A secular case against SSM

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_wenglund
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Re: A secular case against SSM

Post by _wenglund »

JohnStuartMill wrote:Hey Wade: hypothetically speaking, if I could find a study saying that legalizing gay marriage would increase state revenues, would you be in favor of it? If not, then your argument here is insincere.


Were finances the only cost/benefits for the state to rationally consider, then what you suggest may make sense. It's not, and so you don't.

Thanks, -Wade Englund-
"Why should I care about being consistent?" --Mister Scratch (MD, '08)
_wenglund
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Re: A secular case against SSM

Post by _wenglund »

JohnStuartMill wrote:But we both know that Wade doesn't actually give a flying f*** about good government concerns here, and is merely latching onto whatever secular argument could conceivably justify his anti-gay pet issue. I'm trying to get him to admit that.


This is not just ironic in the extreme, but a blatant falsehood. But, such is to be expected from those, such as yourself, attempting to defend the indefensable and argue the banal.

Thanks, -Wade Englund-
"Why should I care about being consistent?" --Mister Scratch (MD, '08)
_wenglund
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Re: A secular case against SSM

Post by _wenglund »

EAllusion wrote:JSM -

"Rational basis" is a type of constitutional test that means something different than what it would mean in other contexts. To paraphrase a favorite legal blogger, it need not be rational nor a basis. Generally, it just means that the government has to have some reason for doing what its doing that isn't off the wall incoherent and is related to a legitimate purpose of the government. More importantly for purposes of this conversation, it doesn't need to be the most morally justifiable or rational stance for the government to take. It's not saying that. In the context of the above quote, it's not a tautology. It's the initial finding on a constitutional test followed by the reasoning for it. When stricter constitutional standards have been used more akin to what you think of when you hear the words "rational basis" is when you see it being shot down by the courts.


For an authoritative explanation of Rational Basis and other Equal Protection tests covered under judicial review, see HERE.

Thanks, -Wade Englund-
"Why should I care about being consistent?" --Mister Scratch (MD, '08)
_EAllusion
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Re: A secular case against SSM

Post by _EAllusion »

wenglund wrote:
That is the long and subtle way of describing state interest--i.e. the benefits of an anarchic state outweigh the cost of legislating and adjudicating familial disputes.


It's not really state interest. It's the interest of the people that drive the formation and relevant interest of the state. You're looking at this in an oddly authoritarian way.
While the right to enter into contractual agreements (like marriage) isn't the government's to hand out, the right to have the state sanction a particular contract is.


Well, the government is either morally obligated to recognize certain contracts and deal with them or not depending on the factors at play.You have to be careful not to imply that it is a matter of the whim of the government or what serve's the governments' interests. What matters is whether the rights of the people are secured and whether the welfare of the people are advanced by this or not. But this is already what Gad was getting at. The first step is understanding the arrangements are the people's right. The second step is reading why it's a good idea for the state to mediate these arrangements to the extent it is.

As it happens, your attempt at an absurd example could be structured in a way that would be handled by the courts. It's pointless to go through that though as it is true that not every agreement people make is going to be enforced by the government. That's part of what the government does: provide a framework for what kinds of force can be applied to settle disagreement. The government would deal with your example by saying that nothing is going to be done and forbidding them from taking matters into their own hands beyond a certain point.


It depends. It isn't in the governments interest to legally recognized or santion delitarious relationships (incest for example) or disbeneficial contractual agreements (contracts between bankrobbers).


That goes back to the point of the government having a good basis for discrimination or not. Providing examples of where it does doesn't advance the instances in which it does not.

The bank robbers point is odd, as the government can and should mediate their contracts just the same. Robbing a bank doesn't make a person a lawless island unto themself.
It's not about what benefits the government. The government exists to secure the well-being of the people, not the other way around. It's as if the enlightenment and basic liberal, western political philosophy passed you by, in which case there is a much deeper conversation you need to have.


It's about what benefits the well-being of the people. In advancing that cause, it is quite important to make sure that there is just equality before the law, which is the fundamental value at play here. I'm not sure if I need to explain why adopting that principle provides an important benefit to the general welfare of a society, but I'll assume I don't for the time being. Of course, if the procreation/rearing argument you endorse wasn't garbage, then that would be a reason to discriminate. But first you have to be able to make that case. But you're going further and arguing that the government can and ought to deny classes of people rights and privileges given to others on based on whether it advances the interests of the government. Wow. You know, the existence of Mormonism doesn't really advance the interest of government, nor does allowing the LDS Church to buy land that could instead by bought by taxpayers.

The question is not what does gay (or interracial) marriage give the government, but rather what reason does the government have to mediate opposite-sex marriage and but not gay marriage? Baseless discrimination against classes of people, if allowed in one instance, sets behavioral precedents for the government that potentially threaten the well-being of everyone. Hence the right of people to equal treatment.
_JohnStuartMill
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Re: A secular case against SSM

Post by _JohnStuartMill »

EAllusion wrote:JSM -

"Rational basis" is a type of constitutional test that means something different than what it would mean in other contexts. To paraphrase a favorite legal blogger, it need not be rational nor a basis. Generally, it just means that the government has to have some reason for doing what its doing that isn't off the wall incoherent and is related to a legitimate purpose of the government. More importantly for purposes of this conversation, it doesn't need to be the most morally justifiable or rational stance for the government to take. It's not saying that. In the context of the above quote, it's not a tautology.
That's not what I considered a tautology. I considered the usage of the word "marriage" to a priori exclude gay marriages to be a tautology. Sorry for not being clear.


It's the initial finding on a constitutional test followed by the reasoning for it. When stricter constitutional standards have been used more akin to what you think of when you hear the words "rational basis" is when you see it being shot down by the courts.
Right. In California, gays are protected under "strict scrutiny", which is a higher standard for the government to meet, and which is reserved for groups that have faced historical discrimination. That's why I brought up discrimination against gays: I think this higher standard should apply federally. Again, sorry that this wasn't made explicit, but this is a message board, after all, and I didn't want to bog down everyone here in legalese when I could make my broader point without it. I figured that the lawyers here would be able to read between the lines if they wanted to get into the matters legal.
"You clearly haven't read [Dawkins'] book." -Kevin Graham, 11/04/09
_EAllusion
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Re: A secular case against SSM

Post by _EAllusion »

JohnStuartMill wrote:
That's not what I considered a tautology. I considered the usage of the word "marriage" to a priori exclude gay marriages to be a tautology. Sorry for not being clear.[/quote]

I think you misread that. He meant "marriage and procreation" to be tied together as if it were one term. Marriage could include gays, but marriage and procreation would not, at least according to his argument.
_JohnStuartMill
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Re: A secular case against SSM

Post by _JohnStuartMill »

It could be read either way -- I blame English for not having the linguistic equivalent of math's parentheses -- but you're probably right that that's what the judge meant. Even so, the judge's reasoning is still bad, for the reasons I offered under 2) of my original post: "There is insufficient evidence to say that heterosexual unions actually are the 'optimal union for procreation', and significant evidence that other kinds of unions are just as good."
"You clearly haven't read [Dawkins'] book." -Kevin Graham, 11/04/09
_Roger Morrison
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Re: A secular case against SSM

Post by _Roger Morrison »

From Wade's post... RM is in (---):

Here is how Judge Taylor of the Federal District Court of California summarized the argument:

"...the DOMA has a rational basis and serves a justifiable purpose by encouraging marriage and procreation. (Holding the position they do, could they say otherwise? I don't think so. RM) 'Because procreation is necessary to perpetuate humankind, encouraging the optimal union for procreation is a legitimate government interest,' (Procreation needs little encouragement. It is a natural function. In today's world of over-population, it is better to encourage lowering the birth-rate. RM) ...'By excluding same-sex couples from the federal rights and responsibilities of marriage, and by providing those rights and responsibilities only to people in opposite-sex marriages, the government is communicating to citizens that opposite-sex relationships have special significance' (Yes they incorrectly do. RM)... 'E.ncouraging the optimal union for rearing children by both biological parents is also a legitimate purpose of government. The argument is not legally helpful that children raised by same-sex couples may also enjoy benefits, possibly different, but equal to those experienced by children raised by opposite-sex couples. It is for Congress, not the Court, to weigh the evidence.'” (Using scales founded in other times. U.S.A. is known for its nonconforming measurements. RM ;-) (see: HERE).

The reason this argument is so popular and has substantial sway in the courts, is because it correctly understands the fundimental purpose for why laws (marital and family laws in particular) are enacted within democracies. This argument actually gets the notions of legislative and judicial review and that reasonable basis and state interest ought to guide each. (In your opinion. RM)

Does anyone here have a rational counter to this reasoned argument.

Well, I tried... OTOH, I question your opinion re "...this reasoned argument." RM

Thanks, -Wade Englund-.

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_Some Schmo
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Re: A secular case against SSM

Post by _Some Schmo »

Unbelievable. It's hilarious that someone wants to act like he's having a reasoned argument or holds a rational justification for blatant discrimination, and actually has the balls to condemn others for not wanting to entertain the madness.

Wade, just come out of the closet already. This kind of massive self-loathing can't at all be good for you (and given your posts on the topic, the sickness is apparent for all to see).

Thanks, -Some Schmo-
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_wenglund
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Re: A secular case against SSM

Post by _wenglund »

JohnStuartMill wrote:The problems with this are manifold. 1) "Procreation" is obviously not what the government is actually supporting. Any 15-year-old kid can bonk another and make a baby, but this is not something the government should subsidize.


I would think that after someone on your own side of the issue (Eallusion) has had to correct and school you twice now on the same page of this thread, that you would get a hint that you don't know what you are talking about. But, no, your hubris is so prodigious that even in your evident clueless state about law, you think yourself in a position to dismiss the legal reasoning of a federal district judge. And, it isn't just Taylors position that you inanely brush aside, I can cite you a number of state and federal supreme court rulings that echo Taylors sentiment. Besides, a person would have to be rather daft not to understand that one of the primary funtions, if not THE primary function, of societies and governments is to help assure their own survival and to perpetuate the species, which, to an overwhelming extent throughout the ages has been made possible through procreation.

However, while procreation is vital, it is in the governments interest to encourage responsible procreation. The SUpreme Court of New York held:

"Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement—in the form of marriage and its attendant benefits—to opposite-sex couples who make a solemn, long-term commitment to each other. The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples." (See Hernandez v. Robles)

2) There is insufficient evidence to say that heterosexual unions actually are the "optimal union for procreation", and significant evidence that other kinds of unions are just as good.


Not surprisingly, the legislatures in at least 39 states as well as the federal government, and the judges in all but a handful of the 91 court cases on SSM, disagree with you.

I will address your last point in my next post.

Thanks, -Wade Engllund-
"Why should I care about being consistent?" --Mister Scratch (MD, '08)
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