The Rabbit Hole

HAT FULL OF SKY ICON = PRATCHETT FAN = I LOVE YOU

(Although, strangely, I have yet to get through the Wee Free Men books. Oh well.)

Seriously, I wish I were half as cool as Olbermann and could sit and vent spleens on TV. However, I have a potty mouth, and the FCC would be all over my ass with just this sentence alone. :P

I have never not voiced my opinion loudly and obnoxiously. I feel bad because I don't want to offend, but I just don't how not to say things I feel about stuff. (Try to be more vague, why not?) I usually add the caveat of "If you don't agree, yell your own opinion back at me. Insult about me that which I insult about you." For small things like TV shows ("OMG THAT SHOW YOU LIKE IS SO STUPID."), it works okay, I hope, mostly as I know I like indefensibly bad things.

But for fucking human rights!? If you don't ride on the side of best intentions, you're basically opposed to human rights. It's like the Republicans voting down that "Moms are awesome!" note in Congress the other week. How the fuck can you be against having it publicly declared that moms are awesome? Moms are awesome.

And, yes, dude, drinking, any time! Drunken liberals are so hot.

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jendaby.livejournal.com

Okay, I only just got the reply notification in email on this...wtf? But! I respond!

I am a Pratchett fan, yep! I have an autographed copy of Wintersmith, too. The WFM books are not as racy as the non-YA Discworld stuff, but I find them enjoyable. :)

If you had your own show, I would watch it. Maybe on cable you could get away with the swearing.

I will probably be out barhopping early next month - we should coordinate! :)

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Dude, I would love to be on TV excpet for the part where I'd have to lose half my current body weight to even be accepted.

Yeah, keep me posted about outings. I'm usually good for 'em.

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That's a straw man argument on C.J. George's part--no one argues that same-sex marriage is a fundamental constitutional right, but should be denied anyway due to tradition. The argument is that there is no fundamental constitutional right to same-sex marriage, which is certainly correct under the federal Constitution and is probably also correct under the California Constitution without an amendment. I don't find it persuasive to say that a same-sex marriage is identical to a heterosexual marriage for the purpose of the constitutional right, given the purpose of state-sanctioned marriage.

George is on much better ground in the claim that giving the same package of rights to both types of couple but calling it different things is an Equal Protection violation. In finding a fundamental right to same-sex marriage, the court probably went too far.

(Not to say that I don't think there should be same-sex marriage, but it's a legislative decision, not a judicial decision.)

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My feelings are this: I think marriage should, as a word, not exist. Let's make all unions that the states legalize be just that--unions. You agree to this or that partnership under the law that the state and federal governments recognize possess and guarantee certain privileges and rights. If you and your partner then want [fill in the name of a religion here] to sanctify it, that's your own problem. We just want to know if you'll be filing jointly on your taxes from now on.

And people do argue that hetero marriage should stand because it's tradition. They are the ones who are like "But that's what marriage is!" thinking back to before we had a country that refused to establish a state/federal religious background to which to appeal. There is no mention in our constitution that says which way you can or can't marry, but that's the way ministers have always done it and because ministers were the marriage makers, it's always had this religious tone to it. They use it to have their cake and eat it, too. For one thing, religion is a religious matter (even though the state licensing really nullifies that argument) therefore you can't make them marry the gays. For another, that's the way it's always been done, therefore it has the legitimacy of time (and the historical fact that such prejudices have always worked against gay marriage is conveniently ignored).

Anyway, I'm not going to beat up the strawman, though I don't think people who claim "GOD SAYS NO HOMOS" are really that far off from "NO HOMOS 'CAUSE THAT AIN'T THE WAY WE DO IT." My point is that marriage is something states regulate and religions officiate. I'm all for states regulating without bias against the sexes wishing to get married (and thereby ensuring all have the equal opportunity to marry despite varying preferences in the genitalia of their mates). Religions can officiate where they choose, but the state should make an effort to make marriage accessible to all.

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When I said "no one argues that", I should have said, "no lawyer argues that." Tradition goes to the question of whether same-sex marriage is a fundamental right, but George's phrasing is that people are arguing that while same-sex marriage is a fundamental human right, it should still be stopped because of tradition.

To use a different example, suppose the Cal. Sup. Ct. decided tomorrow that the Cal. Constitution secures a fundamental human right to frosty chocolate milkshakes. It would be wrong to say that opponents of this decision were horrible people opposed to fundamental human rights. The opponents simply don't believe that there is such a fundamental human right.

The same thing's going on here--there are a number of reasons that opponents of judicially created gay marriage rights believe that there isn't such a right, one of them being the tradition that marriage is designed around procreation and has never applied to marriage between a man and a woman (this is valid but probably the weakest argument for the proposition.) But it is arguing in bad faith to say that opponents of gay marriage are opposed to basic human rights, just like it would be arguing in bad faith to say that opponents of free frosty chocolate milkshakes are opposed to basic human rights.

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The fact that you would equate something like the right to marry with the right to have milkshakes is disturbing, dude. Rights are not arbitrary. They are not doled out according to personal tastes. (Hey, I don't like milkshakes. Does that mean I don't like human rights?) They have evolved with thought and time and conscience. We recognize certain things as taboo--murder, theft, etc.--just as surely as we recognize things as (secularly) sacred--love, respect, etc. Our self-awareness is that these things are not owed but owned by every person by virtue of their sentience. Milkshakes? Really? That's the best you could do? You've become the strawman in making not only a faulty analogy but a heartless one.

If someone decided tomorrow that milkshakes were a fundamental right, that wouldn't make it so. But 90% of humanity (save sociopaths and their ilk) recognize that love and the right to love as you will (with consenting partners) is fundamental--it is inseparable (except in the aforementioned outlier cases) from our basic humanity. It is something we are born to cultivate. (Procreation of successful human beings often depends on it.) It is human, in other words, and something we have the right to acquire and, once acquire, have respected. If people are so flawed as not to do so on an individual level, we, as a society interested in furthering human rights, need to be sure some legal protection is there.

Milkshakes? A beverage more synthetic than nylon (in most cases) is a fair comparison to love? Science H. Logic.

(And my reading, as a non-lawyer, is not that the Court demanded gay marriage for all, only that you could not, within California, deny rights that are sex-blind in the legalese to people who chose to exercise those rights on the "wrong" sex. This is still not the "judicial activism" that crazed conservatives love to howl about. This is looking at the law, at the separate-and-therefore-inequal, and acting in the interests of equality, which is in the interests of any state.)

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You're still missing the point, and why I made the analogy. Your original post:

"Tradition. You've got to be fucking kidding me. TRADITION is a good enough reason to deny people basic human rights? Find me the people who think so right now. I'd like to initiate them into the tradition of me stabbing them in the groin with rusty knives."

But no one's saying that people should be denied basic human rights because of tradition, but that the activity being considered isn't a basic human right because of tradition. You're mixing up the logic of the argument, and using that to say that opponents are opposed to basic human rights. That's the point of the analogy to a "right to frosty chocolate milkshakes"--which was the first thing that came to mind because I was drinking a chocolate egg cream at the time. That was the entire point of the analogy. To say there's no right to gay marriage requires a lot more analysis than it takes to dismiss the right to milkshakes.

And, well, you've basically said that "X is not a right because of tradition" is a valid argument. As you said,

"Rights are not arbitrary. They are not doled out according to personal tastes. (Hey, I don't like milkshakes. Does that mean I don't like human rights?) They have evolved with thought and time and conscience. We recognize certain things as taboo--murder, theft, etc.--just as surely as we recognize things as (secularly) sacred--love, respect, etc. Our self-awareness is that these things are not owed but owned by every person by virtue of their sentience." (emphasis mine)

Marriage may have evolved with thought and time and conscience, but gay marriage is a much harder sell; it's essentially a new phenomenon. That's why it's hard to claim that there's a right to it, particularly one enshrined in a Constitution written over 200 years ago. And when we established the concept of a right to marriage in U.S. Constitutional law, it was based not on the right to love (doesn't exist, and if it does, where can I get some?), but on the right to procreate legitimately--see Loving v. Virginia.

So no, there shouldn't be a constitutional right to same-sex marriage; to the extent there's any right to marriage (which is a derived rather than enumerated right), it was explicitly based on the right to procreate and can therefore only apply to heterosexual marriage. There is now, as far as precedent is concerned (I think it's a bad precedent), a right to do pretty much whatever you want with respect to sexual acts (Lawrence v. Texas), but that's very different from a right to have a relationship recognized and granted privileges by the state.

As far as basic human rights are concerned, well...where do those come from? If they come from some concept of international law, there's no right to gay marriage. If they come from a concept of natural rights or natural law, it's hard to justify a right to gay marriage. As a legal concept, it's hard to get to a right to gay marriage, period--that's why almost no court has done so.

The actual Cal. Sup. Ct. decision had multiple parts; they held that the fundamental right to marriage (correct) includes same-sex marriages (incorrect), and as a separate grounds for decision, held that under California's version of equal protection, they can't treat gays and straights differently without a compelling state interest, and there is no such compelling state interest (correct). So, were I a Cal. Sup. Ct. justice, I would have filed a concurring opinion with the majority, agreeing in the result but only agreeing in the reasoning as to the equal protection analysis.

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moonlightalice.livejournal.com

This whole argument has just made me want milkshakes.

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viridian.livejournal.com

But no one's saying that people should be denied basic human rights because of tradition,

Yes, they are.

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God, I love that icon :)

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viridian.livejournal.com

I love this one just a little bit more.

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Heee!

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hslayer.livejournal.com

I! DRINK! YOUR! MILKSHAKE! I DRINK IT UP! **SLURRRRRRRRRRRRRRPPP!!!**

I guess that'd be like sleeping with his wife in this discussion's context.

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viridian.livejournal.com

BTW, you are not allowed to make "drinking one's milkshake" a permanent euphemism for "sleeping with one's wife."

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hslayer.livejournal.com

Hopefully it's not something for which I'll need a euphemism very often!

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Just to prove that there are these folks out here. While the lawyers might make the case, these are the ones making the noise:

Matt Barber, CWA Policy Director for Cultural Issues: "So-called ‘same-sex’ marriage is counterfeit marriage. Marriage is, and has always been, between a man and a woman."

Americans For Truth's Peter LaBarbara: "This will always be immoral. California’s highest court has created a “fundamental” marriage right out of behavior - homosexuality - that is fundamentally wrong and destructive."

Family Research Council's Tony Perkins: "It’s outrageous that the court has overturned the historic definition of marriage."

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Yes, but all of these people are making the legitimate claim that same-sex marriage isn't a basic human right; not that it should be denied due to tradition despite being a basic human right.

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Marriage is a basic human right, according to Loving.

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That doesn't mean you can arbitrarily define marriage for the purpose of the right, especially in a way that every U.S. court has rejected.

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If marriage is a basic human right and you deny it to some people, you're saying they're not human.

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Not if marriage is only defined as a union between a man and a woman, which was certainly the understanding in Loving. Your logic is similar to:

Slavery is a violation of the basic human right to freedom.
Jobs paying less than $20/hr. are slavery
Therefore, jobs paying less than $20/hr. violate basic human rights.

You can't redefine the term mid-syllogism

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I'm not redefining, I'm extrapolating. But you want to keep redirecting as you did above, so there's just no way we're getting any where and I'm done.

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Um. You can. You sort of have to.

Searches require a warrant
Wiretaps are searches
Wiretaps require a warrant

Redefining terms mid-syllogism is how judicial interpretation of guarantees of rights WORKS. Redefining marriage as the right to marry the person you wish, irrespective of sex, is perfectly reasonable if you consider the sexes equivalent and homosexual love to be valid.

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wellgull.livejournal.com

The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread?

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Indeed it does. Unless the legislature determines otherwise :)

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moonlightalice.livejournal.com

What are you talking about?

He's saying that marriage is an individual's fundamental right. The state can decide those details insofar that they cannot curtail that fundamental right. Denying marriage based on sex is the same as denying it based on race, i.e. amounting to a denial of an individual's fundamental right to marry. What's this nonsense about a fundamental right to same-sex marriage? That's a ridiculous logical fallacy--no one is arguing that the same-sex part is the fundamental right. It's the marriage part that is.

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Denying marriage based on sex is the same as denying it based on race, i.e. amounting to a denial of an individual's fundamental right to marry.

But does the fundamental right to marry mean that marriage can include whatever group of consenting N people agree to it? Is there a fundamental right to polygamous marriage? A fundamental right to incestuous marriage? Not likely.

It should be obvious to anyone that the sex of the participants is a lot more significant to the marital relationship than the race of the participants. At least as far as state-sanctioned marriage is concerned, there's a lot more to it than just "any two people willing to enter into the relationship can get married." You can't just say it's an "individual's right to marry", because first you have to define what the "right to marry" means, and in world history, it's never extended to the right to marry someone of the same gender.

I have to reiterate that I still think gay marriage is a good thing and should be made legal--but that doesn't make it a basic human right.

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moonlightalice.livejournal.com

But does the fundamental right to marry mean that marriage can include whatever group of consenting N people agree to it? Is there a fundamental right to polygamous marriage? A fundamental right to incestuous marriage? Not likely.

Is there a legitimate reason to reject polygamous marriage based on fundamental rights? I don't think so. Incest is so taboo I really don't feel it's an issue, and to some extent that's true for polygamous marriage. These things haven't really surfaced the way same-sex marriage has.

It should be obvious to anyone that the sex of the participants is a lot more significant to the marital relationship than the race of the participants. At least as far as state-sanctioned marriage is concerned, there's a lot more to it than just "any two people willing to enter into the relationship can get married." You can't just say it's an "individual's right to marry", because first you have to define what the "right to marry" means, and in world history, it's never extended to the right to marry someone of the same gender.

You say there's "a lot more to it"--like what?

And going back to the Judge's opinion, just because it hasn't been recognized in history does not mean that it cannot today be considered a basic human right. Just because a right has been denied in history does not justify continued oppression today.

I'm not sure I agree with the basic human rights angle either, but I see his argument.

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wellgull.livejournal.com

This is the fundamental problem of generalizing systems, including the law, but also all of Kantian ethics. What do we generalize from the specific case? I think of it as the "scoping" problem of casuistry (though there's probably a technical name for it out there). But few people on either side recognize it as such.

As for the specifics of this case, the problem is that there isn't a solid base for the state to establish a right to marriage for anybody that is held up well by practice. Theoretically it's because marriage is the core of the family and families are the basis of the state, but that can't be right, because we let people marry without having children, and have children without being married. And there's nothing to say that letting gay couples marry and then adopt wouldn't be in the interests of the state (aside from prejudice regarding gender roles and the proper home environment, but that's not something that can properly be legislated, imo).

Given that marriage is permitted to non-breeders and not compulsory for breeders, it must be derived from something other than procreation (which is pretty much the only natural grounds under which same-sex marriages differ from het ones); there must be a right to create a family structure -- i.e. it must be a legal recognition of our (natural) right to form bonds with each other. Essentially, if the judge doesn't make the (correct) decision that the state has no compelling interest in creating a right to marriage at all, then he must find that right to be founded in something other than procreation, and that something is the right to found a family just between the partners being married.

(Incidentally, in your scoping question, I would argue that (from a philosophical perspective) if we have any legally recognized marriage, then any marriage contract among consenting non-incestuous adults ought to be recognized as valid, unless it's transparently tax fraud.)

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Incest is covered by the impossible consent issue.

As far as polyperson marriage, I would say that the right to marry multiple people is a universal human right, yes. I would, however, say that there is a compelling government interest in restricting the rights granted by the government to go along with marriage to one person per person at any given time.

Let's do remember that there are two issues here: The right of individual people to cohabit and present themselves as married, and the right to have their relationship recognized in the eyes of the law. To be fair to your side, Loving removed laws that infringed BOTH, and at this late date there is little obstacle to members of the same sex (or a group) living as a married couple (unit) and calling themselves married, as there was to the Lovings, who were committing a crime in Virginia by doing so. Whether equality demands that we offer the governmental rights to such people is, I would say, an obvious decision based on the human right to equality and non-discrimination, with the caveat that in such equality interest, the government has a interest in limiting the number of benefits tied to any given person (so, say, a bigamist could only designate ONE wife as his wife under law. Given a poly-person situation, I waffle on whether the government could require that all such designations be reciprocal, and whether to permit pre-determined survivorship charts).

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hslayer.livejournal.com

Incest is covered by the impossible consent issue.

What about between adult siblings? Come on, man. You know your brother's hot.

I would, however, say that there is a compelling government interest in restricting the rights granted by the government to go along with marriage to one person per person at any given time.

Seriously. Not that I'd have anything against a harem per se (though someone might), but think of the tax code! Gah.

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