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Old 07-13-2010, 04:58 PM
 
1,054 posts, read 1,836,883 times
Reputation: 699

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Quote:
Originally Posted by pheaton View Post
Ok. yes. . Kind of. But the courts rely on precedent and the jurisprudence we inherited from from the English courts. What I'm saying is that at common law there are liberties that can only be taken away by legislation. Gay marriage recognition can't be taken away, because it never was recognized. It can only be added, which some states have done. But it can't be forced upon everyone and every state. That's backwards.
You could also say that no Hispanics are allowed to drive, because in the consitution we are all created equal which applies to rights and not priviledges.


Quote:
Originally Posted by pheaton View Post
Ok. . I can kind of see this, but declaring sexual preference as a protected class is a big wowie. Heterosexuals aren't a protected class, so this is very very unlikely.
Heterosexuals don't hire gays because of 'morals'. Catholic charities is trying to enforce legislation in our state that allows health care workers the right to not treat them on the basis of morals.

Quote:
But taxes and other benefits are the whole reason states have defined marriage as one man one woman. . It's the main reason DOMA exists. I don't understand how it's irrelevant? I mean gay people want to be recognized, but for what purpose if not benefits? Just to be recognized? They can do that by getting married in a state that recognizes it. It's easily overcome.
The same can be said for christians in the middle east. They don't have to live there, they should just move.
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Old 07-13-2010, 05:17 PM
 
Location: West Omaha
1,181 posts, read 3,653,733 times
Reputation: 477
Pheaton,

No, your understanding to the way rights work is misguided. Fundamental rights are NOT taken away or added with legislation. They are implicit in the Constitution. For example, no matter what a state legislation does it cannot negate or unduly restrict the right of privacy, the fundamental right to marry, and etc. The only way they can be usurped is via Constitutional Amendment.

And it will be up to the court to determine whether gay marriage falls within the implicit rights laid out in the constitution. That's it. That's the whole game. There is nothing that limits their ability to do so either. They can look at norms, public policy, fundamental fairness, whatever. Whether or not gay marriage was available at common is completely irrelevant. At common law, slave owners were not punished for their behavior and blacks had no rights. So common law, in this context, is not dispositive.

As far as the scrutiny issue, I was a little unclear when I mentioned "protected class." What I meant to point out was that the court can find that the state cannot discriminate against a person for being a member of one sexuality or another. And in that vein, heterosexuals would also gain protection. Meaning the state couldn't discriminate against heterosexuals either. The same thing happens in race. Whites are protected under equal protection just as minorities. Using the term "protected class" is somewhat of a misnomer, but it means a state can't discriminate on the basis of someone being a member or not a member of the given class. So, now, for example, race is a classification which the state cannot lawfully discriminate with respect to (unless meeting strict scrutiny standards). Same goes for sex, but to a lesser degree (intermediate scrutiny). The court could quite easily do the same thing for sexuality. And while I doubt it would receive strict scrutiny I do believe it would receive intermediate scrutiny, which is a very big burden on the state.

As far as benefits go, ya, it is ultimately about benefits (although I think a lot of it is a basic matter of respect and principle too). But a way in which the state supplies benefits must also be constitutionally sound, so there really is not distinction at all. And all you really have to do is look at interracial marriage. Do you think southern states would be allowed to provide for legal marriage to interracial couples but not supply them with the basic benefits that single race marriages receive? No way in heck! Heck, the stripping of social security benefits can raise constitutional issues (and has). Or the asymmetric supplying of state welfare benefits can raise a constitutional issue (and has).



Calvinist,

At least pheaton is actually attempting to have this argument at an honest intellectual level. You're simply trying to split hairs and make the claim they have the same rights you do and that you don't have the right they are seeking. Well, you understand that those two arguments actually contradict themselves don't you?

In one breath you say they have the same rights that you do because they are free to marry someone of the opposite sex.

Yet in the next breath you claim that if given the right to marry someone of the same sex then they would be getting a right that you don't have. But why wouldn't you have the right to enter into a gay marriage? My guess is you will argue because you're not gay. Umm, well, then that simply shows that because they're gay they don't have the same right as you do, as they, using your rationale, won't be able to enter into a heterosexual marriage because they're not heterosexual. You can't have it both ways.

At a very basic level, how would they be given a right you wouldn't have access to?? They would be given a right to enter into a gay marriage. You would also have that right. Having a right does not require that it be used.
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Old 07-14-2010, 07:53 AM
 
6,486 posts, read 5,692,261 times
Reputation: 1272
Quote:
Originally Posted by Omahahonors View Post
Then the rights of christians in Iran are not being violated. They live with the same rules as everybody else, but they chose to live that way.

We're not in Iran, are we?


Quote:
Originally Posted by mattpoulsen View Post
Calvinist,

At least pheaton is actually attempting to have this argument at an honest intellectual level. You're simply trying to split hairs and make the claim they have the same rights you do and that you don't have the right they are seeking. Well, you understand that those two arguments actually contradict themselves don't you?
I'm demonstrating the futility of your argument. The common theme is to just assume that homosexuality is a condition or trait that a person is born with, and they are victims if their lifestyle is not granted to them so they can have the exact same things a hetero person can have, only their own version of it.

I disagree--I think it's a choice. Same as many other things we choose to do in life. If you want to live that way, fine--go for it. America should not have to change the way we view marriage because 2 men like each other.
Quote:

In one breath you say they have the same rights that you do because they are free to marry someone of the opposite sex.
And...?
Quote:
Yet in the next breath you claim that if given the right to marry someone of the same sex then they would be getting a right that you don't have.
I don't have that right. I also don't have the "right" to marry for love.
Quote:

But why wouldn't you have the right to enter into a gay marriage? My guess is you will argue because you're not gay.
Nope. It's not legal.
Quote:
Umm, well, then that simply shows that because they're gay they don't have the same right as you do, as they, using your rationale, won't be able to enter into a heterosexual marriage because they're not heterosexual. You can't have it both ways.
huh? Again....currently, the law does not discriminate based on sexual preferences. I was not asked my preference when I got my marriage license.
Quote:
At a very basic level, how would they be given a right you wouldn't have access to?? They would be given a right to enter into a gay marriage. You would also have that right. Having a right does not require that it be used.
Right now, nobody can marry a person of the same gender. Whining about not being able to and calling it discrimination is dishonest, because to be discriminated against, someone has to be able to do it--and right now nobody can.

Last edited by Calvinist; 07-14-2010 at 08:03 AM..
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Old 07-14-2010, 10:04 AM
 
Location: Chicago
3,340 posts, read 8,712,679 times
Reputation: 1215
Quote:
Originally Posted by Calvinist View Post

I disagree--I think it's a choice. Same as many other things we choose to do in life. If you want to live that way, fine--go for it. America should not have to change the way we view marriage because 2 men like each other.
It is not a choice get that through your head!!! When did you "choose" to be straight, when were you given the freaking option? Huh? Well you must have at some point since I obviously was given a choice to be gay.... oh wait I wasn't!!!! EVER!!!!! You don't even realize what its like do you? Who in the freaking world would choose this? Honestly who would choose the potential to be rejected by the people they care about? I never wanted to be gay and for you to say its a choice is ignorant and heartless. Very freaking heartless. When I rejected myself I would suffer from massive headaches and depression. I would cry at night because I couldn't change and I wanted to so freaking desperately! You know what? I hope that one of your children or someone you care about is gay. I really do. Maybe then you would actually understand at least a little. Maybe then you would actually grow a heart.
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Old 07-14-2010, 11:32 AM
 
Location: Omaha, NE
1,048 posts, read 2,145,967 times
Reputation: 220
Quote:
Originally Posted by Omahahonors View Post
You could also say that no Hispanics are allowed to drive, because in the consitution we are all created equal which applies to rights and not priviledges.
But being hispanic doesn't affect your ability to drive, nor does it affect your ability to meet the requirements to dirve. But at common law, the ability to be married and to meet the requirements of a marriage is the complementary nature of male and female. This is why anti-miscegenation laws were overturned, because being black didn't affect your ability to be married, because you could still meet the male/female requirement.


Quote:
Heterosexuals don't hire gays because of 'morals'. Catholic charities is trying to enforce legislation in our state that allows health care workers the right to not treat them on the basis of morals.
That's fine. If they are the best person for the job, they should be hired. If they need healthcare, they should get it. There area laws that already designed to protect that. I doubt that sexual preference comes up in many interviews.
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Old 07-14-2010, 12:05 PM
 
Location: Omaha, NE
1,048 posts, read 2,145,967 times
Reputation: 220
Quote:
Originally Posted by mattpoulsen View Post
Pheaton,

No, your understanding to the way rights work is misguided. Fundamental rights are NOT taken away or added with legislation. They are implicit in the Constitution. For example, no matter what a state legislation does it cannot negate or unduly restrict the right of privacy, the fundamental right to marry, and etc. The only way they can be usurped is via Constitutional Amendment.

And it will be up to the court to determine whether gay marriage falls within the implicit rights laid out in the constitution. That's it. That's the whole game. There is nothing that limits their ability to do so either. They can look at norms, public policy, fundamental fairness, whatever. Whether or not gay marriage was available at common is completely irrelevant. At common law, slave owners were not punished for their behavior and blacks had no rights. So common law, in this context, is not dispositive.

As far as the scrutiny issue, I was a little unclear when I mentioned "protected class." What I meant to point out was that the court can find that the state cannot discriminate against a person for being a member of one sexuality or another. And in that vein, heterosexuals would also gain protection. Meaning the state couldn't discriminate against heterosexuals either. The same thing happens in race. Whites are protected under equal protection just as minorities. Using the term "protected class" is somewhat of a misnomer, but it means a state can't discriminate on the basis of someone being a member or not a member of the given class. So, now, for example, race is a classification which the state cannot lawfully discriminate with respect to (unless meeting strict scrutiny standards). Same goes for sex, but to a lesser degree (intermediate scrutiny). The court could quite easily do the same thing for sexuality. And while I doubt it would receive strict scrutiny I do believe it would receive intermediate scrutiny, which is a very big burden on the state.

As far as benefits go, ya, it is ultimately about benefits (although I think a lot of it is a basic matter of respect and principle too). But a way in which the state supplies benefits must also be constitutionally sound, so there really is not distinction at all. And all you really have to do is look at interracial marriage. Do you think southern states would be allowed to provide for legal marriage to interracial couples but not supply them with the basic benefits that single race marriages receive? No way in heck! Heck, the stripping of social security benefits can raise constitutional issues (and has). Or the asymmetric supplying of state welfare benefits can raise a constitutional issue (and has).
I see what you are saying. But, the reasons they banned interracial marriage and the reason they do not recognize gay marriage are two totally different things.

1. Under the common law we inherited there was only one kind of marriage and the main requirement of that marriage was the complimentary nature of man and woman. Because of that no mention of sexual preference was necessary. Also because of that, no mention of race was necessary.

2. So fastforward to 1661 (thereabout). Someone decided that they didn't want black people and white people getting married, because marriage leads to kids (because marriage is man/woman). It was a racial purity tactic, because they didn't want black children growing up and becoming functioning members of society. . So how do you stop that? You pass a law making it illegal, the penalty is the white person becomes a slave.

3. Go forward again. The court finally decided. Wait. . Under common law the only requirement is that male/female compliment. Race doesn't affect that. You are violating these people's fundamental rights to marriage. Legislation overturned.

You can not make that same declaration about gay marriage, it's not the same as being banned, it's not the same as illegal, it's not for the same rason as anti miscegenation laws.

So, with that in mind. At common law, gay marriage is not recognized, it doesn't meet the requirements of a marriage. So a state technically doesn't have to define their constitution as one man one woman. It's already assumed.

So you are correct, you can't add or take away rights by legislation, but you can add benefits, you can add recognition of a certian group. Some states have done this, perfectly legal. I may not agree with it, but I have to accept it.

But the states that have clarified their law to the common law assumption of marriage are not voilating any law and they should not be able to be forced into turning their back on common law, or forced into providing benefits.
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Old 07-14-2010, 04:25 PM
 
Location: West Omaha
1,181 posts, read 3,653,733 times
Reputation: 477
We don't know if those states are in violation the Constitution because the Supreme Court hasn't ruled on it yet. I'm not saying they can't do it now, they can. But if the Supreme Court defines marriage to include the right to gay marriage then all the states that are banning gay marriage will be violating the Constitutional rights of gays. That's all I've been saying.

And, yes, there was a purpose behind making anti-interracial marriage laws unconstitutional. But there is no reason that the Supreme Court can't deduce the same thing for gays. The Court could simply conclude that gays should be allowed to marry other gays and there is no good reason to disallow it and the important aspect of marriage that should be fostered is not child bearing per se, but rather a stable, loving family unit. They may find that the economic stability marriage provides, and the lessened promiscuity it provides are good enough reasons to allow it. Not to mention that assuming gays do not have a choice, the inability to marry will not impact their childbearing as they won't be all of a sudden entering into heterosexual marriages. You add all of it up and the only logical reason (not my logic) behind a gay marriage ban is based on morality. That's the only thing that is satisfied by banning gay marriage, the morality of certain religious groups. Well, the court has in prior cases came out and basically said that the reason for a ban on an activity must go beyond mere moral purposes. Meaning, you couldn't just ban gay sex because a majority of the population thought it was immoral. To me, gay marriage is no different. Currently, a majority of the population in many states thinks its immoral and in the end that is why its banned. The other reasons simply don't materialize and if they apply anything more than rational basis review those other reasons will not pass constitutional muster.

My whole point with all this is that the Supreme Court has the final say. Period. And there is nothing that limits their decision. They could rule for or against it. I predict they will eventually rule for gay marriage, but I could be wrong. However, the idea that states can somehow get around that binding decision is simply wrong. Just as states can't avoid Brown v. Board of Education.

Calvin,

I understand your opposition to gay marriage, although I disagree with it. And that's fine. I don't have a problem with you arguing the policy behind it, again, even though I disagree with your conclusion. My point is simply the truthful representation of how the Constitution, Federal Government, and States interact. That's it. I'm not here to argue whether or not its a choice or not. Although I don't think it is a choice. But when we start arguing about that then that's touching on WHAT the Supreme Court will consider if and when they hear the case. And that is a meritorious discussion. I am simply saying that short of a U.S. Constitutional Amendment on the issue the Supreme Court gets the ultimate word.

Last edited by mattpoulsen; 07-14-2010 at 04:36 PM..
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Old 07-14-2010, 07:29 PM
 
Location: Omaha, NE
1,048 posts, read 2,145,967 times
Reputation: 220
Quote:
Originally Posted by mattpoulsen View Post
We don't know if those states are in violation the Constitution because the Supreme Court hasn't ruled on it yet. I'm not saying they can't do it now, they can. But if the Supreme Court defines marriage to include the right to gay marriage then all the states that are banning gay marriage will be violating the Constitutional rights of gays. That's all I've been saying.

And, yes, there was a purpose behind making anti-interracial marriage laws unconstitutional. But there is no reason that the Supreme Court can't deduce the same thing for gays. The Court could simply conclude that gays should be allowed to marry other gays and there is no good reason to disallow it and the important aspect of marriage that should be fostered is not child bearing per se, but rather a stable, loving family unit. They may find that the economic stability marriage provides, and the lessened promiscuity it provides are good enough reasons to allow it. Not to mention that assuming gays do not have a choice, the inability to marry will not impact their childbearing as they won't be all of a sudden entering into heterosexual marriages. You add all of it up and the only logical reason (not my logic) behind a gay marriage ban is based on morality. That's the only thing that is satisfied by banning gay marriage, the morality of certain religious groups. Well, the court has in prior cases came out and basically said that the reason for a ban on an activity must go beyond mere moral purposes. Meaning, you couldn't just ban gay sex because a majority of the population thought it was immoral. To me, gay marriage is no different. Currently, a majority of the population in many states thinks its immoral and in the end that is why its banned. The other reasons simply don't materialize and if they apply anything more than rational basis review those other reasons will not pass constitutional muster.

My whole point with all this is that the Supreme Court has the final say. Period. And there is nothing that limits their decision. They could rule for or against it. I predict they will eventually rule for gay marriage, but I could be wrong. However, the idea that states can somehow get around that binding decision is simply wrong. Just as states can't avoid Brown v. Board of Education.
It'll be interesting. I see what you are saying, but like I said common law has some precedence and any good lawyer will argue that point. I think that fact is one of the reasons the SCOTUS has shot down requests to hear cases so far. They recognize both the precedence of common law and the precedence of the lower court rulings. If they found an outright violation of the constitution I think they would have jumped all over it.

In any case. Law is going to stay where it is for sometime. The recent district court ruling will be appealed and likely over turned. Between the left leaning judge and the weak defense put up by a sympathetic federal attorney will not hold. Even if a outright amendment were passed to the US Constitution it would be tied up in courts for a long time.

The Supreme Court does have the final say, but I think it would be a tragedy if they ruled in a way that forces the states to recognize gay marriage, not just because I'm personally against gay marriage, but because it really damages the right of the states to govern themselves and opens the door to a loss of state rights on other issues.. I think this is also a huge reason why the SCOTUS has avoided this. They are not willing to take away an assumed state right based on something that is really just a desire by a relatively small group of people.
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Old 07-16-2010, 02:02 PM
 
Location: I think my user name clarifies that.
8,293 posts, read 23,201,184 times
Reputation: 3889
Quote:
Originally Posted by Omaha Rocks View Post
What's the point? I thought homosexuals want equity and respect. This would seem as though you're demanding preferential treatment.

I'm also curious as to exactly how a neighborhood goes about officially becoming a "Gay District."
Whoever left this snotty little message for me, in response to post #2 on this thread, can take a flying leap. Put on your big girl panties and grow up.

If homosexuals want equality, then having a Gay District is the polar opposite of the desires that are being claimed.

Quote:
YOU REALLY HAVE TURNED OUT TO BE A VERY RUDE PERSON O.R. YOU USED TO BE QUITE NICE.
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Old 07-16-2010, 05:20 PM
 
138 posts, read 219,101 times
Reputation: 112
Look yall.
Here's how this works...

• Gays congregate in one area. Get housing, open businesses.

• There's a preponderance of gayness, lots of rainbow flags, things become cleaner somehow.

• Gay district!

You dont plan it, you dont assign it. It's just a thing that happens.


The End.
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