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October 25, 2006

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» Pretty amazing from aTypical Joe: A gay New Yorker living in the rural south.
Geoffrey Stone in the University of Chicago Law School Faculty Blog: Among the many intriguing facets of this decision is that the vote was 4-to-3. The three dissenting justices did not argue that gays and lesbians do not have a... [Read More]

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F.

You seem to think that there is an analogy between black people and gays but you can't choose to be black.
And spare me the deterministic arguments because you can argue that people;s DNA force them to be polygamists. Is there a long path of civil liberties for polygamy or polyandry to go ?
The anser lies in the fact that you can not evaluate these different status and the black analogy is simply unfounded.

Pro Gress

Ah yes, progress. Isn't it wonderful? Let's all get teary-eyed about how much consciousness-raising we've all done.

What happened to liberal principle #whatever from your last long post, Professor Stone? Remember democracy? Oh, yeah, I forgot. Democracy is only ok if the people vote for the things you like -- like some homosexual ceremony that they try to call marriage. If the people won't authorize such a thing (as they have vociferously refused to do so in several States) it's perfectly ok for a group of 7 (or 9) liberal lawyers to step in and fix it.

I don't want to be governed by that group of law students you had dinner with. Most Americans don't. If New Jersey wants gay whatever-you-call-it, let them have it. But I don't think a 4-3 vote on their Supreme Court is any expression of what New Jersey wants.

golddog

Democracy is not synonymous with majoritarianism. The government, no matter how many people vote for it, has the power to stop two individuals from exercising their right to marry.

The judges are keeping the government's authority within its legitimate bounds. I thought conservatives were for limited government?

golddog

Oops . . .

The government, no matter how many people vote for it, [does not have] the power to stop two individuals from exercising their right to marry.

Erasmussimo

Mr. F, your distinction between blacks and gays based on volition is irrelevant to the issue. Let us suppose that scientists produced a treatment that would convert any person from any race to any other race. Would such a treatment render racism justifiable? Of course not. Denying a person a privilege based upon factors irrelevant to the privilege is wrong. In another topic, somebody presented a cogent argument that society can properly deny marriage privileges to gays based on society's desire to insure that children are raised well. However, this argument raises many difficult consequent problems. Denying marriage privileges because of homophobia is wrong.

Mr. Pro Gress, you misunderstand an important principle of democracy: democracy only functions when the fundamental rights of minorities are protected from the majority. Without such protections, democracy quickly becomes tyranny. If Democrats win 51% of the vote in the upcoming election, can the Democratic majority pass a law that all Republicans be executed? They could, in which case the only thing standing between Repubicans and death would be the courts.

Of course, the determination of what constitutes a "fundamental right" is a difficult and tricky issue, requiring the careful deliberations of erudite professionals steeped in all aspects of this issue. That's why we have courts. Yes, courts sometimes overrule the wishes of the majority -- that's what they're supposed to do! If we want majority rule, we don't need courts. Courts exist to provide a safety check AGAINST the majority.

BAC

Eras,

Did you read the opinion? It expressly found that there is no "fundamental right" to same sex marriage, but reaffirmed that there is a "fundamental right" to marriage between a man and woman.

Pro Gres is right, the judges have decided to "raise the consciousness" of the people of New Jersey, whether they like it or not.

Erasmussimo

Mr. BAC, let us be precise in our terminology. We're talking about marriage only in the context of its legal benefits. Viewed in this manner, there is no fundamental right for ANYBODY to have those legal benefits. The Constitution does not mandate that married people have a fundamental right to tax benefits or visitation rights in hospital or special insurance treatment. We're talking about privileges, not rights. Thus, the New Jersey court's finding that there is no fundamental right to same-sex marriage seems pointless to me.

Moreover, the decision does not make any statements regarding "raising the conciousness" of anybody; I therefore find your conclusion that the court decided to "raise the consciousness" of the people of New Jersey to be without foundation.

LAK

I love how the uncomfortable conservative squirms when constitutional rights are found to trump majority bigotry, as they were designed to do.

What's in a word? Apparently a lot of symbolism and not much else, but enough to get a political carve out. The substance of the holding is what counts. Gay people living together monogamously as a family have the same entitlement to the rights and presumptions that go along with marriage as do heteros, and it makes perfect sense. They already live together, they alrady have families and raise children, they have the same succession issues, the same power of attorney issues, the same divorce issue, the same custody issues, the same tax issues, as hetero couples.

I'm so pleased that social institutions, especially institutional bigotry, must endure the repopulation of the earth, as in 100 years with a fresh population, the sort of bigotry that exists today on this issue will seem as the bigotry involved in slavery seems to us (well, some of us). And you can watch this particular unsavory social institution crumble right before your eyes on this board. I love it!

BAC

Eras,

Thanks. I think we agree that the opinion deals with legal benefits, not fundamental rights.

In that context, there is something in the opinion that puzzles me. The opinion says that "committed" homosexual couples are entitled to the same legal benefits as married heterosexual couples. But what about "committed" heterosexual couples? No matter how "committed" a heterosexual couple is, if one partner wants to adopt the other partner's last name (for example) a court action is required, where one would not be required for a married heterosexual couple. Are we discriminating against "committed" heterosexual couples by not providing them the same legal benefits as "committed" homosexual couples? How do we determine whether a homosexual couple has reached the level of "commitment" that would require they have the same legal benefits as a married couple?

LAK

Come opn BAC, stop overthinking. "Committed" quite obviously means those couples who would get married (if they could). The ones who would vow before their God, or state, or community that they intend on being together forever. Heteros can get married. Becasue Gays can't, "committed" quite obviously means those couples who would marry.

BAC

Thanks LAK. But how does your idea work in practical terms? How does the state know which homosexual couples would choose to get married if they could?

Would the homosexual couple file some paper with the state by which they would opt in to "marriage" benefits? If so, would you make this type of filing available to heterosexual couples that preferred not to get married?

Let's Keep On Slandering Blacks By Insinuating They're Just Like Gays

There is no analogy between black and gays, except in the minds of those who think everyone is equally "oppressed".

LAK

Uh, yea, it's called marriage. You know, how hetero couples have to sign their marriage liscense etc.? Or you can call it a domestic partnership for all I care, but I'm in to substance over form. You register down at the clerks office, jsut like you do when you get married. Same process of differentiating between married and unmarried couples.


Ya get it BAC? Ya see how you are overthinking the issue to make something out of nothing? You are tryingto add a layer of procedure where none need exist whatsoever. It's kind of funny.

BAC

LAK,

I don't think I am the one adding the layer of procedure, it is the NJ court.

The opinion seems to create a distinction between being "married," which is something that can be denied to homosexual couples, and having the same legal rights as someone who is "married," which is something that cannot be denied homosexual couples. My questions were intended to tease out whether this distinction is at all tenable, and you seem to agree it is not. Am I wrong?

Erasmussimo

Yes, BAC, there is definitely a distinction here, if only because 'married' in the broad sense has no legal import. In the legal sense, there is only a set of privileges attached to 'married'. I read the decision as saying that this set of privileges cannot be denied to commited homosexual couples who are unmarried.

LAK

Well just the word "marriage" can be denied, not the substance. Whatever procedure one has for differentiating between married and unmarried hertero couples would be the exact same to distinuguish between whatever you want to call gay marriage.

There is no complexity there. The politcial issue is simply with regard to the use of the word "marriage." The potential difficulties of defining what is and isn't a commited couple is the exact same for heteros and homos, and your attempt at creating some kind of mysterious complexity is indicative of your biases.

wordsmith

The word "marriage" really obfuscates this issue and only serves to inflame those who are excluded from it and those who want to keep it for themselves.

What the state confers upon people IS a civil union -- and it should be conferred on whatever couples are committed enough to want to be viewed and treated as a unit by the state. If the word "marriage" is the problem (which it obviously is as some people view marriage as a religious, not a civil, institution) let's leave it to the religions. The state should call the unions it confers what they really are -- civil unions, whether made up of hetero or homosexual couples.

BAC

The opinion at issue said:

"We are mindful that in the cultural clash over same-sex marriage, the word marriage itself -- independent of the rights and benefits of marriage -- has an evocative and important meaning to both parties."

Eras and LAK -- would you really be comfortable with a regime where "marriage" is exclusively reserved for heterosexual couples but homosexual couples, by filing some notice with the state, could have access the same legal benefits as a married couple? If so, I think you are taking a far more moderate position than others on the left.

LAK

So long as the only difference is the name, I certainly don't care. But I understand why some would. If I had my choice, I'd just call it all marriage, casue that's what it is, people choosingto live togther in a fmaily. But again, I'm a man of substance over form. Labels are not important to me. But I understand and sympathize with the argument that even a different name smacks of bigotry and second-class citizenship. That's far less important than the legal substance of the differentiation, which must be zero.

Your Conscious

The tax laws should be altered to provide that heterosexual, married couples who have produced children and who stay married and raise the children well should pay zero federal income taxes.

As it is, we who try to do the right thing pay 15% of our income to the federal government, which uses our money, in part, to prop up non-contributing members of our nation, with their 12 [future criminal] kids--and then we good folks have to struggle to buy food for ourselves while raising children who can contribute something other than violent crime to society. All the while we are told we should feel guilty about having the great fortune to work 60 hours a week for enough to barely pay the mortgage on our smallish houses in mediocre neighborhoods, instead of drinking beer on our front porches all day sans shoes.

LAK

Hey bigot,

I think you mean "Your Conscience" not "Your Conscious." "Conscious" is an adjective meaning having consciousness. "Consicence means yor ineer policeman, yor super-ego.

If you are going to be an ignorant racist bigot, you should try to at least sound somewhat intelligent, especially on this board, where brillaint bigoted racists can be found in droves.

LAK

And perhaps you are in the 15% tax bracket because you aren't quite smart enough to distinguish between those who really reap the benefits of your tax dollars and those who you choose to hate out of ignorance and fear.

If you want to point fingers, it'll have to be at retirees, shoeless or not, as SS is the biggest expense. Next you can point to large corporate empolyers like Walmart who don't provide their employees with health insurance, and insuracne companies who won't insure high risk patients, so the governemnt is ultimately require to pay for their health expenses.

Then you should point your finger at the military industrial complex, which reaps billions in profit each year off of your tax dollars to wage bogus wars.

Somewhere down the line, you can point to the idle poor, but you have a lot of pointing to do before then.

Erasmussimo

First off, LAK, I again protest at your ugly phrasing. While it is certainly appropriate for 'Your Conscious', the other participants in this discussion have offered reasonable arguments (many of which I disagree with). Calling them bigoted strikes as incorrect and unfair.

To answer BAC's question, I would prefer to see government get completely out of the marriage business and instead address only 'civil unions'. Yes, 'marriage' is the traditional term, but tradition never had to deal with the reality of homosexual couples. So let's change things in a way that's fair without outraging the sensibilities of our more conservative brethren. Let's reserve 'marriage' for religious purposes. Let's amend our laws to address 'civil unions' as legal entities no different in fundamental nature from corporations or partnerships, to which we attach certain legal privileges and constraints.

LAK

Eras,

Which ugly phrasing? I haven't called anyone a bigot other than the guy who posted ignorant racist posts. It was a tongue and cheek slap at U of C grads to say they're plenty of brilliant bigoted racists amongst us. I wasn't addressing anyone in particular, certainly not BAC. He's a good guy. He knows it, as do I.

You shouldn't have such concern with my hotheaded language. It's just a blog. And its just words. A distraction from document review you know?

BAC

Personlly, I would take LAK calling me a "brilliant racist bigot" as a compliment (and I could only hope he was thinking of me when he posted it).

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