How about some actual news with the news?

[trinityvixen]

More about the California decision.

Most important part, right here:

The California Supreme Court was the first state high court to strike down a law barring interracial marriage, in a 1948 decision called Perez v. Sharp. The United States Supreme Court did not follow suit until 1967.

Thursday’s decision was rooted in two rationales, and both drew on the Perez decision.

The first was that marriage is a fundamental constitutional right. “The right to marry,” Chief Justice George wrote, “represents the right of an individual to establish a legally recognized family with a person of one’s choice and, as such, is of fundamental significance both to society and to the individual.”

Chief Justice George conceded that “as an historical matter in this state marriage has always been restricted to a union between a man and a woman.” But “tradition alone,” the chief justice continued, does not justify the denial of a fundamental constitutional right. Bans on interracial marriage were, he wrote, sanctioned by the state for many years.

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.

Comments

[trinityvixen.livejournal.com]

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.

[edgehopper.livejournal.com]

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.

[trinityvixen.livejournal.com]

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.)

[edgehopper.livejournal.com]

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.

[moonlightalice.livejournal.com]

This whole argument has just made me want milkshakes.

[viridian.livejournal.com]

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

Yes, they are.

[trinityvixen.livejournal.com]

God, I love that icon :)

[viridian.livejournal.com]

I love this one just a little bit more.

[trinityvixen.livejournal.com]

Heee!

ahem...

[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.

Re: ahem...

[viridian.livejournal.com]

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

Re: ahem...

[hslayer.livejournal.com]

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

Strawman, will you introduce yourself

[trinityvixen.livejournal.com]

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."

Re: Strawman, will you introduce yourself

[edgehopper.livejournal.com]

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.

Re: Strawman, will you introduce yourself

[bigscary.livejournal.com]

Marriage is a basic human right, according to Loving.

Re: Strawman, will you introduce yourself

[edgehopper.livejournal.com]

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.

Re: Strawman, will you introduce yourself

[trinityvixen.livejournal.com]

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

Re: Strawman, will you introduce yourself

[edgehopper.livejournal.com]

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

Re: Strawman, will you introduce yourself

[trinityvixen.livejournal.com]

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.

Re: Strawman, will you introduce yourself

[bigscary.livejournal.com]

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.