long survive the neutering of the marriage construct.
I disagree. I think you'd have to posit a completely non-modern judiciary, holding strictly to archaic practices, that they knew were archaic for this to be the result. But as a second point, I don't see why you believe this isn't a risk even without SSM.
quote:
If the courts neuter marriage nationally, then before the year 2200 AD the courts will cease to treat marriage as a fundamental constitutional right.
That smacks of fortune telling. What grounds do you have to believe that such a thing will occur? And I ask that specifically as someone who both supports SSM and marriage as a fundemental right, not something that is uncommon among citizens or jurists.
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TomDavidson
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quote:
Which is, I suspect, why Tom did a 180 when I agreed with his proposal of a national amendment that established marriage as a right for all couples and prohibited certain fallout that marriage defense folks had expressed fears over.
I already told you why I clarified what you'd gotten wrong.

I did not "do a 180." I pointed out what you'd misunderstood, and explained where I felt you'd overreached in your eagerness.

Stop misrepresenting what happened, Pete, or I will be quite upset.

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Pete at Home
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" I see no reason to believe that rules about marriages can not be adjusted to reflect the different needs of MF, FF and MM marriages. "

That depends on how SSM is enacted. If through the arguments of the Goodridge atrocity, that's not acceptable since any variation constitutes in Goodridge-speak, an unacceptable "separate but equal" abomination.

"What grounds do you have to believe that such a thing will occur?"

As I've said, because neutered marriage undermines the factual and logical underpinnings of constitutional fundamental marriage, per the cases I cited. That's not fortune telling, that's just reading the damned cases and footnotes.

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scifibum
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quote:
Redefinine marriage, and something currently real in the world ceases to exist.
I think this is the weakest part of your overall argument against SSM. I agree with you that marriage has an important function in stabilizing societies and for the welfare of children, but I think it continues to serve that function just as well - better, in fact - with SSM.

I think the legal effect of marriage has been shaped to reinforce and preserve the benefits of marriage to children and society, and helps communicate its importance and functions. And again, I think a more inclusive civil institution only strengthens those benefits.

quote:
it's clear that the fundamental right to marriage is predicated on a heterosexist definition of marriage
I have read Maynard v. Hill before without coming away with that conclusion. I would certainly agree that the men who wrote the opinion probably didn't conceive of same sex marriage, but now we do conceive of it, and I don't think it undermines marriage's role in society, but rather shores it up.

quote:
If the courts neuter marriage nationally, then before the year 2200 AD the courts will cease to treat marriage as a fundamental constitutional right.
I admit, I think things will look so radically different by then that this question might be completely moot. Look at where we are compared to 1800. Multiply by a factor of widespread and accelerating computing power.

That being said, how does your conclusion follow? The courts are finding additional rationales for recognizing a right to marry, not erasing old ones.

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Pete at Home
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No, SciFi, all the "new" justifications reference Magnard and its progeny. Goodridge reduces the whole fundamental right to a house of cards.
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Adam Masterman
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quote:
Originally posted by Pete at Home:
Would you then concede that it requires ... a denial that the word marriage has any fundamental meaning? [Big Grin]

Because for my purposes, that's even better.

Its true in the sense that scifi used it, but its not a point that you've ever seemed to understand. Scifi is looking critically at how language functions (see Wittgenstein); you have typically mistaken that for some form of nihilism.
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Pete at Home
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Adam, like Tom you are still moping and headspun over arguments that ended years ago.

**** nihilism. Pay attention to this week's arguments.

If marriage has no fundamental meaning but can mean whatever the **** the government says it means, then it can't possibly be a fundamental civil right.

Tom "reasons" that his marriage is still there therefore nothing could possibly be lost, but the current state of Tom's marriage is not the barometer for everything in the universe.

What has been lost is the security of a fundamental constitutional right.

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Pete at Home
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Adam, if we accept your foolish assumption that Witkinstein is relevant to 14th Amendment jurisprudence as well to what W actually addressed (the ordinary evolution of words) then there's basically no such thing as ANY fundamental constitutional right.

That's not the world I want for my children.

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scifibum
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quote:
If marriage has no fundamental meaning but can mean whatever the **** the government says it means, then it can't possibly be a fundamental civil right.
Except you're pretty much the only one who thinks that SSM somehow obliterates meaning. I don't even hear this raised by any other opponents of SSM. If we remain in general agreement that we all still understand what it means to get married, then your fear doesn't hold water.
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Pete at Home
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SciFi, you're confusing my social argument with the constitutional issue that I've laid out on this thread. If as you said there is no fundamental meaning in any words then there are no fundamental constitutional rights. Regardless of whether neutering marriage in itself obliterates meaning.

[ February 04, 2014, 11:54 AM: Message edited by: Pete at Home ]

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scifibum
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I wonder how hard it would be to find terms related to other constitutional rights whose meaning has changed in the last 200 years or so, and how those rights have (or more likely, have not) been eroded or obliterated.

I don't really have the time or motivation for it, but I think it can be done. How about "person"?

I contend that all of the meanings of marriage upon which the "right to marry" is predicated will be preserved. I don't contend that the word carries no meaning, which is what you keep pretending.

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TomDavidson
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quote:
If marriage has no fundamental meaning but can mean whatever the **** the government says it means, then it can't possibly be a fundamental civil right.
It appears to me that scifibum has posited a "fundamental meaning" of marriage in his very first post here, one that does not necessitate gender.

Your concern is that the courts will for some reason conclude that marriages without the presumption of opposite gender (and thus accidental children) will no longer have a compelling reason to be recognized or promoted by the state. I think this is an unfounded concern. What you are calling "fundamental meaning," I suspect, is what most people would call "legal rationale for existence." And yet I solemnly guarantee you that legal rationales for marriage will continue to be invented even if people no longer assume the possibility of children.

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scifibum
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quote:
Originally posted by Pete at Home:
SciFi, you're confusing my social argument with the constitutional issue that I've laid out on this thread. If as you said there is no fundamental meaning in any words then there are no fundamental constitutional rights.

No, I'm not confusing the two. I'm pointing out, repeatedly, that my objection to your ideas about the fragile yet "fundamental" meaning of marriage does not constitute the belief that there IS no meaning, and certainly doesn't amount to "it means whatever the government says it means". It means what it means. It means SSM as well as what you want it to mean. That's okay.
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Pete at Home
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Sf, Scotus rulings are not cut in stone tablets. If you indercut the reasoning that underpins a ruling, you undercut the ruling.

Maynard v Hill establishes marriage as a fundamental constitutional right based on society's purpose for marriage as a means of perpetuating our civilization.

The 14th Amendment-based SSM argument (Goodridge and its misbegotten progeny) reject the premise that legal marriage was founded for the prime purpose of nurturing potential children.

Maynard and Goodridge cannot endure together for long. Either the one or the other must be overturned.

That's why as a last defense i'd accept a fed amendment redefining, even neutering marriage, so that some sort of fundamental right to "marry" might be preserved. But when I said that, Tom ran from his own proposal. [Frown]

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TomDavidson
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I didn't run from my own proposal. I noted that I would not accept any "compromise" which allows to exist a semantically and/or legally distinct "gendered marriage" entity that can be distinguished -- again, semantically and/or legally -- from "ungendered marriage," which is where you took my initial proposal.
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Pete at Home
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quote:
. What you are calling "fundamental meaning," I suspect, is what most people would call "legal rationale for existence."
Tom, you seem to be actually listening to me today. I'm delighted. Good analysis.

quote:
. What you are calling "fundamental meaning," I suspect, is what most people would call "legal rationale for existence." And yet I solemnly guarantee you that legal rationales for marriage will continue to be invented even if people no longer assume the possibility of children
Quite possibly, but that hardly guarantees that it will continue as a fundamental constitutional right. There are societies where the powers that be have the power to terminate a marriage without regards for the desires of the actual couple.
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Pete at Home
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quote:
Originally posted by TomDavidson:
I didn't run from my own proposal. I noted that I would not accept any "compromise" which allows to exist a semantically and/or legally distinct "gendered marriage" entity that can be distinguished -- again, semantically and/or legally -- from "ungendered marriage," which is where you took my initial proposal.

I call BS. Please cite where I so took it.

I don't recall your constitutional proposal to require changes in the dictionary, in the Bible, and in people's private usage. Is that your position now or were you just being sloppy with the words "allow" and "semantically."?

[ February 04, 2014, 12:35 PM: Message edited by: Pete at Home ]

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scifibum
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quote:
Maynard v Hill establishes marriage as a fundamental constitutional right based on society's purpose for marriage as a means of perpetuating our civilization.

The 14th Amendment-based SSM argument (Goodridge and its misbegotten progeny) reject the premise that legal marriage was founded for the prime purpose of nurturing potential children.

Did you notice that you just cited two rather different reasons in those two paragraphs?

"Perpetuating the civilization" (and I think Goodridge actually agrees with this reasoning) is different from "nurturing potential children". There is overlap, sure, but raising children isn't the only function of marriage and isn't the only way that marriage perpetuates civilization.

I don't think, though, that Goodridge actually rejected the reasoning that child rearing is one of the purposes of marriage. It references the well being of children several times and argues that the children of same sex couples will be better served if their parents are able to be married.

It argues that procreation isn't the "primary purpose" of marriage.

I don't see anything in Maynard that says that the "prime purpose" of marriage is nurturing potential children. I don't see that elsewhere, either. I do see that the right to bring up children is often referenced alongside the right to marriage. But I don't think there's a straightforward or inescapable conflict between that claim and the reasoning of Goodridge.

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Pete at Home
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Let's get something straight. Do you concede that the Goodridge majority as a court of law was speaking about LEGAL marriage? (As opposed to the concurrence which psychotically tried to speak directly to religion and to the culture at large.)
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Pete at Home
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(Parantherically, "marriage bans" originally referred to proclamations of a lawful marriage). So the term's not only inaccurate but culturally illiterate.
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scifibum
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Sure. (to the post two above this one)
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Seriati
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quote:
Originally posted by Pete at Home:
That depends on how SSM is enacted. If through the arguments of the Goodridge atrocity, that's not acceptable since any variation constitutes in Goodridge-speak, an unacceptable "separate but equal" abomination.

It's been years since I read Goodridge (which is a MA court case and not directly relevant to SCOTUS cases if you really want to hammer down on this), yet I doubt my position on it would change today. As I read it, and looking through my understanding of Con Law - with a federal not MA focus - it was in fact an abomination. Not because it's outcome was bad, but because it was judicial activism. I don't know enough about MA court authority, but I would guess that they do not share the law making powers of elected judges and probably should have been impeached.

That said, there is no reason they could not have determined that equal protection required that the marriage statute be struck down until a non-discriminatory version replace it.

Seperate but equal is a poor express rationale for it, and the court's abuse of authority left them using a ill-fitted tool. That could have been avoided by forcing the rule maker to craft the solution. And I don't agree that every adjustment would have violated the court's position, particularly those designed to account for differences in the participants in ways that were not enacted purposely to discriminate.

For example, I'd be shocked if the court would have intervened if the legislature had provided that a child of FF pairing was the child of both upon divorce, or alternatively the child of its birth mother. Whereas in the MF its always the child of both (assuming atm that it is genetically). And given that there are no natural children of a MM combination, any number of rules for natural children of one of them conceived during the marriage. All of those rules would have been unique, but unlikely to have been deemed discriminatory - unless in fact they deliberately discriminated.
quote:
As I've said, because neutered marriage undermines the factual and logical underpinnings of constitutional fundamental marriage, per the cases I cited. That's not fortune telling, that's just reading the damned cases and footnotes.
Well I think your terms "neutered marriage" and "fundamental marriage" don't actually draw a legitimate distintion vis a vis the case law. It's clear the case law supports a broader view of the purpose of marriage than those terms imply, otherwise the elderly and sterile would be barred from marriage as well.

It is fortune telling, when you cling to a singular reading of a footnote, in an environment when virtually everyone you've ever talked to on this point disagrees with your interpretation of the value of the meaning. Or to put it more clearly, why should I and everyone else who believes in a meaning of marriage as a fundemental right that includes the pair bonding of any two adults willing to stand before the community as married, are suddenly in the future going to heave back to an extreme reading of a provision to destroy the instiution? The levels of contra-logical positions you must believe we'd adhear to are beyond thought, and to what gain? We believe that marriage is so fundemental its wrong to deny it to an additional small percentage of our population, and somehow you interpret to mean down the road we'd support eliminating it?

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Pete at Home
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"I think your terms "neutered marriage" and "fundamental marriage" don't actually draw a legitimate distintion vis a vis the case law."

I don't believe I ever used the term "fundamental marriage." that pairing of words makes no sense to me. I spoke of a "fundamental meaning of (legal) marriage," meaning the raison d'etre, of marriage, the facts which lay the foundation for government's involvement in the marriage institution. Tom above translated my phrase as the rationale for legal marriage, and I commended him for that restatement. Goodridge uses the term "SINA QUA NON."

Run a word search through Goodridge for that term Sina Qua Non. Goodridge says that the sina qua non of the government's involvement in marriage isn't the government's interest in potential children, but rather the happiness, love, and togetherness of the adults. In other words, Goodridge says, benefiting kids is a nice side effect of marriage, but the true raison d'etre of legal marriage is the regulation of love and togetherness.

That is the reasoning on which hangs the entire 14th Amendment SSM argument. SciFi erroneously uses the term "SSM" to describe that argument, but in fact throughout history SSM models have NEVER before undercut the essential heterosexism of the marriage model. I use the term "neutered marriage" for this new abortion of legal thought that stalks our land. There are other SSM models, although they offend the fastidious sensibilities of some.

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TomDavidson
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quote:
I don't recall your constitutional proposal to require changes in the dictionary, in the Bible, and in people's private usage. Is that your position now or were you just being sloppy with the words "allow" and "semantically."?
I don't give a damn about private usage. And I care even less about the Bible. What I don't want is: a) two different sorts of certificates, one for gendered marriage and one for genderless marriage; b) two different legal terms, one for gendered marriage and one for genderless marriage; c) two different legal processes, one for gendered marriage and one for genderless marriage; and d) some weird requirement that the participants in a marriage pretend to be a gendered pair so that their marriage is "officially" gendered.
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Pete at Home
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quote:
Originally posted by TomDavidson:
quote:
I don't recall your constitutional proposal to require changes in the dictionary, in the Bible, and in people's private usage. Is that your position now or were you just being sloppy with the words "allow" and "semantically."?
I don't give a damn about private usage. And I care even less about the Bible. What I don't want is: a) two different sorts of certificates, one for gendered marriage and one for genderless marriage; b) two different legal terms, one for gendered marriage and one for genderless marriage; c) two different legal processes, one for gendered marriage and one for genderless marriage; and d) some weird requirement that the participants in a marriage pretend to be a gendered pair so that their marriage is "officially" gendered.
When it comes to Federal CONSTITUTIONAL AMENDMENTS, I told you that I'd be willing to accept ALL of the points in your paragraph above, if we could expand a bit on the other provisions you mentioned in that previous thread, e.g. protecting religious organizations from charges of discrimination. I would expand: not restricting anyone from any govt office because of membership in a religion that doesn't accept SSM, decertifying any bar association that discriminated against someone on the basis of membership in an ssm-rejecting organization, etc. THAT is when you cut and ran back to the argument of legal fictions. Even though I told you that I regarded Legal fictions as a judicial kludge, a temporary solution until we could get everyone's rights protected through a federal amendment.

[ February 04, 2014, 02:52 PM: Message edited by: Pete at Home ]

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Seriati
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quote:
Originally posted by Pete at Home:
I don't believe I ever used the term "fundamental marriage." that pairing of words makes no sense to me.

It's in the sentence I quoted, thought I dropped the "constitutional" adjective for brevity.
quote:
I spoke of a "fundamental meaning of (legal) marriage," meaning the raison d'etre, of marriage, the facts which lay the foundation for government's involvement in the marriage institution.
I've read these cases as well. I think you've misread them. The courts don't establish a reason for marriage, nor do they try to. The courts establish the State's interest in marriage, and they do so solely to describe the limits of the state's authority to interfere with an institution they deem to be a fundemental right (ie not a state granted one). I'm aware of the centrality of the hook they've used in past of the welfare of children and potential children, but that does not mean they discounted the interpersonal elements.

For example, read any of the cases on spousal immunity and priviledge. There's no basis for them in any part of the child welfare rationale, the basis is entirely in the interpresonal connection and its inviolability vis a vis the state. Now I do accept, as people's view that the state grants rights, rather than the people have inherent rights, becomes more prevalent all of these things are at risk, but SSM is in no way relevant to that debate.
quote:
Run a word search through Goodridge for that term Sina Qua Non. Goodridge says that the sina qua non of the government's involvement in marriage isn't the government's interest in potential children, but rather the happiness, love, and togetherness of the adults. In other words, Goodridge says, benefiting kids is a nice side effect of marriage, but the true raison d'etre of legal marriage is the regulation of love and togetherness.
And I already agreed that Goodridge was poorly reasoned. So are a lot of other opinions, particularly on topics where the court's are stretching their authority to justify state action or alternatively to create new law. In my view, the ends justify the means crowd, doesn't care what the reasoning is, or that its flawed, they only care about the result. And that undermines your concern on this as well. They won't care either way in the future about the footnotes, the precedent or the words that are used. For the rest of us, while Goodridge is poorly reasoned, it does not follow that the result should not have been achieved properly.
quote:
That is the reasoning on which hangs the entire 14th Amendment SSM argument. SciFi erroneously uses the term "SSM" to describe that argument, but in fact throughout history SSM models have NEVER before undercut the essential heterosexism of the marriage model.
Yes, I agree, against a history of overwhelming discrimination against homosexuality, including a not insignificant amount of violation and even death, there isn't a back drop establishing a patter of same sex marriage. So what? We live in a society that is already incredibly tolerant, even comfortable with the reality that homosexuality is a valid lifestyle, and is becoming more so. Why would we be limited to the same solutions that prejudiced socieities endorced?
quote:
I use the term "neutered marriage" for this new abortion of legal thought that stalks our land.
I don't see an abortion of legal thought. In fact, all I see is one simple change in emphasis. If you accept that marriage is about the people in it, even in part, and not just the children produced or the state's interest in them, then legal thought is invariably going to make a pure gendered defintion hard to justify. What grounds other than precedent are there really to support it? And if you accept that some rights of marriage are not about the children, it becomes impossible to even claim that as a true by a precedential argument. Or if you accept the state has an interest in stable pair bondings - which has also appeared in court decisions - it's again a lost battle.
quote:
There are other SSM models, although they offend the fastidious sensibilities of some.
I'm not sure that there are any "models", let alone that you've established one unique from others. Out of curiosity, other than multi-partner models, do you believe there are other equivalent opposite sex models?
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