While I appreciate the time you took to draw out your law school hypotheticals and trying to fill in my responses, I simply don't agree with you on the issue. I don't really see how the 17 year old argument has much weight on this issue. I don't think the legislatures intent was to make the clear distinction of the state feeling like 17 3/4 old is morally repugnant vs. just being 18. The states in that example are basically setting an age limit in which they think a person is of reasonable enough mind to make the choice to marry. That holds true if the 17 year old girl wanted to marry a 40 year old or 20 year old - the only thing the state cares about is what they feel is an appropriate age for a person to be of reasonable mind to make the choice to marry. How that applies to gay marriage, I'm unsure of. This makes no sense. You're saying they're not being something new or accepting their choice because there are not many gay relationships where both parties are dominant? How many heterosexual relationships do you know of where both the man and wife serve as the dominant party? I don't know any that are still functional. I think that's more to do with human nature than anything - it's easier for relationships to work when one party takes the dominant role/lead.
and as an aside (sideline?) -- as I read the article -- the title of the piece, and the various comments in it on the judge finding a gay marriage ban unconstitutional may not be quite accurate. I quoted in an above post the bit about NOT creating recognizing or validating a marriage -- in which he further justifies his decision by tying it to the goals of Texas public policy. Those are odd statements to make if he's saying the Texas ban is unconstitutional. It seems he argues the 'right to divorce' under the constitution, rather then the right to get married. (attach usual caveats about my Constitutional Law degree being granted at the Holiday Inn).
The divorce statutes in the Texas Family Code provides the property distribution system and provides protection to heterosexual couples. This being the case, I cannot fathom how you would provide the same protection to homosexual couples without a gay divorce.
On POINT 2, I concede. I went too far in labeling them and I'll throw out that point all-together. Let me just say this: there is a trend for homosexual men to act/appear effeminate. There is a trend for lesbian women to act/appear butch. I think this is VERY SAFE to say. They are strong trends. But let's ignore this point because it was just an unnecessary diatribe on my part. POINT 1, I think it is perfectly fine to compare this to the age of consent. I the courts/legal system think that consent laws are morality issues as well. You talk of consent laws as arbitrary lines. Arbitrary lines, , are not enough to stop someone to get married. It better be a more "compelling" state interest than that. Still, although I don't concede on this point, let's assume that consent laws are not analogous morality laws. If you don't agree with that then how about this: How about polygamy? It is in line with homosexual sex. Why allow homosexuality and therefore give way to their marriage. And then not allow polygamy of all things, which should be allowed. If you want to talk about discrimination of a group of people, then surely we can we talk about another group: people who practice polygamy? Such a grouping would just be the same as grouping people by their acts of homosexuality. But, even better yet. Polygamy laws discriminate against Mormons. It discriminates against religious affiliation! It does not get any worse than that. Now I have the better case. First, I'd love to know why polygamy is illegal. THEN, after that, I'll give you some other ideas you can think about for your own pleasure. You can think about why laws against homosexuality are not allowed while moral laws are allowed against "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." *That's actually a quote from a high ranking official* But I don't want you to respond to those, just think about those as "food for thought." If homosexuality can be termed as illegal under state moral laws, then there is no reason they should be allowed to marry.
First, let me say this. (I'm not answering your quote above in this paragraph) In my first post in this entire thread, I was merely asking some questions. I believe I have an answer to it now. I don't know where this gay couple got married. Let us assume, that it was Massachusetts. This gay couple then move to Texas and create residence there. One of the partners catches the other cheating on him, he wants a divorce. Texas does not have gay marriage, but they have to respect this marriage whether it is gay or not. It is a marriage according to Massachusetts law and therefore it is, plain and simple, treated as a marriage in the Texas courts. (Full Faith and Credit Clause) Texas provides a means of divorce for marriages, whether they are Massachusetts marriages or Texas marriages. Okay, now I will approach your civil union argument. I have not done the research that I mentioned I would do, I'll just mention an idea off the top of my head. Civil unions between gays are not allowed in most states, and certainly not allowed in Texas. Apparently there are hundreds of other benefits to a marriage over a civil union, but I'm not sure about that. You say that it is wrong that a set of people have no recourse for property rights. 1) A set of people? Well that raises the question whether this is a set of people based on choosing to do an act? Or are they a set of people genetically? If it is choosing to do an act, then they are no set of people at all just as those who drink alcohol are a set of people. If homosexuality is an act of choice, then what difference is their relationship to having a live-in girlfriend. This girlfriend has lived with a man for 5 years. They each accumulated property together from each of their bank accounts. Why provide one for people who choose to bang a guy in the butt while deciding to live with that person? <object width="425" height="344"><param name="movie" value="http://www.youtube.com/v/jGKZILodBxk&hl=en&fs=1&"></param><param name="allowFullScreen" value="true"></param><param name="allowscriptaccess" value="always"></param><embed src="http://www.youtube.com/v/jGKZILodBxk&hl=en&fs=1&" type="application/x-shockwave-flash" allowscriptaccess="always" allowfullscreen="true" width="425" height="344"></embed></object> *Sorry for the terminology, but I think that "sodomy, "gay sex" are overused terms and no longer carry the weight of emphasizing that this is choice. It is an act.* After you tackle that point, then how about this one. Let's say people who choose to have homosexual sex and want to share property rights should be able to do so. Why can't they contract this? For land they can have a Tenancy in Common or something, and they can contract the property bought. It is quite easy to separate property rights for each other. Roomates do this all the time! They buy the furniture, and agree to who has possession of it when they part ways! There are so many things you can do with a contract, property rights is just one of them. I feel that I have sufficiently answered both you and LongTimeFan's questions. If I have mistaken any of your points, then please let me know. And then maybe I'll do some research. But I think everything has been addressed.
You've created a rather torturous legal argument regarding the age of consent by reducing it to sexual acts. The age of consent deals with a host of other things such as voting, getting drafting and entering contracts. Its more than a mere statement regarding what the culture finds repugnant but a statement regarding when does society think that people can make informed decisions. There is a reason why its called statuatory rape because the argument there is that someone isn't mature enough to make a decision to offer consent to the act. Now by your own definition that gays are making a voluntary decision that you fully recognize as voluntarily and not compelled shows that you recognize that it isn't a matter of force but an action of consent. In other words you are showing the difference why homosexual relations cannot be conflated with underage sex. There is another problem you are skirting is that Polygamy is different than monogamous marriage in one key respect which is the rights of each individual in the marriage. At the moment we can't substitute pluarl marriage into our monogamous marriage as we have no framework for how the rights are aportioned. Now if there was a way of doing that I personally would say if people freely consent to that then let them but polygamy is a far greater problem legally than gay marriage even if any moral repugance was left out.
That is the point though is that under full faith and credit Texas has to recognize a contract entered into under the rules of another state even if that contract might not have taken place under Texas laws. For example Credit Card company set up operations in South Dakota to take advantage of the fact that SD doesn't have usury laws. When you sign up for a credit card you are often agreeing to a contract under SD terms even if you are in another state. NOw you can cancel your credit, ie divorce yourself from the bank, no matter what state you are without forcing any change in your own state's usury laws. First off is that there are common law marriages in the situation of two people cohabiting for years in a virtual state of marriage even if they aren't officially married. So your live in girlfriend argument does lead to some facets of marriage even without the ceremony. YOu seem to be very obsessed with the act without considering anything else. There are heterosexual couples that get married who don't have sex, ie an elderly couple, a couple where there is a medical condition preventing one or both from having sex, and where one is in prison. The sex act isn't essential to marriage in the butt or otherwise but from the law's standpoint is about rights. Under your argument though that focuses primarily on the sex act you could ban marriage of hetero couples if they planned on having anal sex. Again the act isn't the issue. If it was up to me I would leave marriage altogether to the contract law where government has no say and everything is defined in a contract. Our system doesn't work that way and asl long as we have equal protection then it should apply equally to voth hetero and homo.
the age argument is stupid. frankly its irrelevant. thats another point. you argue that all you want, but using this analogy is absurd. gay marriage bans are discriminating against a class of people, and that should merit intermediate scrutiny. once you trigger that, there are basically no non-religious arguments on the state side to justify gay marriage bans.
Well, let's brush away ALL my ancillary arguments. Let's not even address the age of consent argument or anything else I've said so that we don't get swamped by my verbosity. Lets get down to the crux of it all. Two points. One addressing the LongTimeFan argument as protected by judoka, and one addressing the Refman argument as protected by judoka. 1) POLYGAMY/BIGAMY. Judoka, You recognize that there is no existing framework. You recognize that we can create the framework. So let the government figure out the framework if they want to regulate it. Not too hard. If people freely consent, then why doesn't the government allow this? It's because it is of moral repugnance. Moral repugnance here, beats the right to marriage. If polygamy is forbidden, then gay marriage can be forbidden. Both can have frameworks. Both are not about rights, but rather about morality. MARRIAGE and the SEXUAL ACT: There are laws forbidding cousins to marry. Whether they actually have sex or not is irrelevant. It assumes the sexual act. It is not about rights. When it comes to these forbidden marriages (homosexual, incestuous) the sexual act can be assumed. Props to you for that one.
Oh, I forgot Point 3. Refman's point but not protected by judoka. CONTRACT: We can contract all these property rights. We can contract practically anything. I think those three points, all condensed in a nutshell, satisfy everything. Let me know if any of those 3 points do not work.
Moral repugnance? Because you find the sex they may, or may not have to be yucky? By that standard there are more then a few straight folks who should be forbidden from being married. Ewwwwwwwww.
It is the State that finds it "yucky." Whether I find it that way doesn't matter. I was merely saying that the state has always been given the power to pass morality laws, and this is one of them.
yet somehow miscegenation laws were overturned by scotus. point is, yes states can regulate all these things, but when they are discriminating without any compelling interest, its not kosher. there is a compelling interest in banning polygamy. there is none in banning same sex marriage.
MUST.......NOT......GET DRAwN InTo AnotHer GAy MArRIagE deBAtE..... ****! just out of curiosity, if a study came out that kids were proven to be born racist.....would that then make it okay for people to be racist?
Are you serious? You are applying miscegenation to this? Yes, I know that morality laws must have compelling state interest if discriminating against a strict scrutiny protected group. First of all, gays aren't a protected group at all. Hell, not even the disabled are a protected group and that's pretty messed up. Rational basis applies to gays (and even the disabled). I don't know why rational basis should not be the measure. It seems that you have already categorized them as deserving strict scrutiny (compelling state interest) and not intermediate scrutiny even. You'll have to explain to me why they deserve strict or intermediate, moreso than other groups such as the disabled, or the elderly, or the poor, etc. Those are all sets of people too. I will chalk this miscegenation comment to a moment where you misspoke, which... I have done many times in this thread already. So I'm willing to toss this aside and focus on your main point below. Even if we assume that you make an incredible argument on why strict scrutiny should be used for gays. I don't understand how you think there is a (compelling or actual purpose) state interest in banning polygamy, while there is none in banning sex same marriage? If I missed some earlier comment you made in this thread about polygamy please let me know. Did you already mention why/how you found the compelling interest in polygamy, and how it is significantly different from same-sex? Sincerely, Pimphand24
You are right. You can use contract for these things. Then let's scrap the divorce statutes all together and force all heterosexual couples to be so forward thinking as to have a prenup.
Says the man who (in the very same post!) insists it's just like polygamy! You had me going. Well played. Jokes on me!
first, can you please leave a line between paragraphs? but yes i do think strict scrutiny should apply to this. just like i do strict scrutiny should apply for women. i think immutable characteristics like sexual orientation and gender should have the same scrutiny applied as does race. i don't see the difference. however at the very least i would want intermediate scrutiny and i don't see any state interest in not allowing same sex marriage. thus even with rational basis, there is no basis to ban same sex marriage. and yes i do think miscegenation applies every much as polygamy would. you are regulating marriage, a fundamental right. the analysis is the same. for polygamy we have various reasons to ban it, notably protection of children. personally, i don't care. i don't think there is a huge percentage of polygamous families seeking state approval. whereas this is completely inapplicable in the case of same sex couples who wish to marry since there isn't a protection of children issue. there isn't a problem in terms of property rights, inheritance, social security etc. and seriously are you at liberty law school or something? what con law professor is this narrow minded.
As you wish. So... being gay is an immutable characteristic? So we're back to saying homosexuality is something genetic/ that you are born with. There isn't much proof on this claim yet, it is ambiguous at best. But... one has to wonder why being disabled isn't immutable as many are born with it. If you want to beat a drum for immutable characteristics, start with the disabled, then those discriminated for age, and then go down the line... there are a lot of them. Miscegenation is on a whole different level. Race is the focus, not marriage! Race protection is at the top of the list for strict scrutiny. There are many immutable characteristics that aren't even close to protected as race is. So you should probably drop that. It'd be a losing battle. I'm not even going to address it further. But even then talking about miscegenation is off topic and doesn't speak to the point. There's no reason to get hung up on this. Protection of children problem?! I guess if you want to paint all polygamists as treating their children poorly. I guess a few bad apples ruined the bunch for you. Polygamy is completely in line here, it has to do with the right to marriage too. It has to do with morality laws. And in fact, when one thinks about it, neither creates an inherent harm. There are many Mormons who wanted/want polygamy and they are stopped by a law. Perhaps not all of them, but plenty. Many take it as their religious belief. If you want a "set of people" or "class," stopped in their right to marry, there you go. It is a perfect example, all wrapped together and tied with a ribbon bow for you. It doesn't get any better than this. If people try to create an analogy eve in the D&D, they will cite to this as a textbook example on how you create an analogy. I dub it, "Analogy 101!" (Exclamation mark included) So... if we want to apply strict scrutiny for this polygamy thing, the State would have no compelling interest here because there are other ways to take care of the children abuse than to ban polygamy. Strict Scrutiny denied. Abuse of children denies polygamists the right to marry who they want?! really? really? Morality laws are allowed to dictate same sex marriage just as much as polygamy. I'm not saying either are wrong, and I'm not saying either are right. I'm saying that under any legal sense, either you allow them both under the law, or you can have state's deny them both. Scalia? Surely you read his dissent in Lawrence v. Texas. What law school did youuuuuuuuuu go to! http://www.law.cornell.edu/supct/html/02-102.ZD.html (Do a search for bigamy, it appears twice) Are you some kind of 1L? Con Law hasn't been covered yet, I understand. But you should be studying rather than loitering here. I think we are done here. I don't see what else can be discussed. In Summary: Polygamy IS on point. Deal with it. Confront it. Embrace it. And in your opinion, some level of scrutiny is required for something that we don't know is immutable or not, and this scrutiny for gays is required over other groups that ACTUALLY have immutable characteristics. In my opinion, why give scrutiny to gays and ignore other groups. Our court system simply does not hand out scrutiny for any immutable characteristic. I wish it did buddy. We are now at a stalemate on this scrutiny issue. I say, good game everyone. I'm glad that we could turn this into a more rational discussion than what the D&D is used to. Good game everyone.
