Proposition 8 "fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples..."
I'd be curious to see if the courts will apply that same argument to other laws.
For instance, will/should the courts eliminate all marriage benefits on the grounds that marital subsidies simply enshrine into law the notion that couples are superior to singles?
I'd also be curious to see if gay marriage supporters believe the courts made the correct decision, and if they would apply the same logic to other situations.
You're using very simplistic and very wrong definition of what equality and discrimination is.
For example, denying gay marriage discriminates against gays by denying a specific, identifiable group (gays) the right to marry that is given to everyone else.
You're trying to claim that the same logic applies to e.g. laws against smoking which, in your naive interpretation, "discriminate" against smokers. The crucial and not so subtle difference is that law against smoking bans a behavior. It would be discrimination if we had laws that prohibits smokers to marry.
So yes, the courts made the right decision I do want the courts to apply constitution in the future to abolish laws that violate mine and yours constitutional rights, equality being among them.
Using your reasoning serial killers are a minority and laws against killing are discrimination.
Gays have the right to marry an opposite sex partner. They may not prefer this, but they have the right to do it. Thus, laws prohibiting same sex marriage discriminate against people who prefer same sex relationships.
Similarly, renters have the right to get a mortgage subsidy by buying a home. They may not prefer it, but they have the right to do it. Thus, the mortgage subidy discriminates against people who prefer rentals.
Should we therefore eliminate mortgage subsidies (or any number of other laws which favor one preference over another) subsidies based on the same logic?
Gays have the right to marry an opposite sex partner. They may not prefer this, but they have the right to do it. Thus, laws prohibiting same sex marriage discriminate against people who prefer same sex relationships.
The right in question is not the generic right to marry someone, but rather to marry the person you want to marry (if that person will have you). And it's pretty settled at this point, since the definitive ruling was over 40 years ago; Loving v. Virginia struck down "everyone is equally free to marry someone of the same race as themselves" as discriminatory, and this case is now simply following the logic to strike down "everyone is equally free to marry someone of the opposite sex".
As to your mortgage examples: marriage is and has long been held in US law to be a fundamental right. Renting a house, meanwhile, is not and has not been held to be such a fundamental right. And specifically in the case of laws which subsidize buying but not renting, such "discrimination" is allowable so long as it serves a compelling government interest. Proposition 8 was found not to serve any such interest; its sole purpose was to make law out of the religious beliefs of a particular group, and this is not something government legitimately can or should be doing.
So what is the compelling government interest in the case of, e.g., mortgage subsidies? The common justification I've heard is that home ownership is more likely than renting to generate positive externalities (e.g., homeowners are more likely to improve their communities).
If increased probability of positive effects is sufficient rational basis for government acts, then it is very easy to come up with a rational basis for supporting straight marriage (but not gay marriage) based on positive externalities generated for children (e.g., straight couples are more likely to have children than gay couples).
I came up with a rational basis given only a few minutes of thought. I'm now a bit surprised that the judge couldn't come up with such an obvious rationale. It's almost a if he was making a political decision rather than a legal one.
I'm now a bit surprised that the judge couldn't come up with such an obvious rationale. It's almost a if he was making a political decision rather than a legal one.
The argument presented to the judge was exactly the basis you've pointed out: that the sole purpose of marriage is to encourage procreation and to provide a stable environment in which to raise children.
If you'd actually read the ruling, you'd know that the evidence presented for this was flimsy at best; it was not demonstrated that heterosexual parents do a better job of raising children than homosexual parents, and it was freely admitted that marriage licenses are granted to heterosexual couples who are unable or unwilling to procreate. Thus the argument was rejected as legally unproven, and the ban on homosexual marriage was found to have no legally acceptable basis.
(and again the parallels with racial bans are striking: it was argued, once upon a time, that interracial couples would produce inferior children and that the government thus had an interest in preventing such couples from marrying. Such arguments were similarly unproven, and ultimately unprovable)
If you'd actually read the ruling, you'd know that the evidence presented for this was flimsy at best;...
The evidence doesn't need to be anything other than flimsy to constitute a rational basis. Courts are not supposed to evaluate the facts at all, but should merely determine if there is any rational basis for the law given the most generous possible interpretation of the facts.
"[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data."
If the job of the courts was factfinding, a huge number of laws would be eliminated. For example, could you prove in court that the Bush tax cuts, obamacare, minimum wage laws, gun control laws, or any other law are beneficial? I rather doubt it.
As long as one can imagine a scenario in which health insurance is related to health, Obamacare passes the rational basis test. And as long as one can imagine a scenario in which straight couples make better parents than gay couples (even if only in a probabilistic manner, i.e. 95% of straight couples are fertile compared to 0% of gay couples), then Prop 8 also has a rational basis.
Don't conflate different concepts. Rational basis review is a whole 'nother beast.
The ruling correctly states that, due to the nature of Proposition 8, strict scrutiny would normally be the appropriate level of review. It concludes, however, that strict scrutiny isn't needed because Proposition 8 doesn't even survive rational basis review, and goes through each proposed rationale:
1. Heterosexual marriage is traditional. As Judge Walker points out, this fails as a rational basis since "the state must have an interest apart from the fact of the tradition itself."
2. Overturning Proposition 8 would phase in a social change. But California has already, in the past, permitted same-sex marriages, so: "The evidence shows that allowing same-sex couples to marry will be simple for California to implement because it has already done so; no change need be phased in."
3. Opposite-sex parenting is better than same-sex parenting. This fails because California already permits same-sex couples to adopt and raise children, and because "Proposition 8 does not affect who can or should become a parent under California law."
4. Proposition 8 protects the free-speech rights of those who oppose same-sex marriage and want to teach their children to be opposed to it. But Proposition 8 is only concerned with permitting or forbidding certain marriages, not with allowing speech or education concerning marriage: "as a matter of law, Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex."
5. Homosexual and heterosexual relationships are different, and must be classified differently. This fails because "same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same."
There's also an alleged "catch-all" interest. I'll just quote that one in full:
Finally, proponents assert that Proposition 8 advances “[a]ny other conceivable legitimate interests identified by the parties, amici, or the court at any stage of the proceedings.” Doc #605 at 15. But proponents, amici and the court, despite ample opportunity and a full trial, have failed to identify any rational basis Proposition 8 could conceivably advance.
The important thing to remember in reading the above is that rational-basis review, while not particularly demanding, is not the same as no review. "I say there's a rational basis, therefore there is" doesn't hold up in court; you'll have to make an argument and it will have to actually make sense. The arguments advanced for a rational basis for Proposition 8 failed -- they either did not assert a valid basis for legislation or were contradicted by other established law or by Proposition 8 itself.
It's fascinating that they only used rational basis instead of intermediate or strict scrutiny. While precedent currently places sexual orientation in the realm of rational basis, I think that an extremely strong case could be made that a law concerning the right of gays to marry involves a suspect classification. All of the following criteria appear to be true:
- The group has historically been discriminated against, and/or have been subject to prejudice, hostility, and/or stigma, perhaps due, at least in part, to stereotypes.
- The group is a "discrete" or "insular" minority.
- They possess an immutable and/or highly visible trait.
- They are powerless to protect themselves via the political process. (In this case, they are subject to the tyranny of the majority.)
As far as I know, courts in the past have ruled that being gay is not an "immutable or highly visible trait." There were however some recent decisions that questioned that rationale.
Because it's not highly visible as long as you stay carefully in the closet....
It reminds me of how "don't ask don't tell" seems fairly reasonable until I imagine a bunch of soldiers away from home sitting around together, waiting for things (which they do an awful lot). Then I try to imagine navigating hundreds or thousands of hours of those conversations while somehow avoiding revealing my sexuality.
But this isn't reviewing a government action; it's reviewing a citizen initiative. It seems like the "community standards" argument must surely hold here if it does anywhere, even if the community is being irrational.
Yes, it's an citizen initiative, but once passed it is a law that is enforced by the government. When a gay couple goes to get a marriage license, it's the government that is denying them one.
It's hard to say though... given that being gay is most likely in the genes, which obviously come from a heterosexual creation. So if the gay population will always have a 10% yield in the gene pool, I don't think natural selection will have any kind of effect.
Why not? Not to sound mean, but there are plenty of places online where people could discuss this news; why does HN have to be one of them? Does this community have unique insights into Californian law or gay rights that other communities don't? Does this same news item really need to appear on every online social news site, everywhere, no matter the focus?
I guess it's possible that there are people who only read HN, and don't have any other news source whatsoever, and that those people would otherwise miss out on this bit of news—but then, I think those people have chosen to filter out other news sources for a reason :)
Edit: I'm just asking for a justification here—if it explicitly isn't Hacker News, what made you want to post it?
Statistically speaking, somewhere between 4% and 8% of the HN population will be very interested in this news. I'll bet that's a bigger percentage than actually care about Erlang, and we're always hearing about that :-)
But seriously, there is no reason, other than it being a really nice piece of news that, as a member of a community, I would like to share with the rest of that community.
(And to clarify: I didn't post it, I just voted it up :-) )
I don't think we should be allowing any argument that would also justify people posting cat pictures :) I agree that it's a nice piece of news; I just sometimes wish that HN had the same sort of #foo, #foo-offtopic division that specialized IRC channels usually do.
(And I realize—I was addressing the original poster in the context of your comment. :)
To answer your question, I posted this on HN because I felt it would lead to interesting comments. The ruling is certainly cause for celebration, but it's also one of the most publicized cases of a judge overturning a majority vote. I wanted to hear how other hackers settled the internal debate of forcefully eliminating bigotry vs. lessening government intervention.
> Statistically speaking, somewhere between 4% and 8% of the HN population will be very interested in this news
If you're using the stats I think you are, you probably mean "directly affected by" the news. As a California resident, I am very interested in this story but I don't need to see it at the top of HN.
Prop 8 has nothing to do with people’s rights. I quote from the current California Family Code Section 297.5…
Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or sources
of law, as are granted to and imposed upon spouses.
Prop 8 is just another way for the two sides of the culture war to beat each other over the head.
This ignores the federal benefits of marriage (taxation and immigration, for instance), as well as the fact that DOMA allows states to ignore gay marriages performed in other states.
As with civil rights legislation, federal laws arise out of the experimentation of states. California's move in favour of gay marriage (disgracefully late; 5 other states + DC already have it) is widely recognized as a stepping-stone to a federal ruling on the matter.
So: it's both untrue to say that gays in California have equal rights, and were it true it would be irrelevant anyway.
I suggest reading the decision which rebuts this point, or I can simply point to Brown v Board which enshrined the notion that separate institutions are "inherently unequal."
More importantly though I think you miss the extent to which the "rights" provided by the California Family Code fail to encompass the rights protected by the constitution. The right to adopt is orthogonal to the right be free from discrimination and a state sponsored determination of inferiority.
As for the culture war, I don't doubt that 100 years from now it will still be going on, under a different name, and with as much validity and import as it has today. This is not a mean or petty distinction being discussed here, but one of lasting societal influence and implication.
You have clear disdain for the debate, probably engendered by the disingenuous rhetoric on both sides, however I would urge you to put aside the cynicism for a moment and remember that this really does matter.
I’m sorry but that’s just BS. Brown vs. Board was about keeping people in separate facilities where things could never be completely equal. In that case separate is inherently unequal. Legal rights on the other hand are abstract meaning they can be equal if the law says they are.
> Legal rights on the other hand are abstract meaning they can be equal if the law says they are.
But the law does not say they're equal, as has already been pointed out to you. And yes, pointing to civil unions — which embody a subset of the legal rights granted to legally married couples — as a justification for not granting full marriage rights to homosexual couples is a perfect demonstration of the fallacy of "separate but equal" institutions.
If civil unions really were a perfectly fine substitute for legally recognized marriage, do you think the civil rights movement would have been so up in arms about Proposition 8?
This is the usual argument taken but what many fail to realize is that while a State can declare that domestic partners have the same rights under STATE laws. States cannot guarantee the same rights under Federal laws. Because the federal laws use the word marriage, domestic partners are not included and do not receive any of the federal benefits.
Declaring it marriage does fill the current gap of equal rights.
Hey Tom, you didn't seem to address the issue I brought up. :(
You stated that prop 8 has nothing to do with people's rights.
I stated that is does. When it is in effect they have none of the marriage rights under federal law. Less rights would mean that it does have something to do with people's rights.
How would you reconcile this with your statement about how "Prop 8 has nothing to do with people’s rights." ?
States have their own laws for recognizing marriage so it doesn't matter what the state itself recognizes. Thats why you dont see the words "federal law" anywhere in the plantiffs case (page 5 in case you missed it)
You are right only if you believe that a marriage certificate is equal only to the sum of it's associated legal perks. It's obvious that neither opponents nor proponents believe this.
This actually supports the judges decision based on the opinion that...
"...the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples."
White mother explains to daughter: "THEY have to use THAT drinking fountain. They AREN'T ALLOWED to use ours."
Another example: A college grants Bachelors (BS) degrees. Gay people get a IG instead. Who in their right mind wants an IG! Employers wouldn't know what they are, or bother to understand them. Since all of their friends aspire to get BS degrees, employers would think an IG must be inferior -- why would anyone in their right mind make a second label for the exact same thing, if not to discriminate?
EDIT: To the downvoter -- if you read the ruling, my examples ARE the crux of the gay marriage debate. The state is condoning discrimination simply by making a second label for the exact same thing. By rule of law they are identical, but socially they are not -- the new label is undesirable by everyone. (No married couples would switch.) Hence, simply having two labels for the same thing and forcing gay couples to use the inferior one IS discimination.
I did read the ruling and I’m sorry but it doesn’t change anything. The whole premise of the case was built on people claiming they were discriminated against but that IS ALREADY ILLEGAL IN CALIFORNIA. The question presented by the person who made the comment I responded to was “were people being denied specific rights?” and I’m sorry but they aren’t.
Then I'm sorry but you clearly don't understand Constitutional law. One of the first lines in the article is the proposal that this proposition be rendered as applicable to homosexuals as a suspect class, meaning that the law should be rendered as a judgement under strict scrutiny. The circumstances and testimony clearly supported overturning the law on the basis of strict scrutiny.
He didn't post it. Also, it bumped 'Depression Era Color Photos' out of the number two spot. Doesn't seem very 'HN' either, but I think that's what the up-voting is for.
I am an ardent supporter and promoter of freedom, civil liberty. I've found that most computer geeks are, way out of proportion to the population at large.
I think it may be HN material if you actually read the brief. Very interesting (if you can spare the time to read ~130 pages), especially the back and forth in the "expert" testimony (the opposing council's expert was eventually deemed to be unqualified to offer any relevant testimony and mostly selectively quoted texts during trial).
I am likely a minority voice on HN on this topic and with so many strong feelings about this I will likely be down-voted for these arguments, but in the spirit of bringing out another side to the debate so that a full discussion can happen, I'd like to bring up a few thoughts against the court-ruling.
I rarely hear about how state-approved same-sex marriage will impact freedom of religion. Personal feelings aside, religous groups should have the freedom to practice their religion according to their conscience. They each have a right to preach their interpretation of right and wrong, and shouldn't be forced into the current policially correct view.
For example, I could see a pastor or rabbi or other religous leader feeling uncomfortable about marrying 2 people of the same sex, and then being sued for a civil rights violation with the full force of the state to back up the couple's lawsuit.
Another example that comes to mind is religous colleges that offer married student housing being forced to let a same-sex couple live in the housing; in this situation the school could be sued for discrimination and potentially lose tax-exempt status unless they comply.
These 2 examples are compelling to me because they are realistic scenarios post-today's ruling and they represent a power-grab by the government over a religion's conscience-driven decisions about what is right and wrong. We shouldn't hand over these religious decisions to bureaucrats.
It seems that by officially sanctioning same-sex marriage, we are heading towards a collision course between church and state, which is troubling from a religious-freedom perspective. In an ideal world, marriage wouldn't be a state-driven issue at all, but left to the religions themselves to define. Obviously this isn't an option; at the very least we should be careful about how much more power we want to give the government about our individual conscience-driven religous choices.
Fact 19 from the findings of the court, emphasis mine:
"Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law."
How this fits in with college housing, for example, I could not say. I will say, though, that the situation you're describing sounds awful discriminatory.
No religious organization is being forced to recognize same-sex marriage. No religious organization will be required to endorse same-sex marriage. The case is solely concerned with the question of whether the state of California in its capacity as a state of the United States has grounds to refuse such recognition. And, under the 14th Amendment, it does not. That's the whole thing.
As to college housing and other situations, the real question is whether such colleges accept government funding. That puts you in the same situation as accepting any funding: the entity providing the funds has the right to attach conditions, and you have the right to accept or refuse (and if you refuse, you don't get the money). And the US government and state governments are constitutionally barred from providing funding to any entity which engages in certain types of discrimination, so that's the condition attached to the funding.
What makes Hacker News cool is that the link is to the actual ruling, which is far more interesting than the articles about this I've seen so far. If you just glanced at the headline, I suggest you dig in...
I'm against gay marriage and my reasons are completely non-religious.
Currently, marriage consists of a default package of contractual rights given from one partner to another (e.g. default will, medical proxy) and I have no problem extending this to gays. In fact, this part of marriage can already be pieced together with a few legal documents.
Marriage also consists of laws which force single people to subsidize married couples, for instance the non-working spouse of a worker gets SS benefits that neither spouse paid for. Gay marriage supporters are in the unique position of thinking about this issue and recognizing the unfairness of it. But rather than advocating for fairness, they simply want to be allowed to join the favored class. I'll draw an analogy to the civil rights: think of an Asian American in 1960 saying "I'm not against Jim Crow, I just want Asians to be classified as White rather than Colored."
As a single person, I'm in the same boat as gay couples. Gay marriage supporters want to throw me overboard in order to join the favored group, forcing me to subsidize a slightly larger group of people. Why should I do anything but oppose that?
Marriage fairness (i.e., no subsidies), I'll get behind. Gay marriage, no.
[edit: I thought my last line was clear enough, but from the responses it apparently was not. I favor ending marriage, or at least ending the subsidies for it. I also favor ending the penalties for it, which apply in certain circumstances.]
As a single person, I'm in the same boat as gay couples.
Gay marriage supporters want to throw me overboard in
order to join the favored group, forcing me to subsidize
a slightly larger group of people. Why should I do
anything but oppose that?
Assuming you are straight, your being out of the favored group is your choice. At any time, you are allowed to go out and find someone who you find sexually and romantically attractive and who finds you the same, and marry them, thus getting the benefits of the subsidies you listed.
Gays aren't given this option. If they want the subsidies, they have to marry someone they aren't attracted to.
Due to their preferences, gays find heterosexual marriage undesirable. Many straight people also find heterosexual marriage undesirable.
I fail to see what the difference is, apart perhaps from the magnitude of the desires. In either case, one must go against one's preferences to get a subsidy.
Magnitude of desires? Unless you're asexual, you're not going against your sexual preferences by marrying a heterosexual woman. I have no interest in getting married and neither does my girlfriend. She's opposed to it on philosophical grounds (related to Prop 8, actually), and I just think the whole thing is a ridiculous sham. But, I would never throw an oppressed minority under the bus just because I think marriage is a joke.
I humbly invite you to go seek out a handful of people who identify as gay or lesbian and ask them why they feel like they should be allowed the right to marry, regardless of their intention to actually do so.
It shouldn't be very hard in the NYC area to find a handful.
Unless you're asexual, you're not going against your sexual preferences by marrying a heterosexual woman.
Some people are in fact asexual, and prefer no sex. Others may prefer not to be married, even if they do wish to have sex with people of the opposite gender.
These are both preferences; what makes them less deserving of protection than a preference for gay marriage over straight marriage?
I understand that some people are asexual, which is why I mentioned that. Asexual people get a raw deal, there's no question about that.
I'm all for eliminating marriage subsidies, but let's take it one step at a time and recognize that there are literally millions of people in the United States who are being discriminated against by the state.
Saying that gay and lesbian individuals shouldn't be extended the rights enjoyed by the rest of the adult population of the United States because the entire institution is unfair misses the point.
So would you be against gay marriage if marriage didn't have the side-effect of favoring married couples over singles (or so you claim)?
If yes, then you would have to amend your reasons for being against gay marriage.
If no, then first you're not really against gay marriage, just against marriage in general. But by opposing just gay marriage you're being selective which is discrimination i.e. you want to deny gay couples the same rights that are given to non-gays. Whether you like those rights or not is irrelevant - they're already given and accepted by society.
Without the subsidies, marriage would be nothing but a default contract. So in that case, I'd favor making the contract more general and including gays.
Incidentally, gay marriage activists also favor discrimination against the single. I didn't want to start a fight pitting one unfavored group against another, the gay marriage activists did. Now that the fight is on, I'm obviously going to support my team. But I'd much rather join with gays and fight for fairness rather than against additional discrimination.
Ah. Have you talked to any outspoken pro-gay-marriage people, AKA activists? Like, all of the people in these threads who are telling you "yes, of course we're against marriage subsidies too, but pragmatically that has to be a future goal"?
You are not on a "team". You are making political statements (and probably actions, if you vote, canvass, or engage otherwise in the political process) that have real-life consequences for individuals with widely varying views.
"The Gay Marriage Activists" do not have weekly meetings that end with unanimous votes about how they hope the federal government supports tax cuts and special legal rights for married couples for ever and ever.
Maybe you just haven't quite explained it right yet, but I'm getting a strong fishy smell from what seems to be an argument that you'd "much rather join with gays and fight for fairness" -- except that you found out (somehow?) they all disagree with you on an issue that's, well, important but currently pretty irrelevant given widespread cultural norms.
Based on that argument I'm not quite sure how you can oppose gay marriage. It would appear you would have to rally against marriage subsidies, or at least marriage as a whole, etc. - because singling out a facet of the group (or a facet wanting to be part of that group) you have reason to dislike strikes me as discriminatory.
"It would appear you should rally against marriage subsidies,"
From my post: "Marriage fairness (i.e., no subsidies), I'll get behind. Gay marriage, no." In case that wasn't clear enough, I completely support eliminating all subsidies for marriage, and view gay marriage as a minor sideshow to the real issue. (See also my edit.)
I only single out gay marriage supporters because they are being jerks about the issue. Instead of pushing for fairness, they push for unfairness in their favor. Most people ignorantly accept the status quo, having never thought about the issue.
Gay marriage activists are not ignorant. They have thought things through, recognize that it is unfair, oppose the status quo, and still favor an unfair system. "I'm not against corruption, I just want the opportunity to participate in it." Why should I support them?
There might be gay marriage activists that are all about the subsidies, but this really isn't what the pro gay marriage movement is about. I understand that you see these subsidies as grossly unfair, but given that not everybody agrees, or even considers the subsidies to be the primary motivation for supporting gay marriage, calling supporters jerks as though they were all intentionally pushing for increased unfairness is kind of a dick move.
To make an analogy: if there was law against selling alcohol to asians, I could use your reasoning to support that. I would say:
"I'm against selling alcohol to asians, because people who drink cause harm to themselves and to the society, for which I, as a non drinker, have to pay with my taxes. Reforming alcohol laws - that I'll get behind. Selling alcohol to asians, no. Asians are not ignorant. They have thought things through, recognize that it's unfair and still favor an unfair system. Why should I support them?"
In that hypothetical scenario I would be missing the same big point that you're missing: equality is much more important. Equality is about treating everybody (be it a good or bad treatment) the same. The opposite is discrimination. Your dislike of marriage in general does not justify in any way discriminating against gays by denying them marriage.
In your analogy, the only discrimination is against asians, unless you mean to imply that there are subsidies for drinking (in which case, I'd favor ending both subsidies and anti-asian laws). In the circumstance under discussion, there is discrimination against both gay couples and single people, and I favor eliminating all discrimination rather than moving a small group from the unfavorable to the favorable group.
Suppose I reversed things. I want to allow single people to stop subsidizing married straight couples, but still require gays couples to pay subsidies. Would you favor that? Somehow, I doubt it.
In your analogy, the only discrimination is against asians
He's implying that non-drinkers are being financially discriminated against in a way analogous to single people regarding marriage financial benefits. Regardless if it's subsidies for drinking, as you mentioned, or otherwise the non-drinkers are being burdened.
What it comes down to is which is worse: A specific group being denied a right or a burden which that particular right imposes on the population that does not participate in it. Where you're running into trouble, in my opinion of course, is conflating these two issues together. Gay marriage and your problems with the financial aspects of marriage aren't an either/or thing, they're a completely different battle. Based on your comments I believe that the subsidy issue aside you really have no problems with gay marriage itself. So be happy that some people got more rights and gear yourself up for the separate subsidies battle.
Regardless, thanks for taking the time to single-handedly take up an unpopular opinion here.
Regarding the social security benefits...in actuality married people in the U.S. pay what's euphemistically called the Marriage Tax, because the rules as codified actually require married people to pay more than if they filed separately.
Regarding the rest of your arguments, I suppose they work assuming an extremely weak social contract. Or at least, in my opinion it would require a very weak one. It's hard question to test in relation to marriage since marriage is a legally sanctioned relationship in all countries, but i am most certainly not well read on this topic.
That's true for some couples, but not all by any means. It also completely ignores the marriage subsidies.
According to the CBO, 51% of married couples received a marriage bonus, and only 42% paid a marriage tax. In total, $32.9B was paid in marriage bonuses, and $28.8B was paid in marriage penalties. Data is from 1993, sorry, a quick google search couldn't find anything better.
In the case he's talking about, where you have a working spouse and a non-working spouse, the couple likely pays considerably less in taxes than would a single person with the same income.
For any given income, a couple filing jointly with that total income pays less than a single person with that income, because the joint tax tables are lower than the single tax tables at any given income level. The so-called marriage tax is simply an artifact of the fact that we have a progressive rate structure, so that if both spouses work, their combined income is in a higher marginal bracket, which in the case where both have full time jobs can be enough to overcome the tax break they get from filing jointly.
The problem with your argument is that you can join the "favored class" at any time so one could find that only gay singe people eventually subsidize all heterosexual marriages. So why not let gay people get married and if it gets to the point that the subsidies are so onerous then one would think single people - gay or straight - would be coming out of the woodwork to change that particular part of the law. You can't change everything at once and I think this is much more important from a non-religious ethical standpoint than any economic reason.
Gays can also join the favored class at any time. As far as I know, there is no law saying a gay man cannot marry a woman.
Gay's don't want to join the favored class and neither do I. The only difference between myself and a gay person is the strength of our desires and the existence of desirable substitutes.
True, gay people can enter into heterosexual marriages. As for the subsidy, I doubt that will change unless the affected group decides it has become too onerous and starts putting pressure on their representatives to remove it. Which means that more people getting married could shed more light on how unfair the system is for single people. It shouldn't have to be this way but unfortunately that seems to be how it goes.
That's a very cynical point of view based on seriously flawed premise i.e. that the biggest reason people get married is to obtain some financial benefit.
People mary because they are in love and they want to assert that loving relationship in the society and with government. What comes with that is a rich array of benefits and obligations. Most of the benefits (like the right to vist your spouse in the hospital) only have value if you actually care about your spouse.
So yes, technically gays can do fraudulent, non-gay marriage with a random person, but don't use it as an argument for discrimination by denying the marriage with people you actually want to marry (for a host of reasons that have nothing to do with the financial windfall you claim to exist).
Also, if there really is such a financial benefit to getting married, how come we don't have an epidemic of fake marriages? Your basic claim of financial benefit to marriage is not supported by observable facts.
The problem with this argument is that I'd like to see data that single people subsidize married people. I suspect it is that wealthier married people subsidize everyone else.
But again, maybe you actually have the data that shows that single people subsidize married people.
One way to handle this is to separate out the economy into single vs married economies. Effectively different tax pools. Although I suspect the burden of single parent households on the single tax pool would be pretty weighty... especially if you get rid of child credits.
Hey downvoters, it's an honest question. It makes him sound like "if I don't get mine, I'll keep you from getting yours", but I'd like to hear an alternate (more positive) interpretation.
If it's truly an honest question, the mapping for my analogy is { "white" : "straight married", "asian" : "gay", "black" : "single" }. Since I'm single, in the analogy I would be black.
(Admittedly, it's a confusing analogy if you are unfamiliar with US history.)
I was really surprised that to get married in New York, the officiant pretty much has to be a judge, the town clerk, or a religious representative of an "official" religion with an established place of worship. Seems awfully unfair that atheists have fewer options than members of popular religions. What possible interest does the state have in vetting wedding officiants anyway?
It is a legally binding ceremony so presumably you don't want that to be performed by just anybody. The idea that it's performed by someone who is licensed with the state and therefore officially accepts obligations that come with the right to marry other people seems reasonable to me.
As to unfairness, maybe it would be unfair if it would be a trouble to find an officiant that is not a religious representative. The way I see it is that allowing religious representatives to perform a wedding ceremony as accepting societal reality that many people are religious and are more comfortable when wedding is performed by a religious representative but in no way it constitutes harm to non-religious people.
The main one I have heard is the slippery slope argument. If marriage is redefined as something other than a legal union between a man and a woman, where does definition of marriage come from?
In other words, if someone is for gay marriage, then on what grounds can they forbid polygamous or incestuous relationships or incestuous relationships?
Of course, this assumes that these other less popular alternative lifestyles should be forbidden as well.
Marriage has evolved over time. If it didn't, then it probably wouldn't be around any more.
Examples:
-Inter-racial marriage was once illegal in the US. Now it's not.
-Marriage was used as a tool to forge alliances between royal families in Europe. Now it's not.
-In Europe, it was once common for a bride's family to pay a dowry as a part of the marriage agreement. Now it's not.
My point is that elements of our collective cultures evolve all the time. The concept of marriage exists to serve culture that it's a part of, not the other way around.
It's discrimination because non-gays can marry and gays cannot.
This does not apply to polygamous or incestuous relationships. Those are not recognized by law, but they are denied to everyone equally.
Also, "union between a man and a woman" does cover incest so clearly that's not the definition used by courts when deciding who can marry. Your premise is flawed and even if it wasn't, you're just trying to confound completely separate issues.
Absolutely, it is about discrimination. Gays marriage choices are discriminated against based solely on the gender of their desired spouse. As ridiculous as it is, the law allows a gay woman to marry any man that they want.
However, the law discriminates against polygamous relationships based on the number of people involved and incestuous relationships based solely on who their relatives are.
The argument is, why is discrimination against gender bad, but discrimination against relatives is ok. If two brothers want to get married, why should that relationship be denied by the law?
Both gender and relationship to the potential spouse are attributes of a person that cannot be changed. Why is it ok to discriminate based on one but not the other?
Exactly. This would be one of main arguments against the typical "it's a consensual adult thing, what is it to you!" argument for gay marriage. In fact, to many people, a polygamous relationship between a man and many wives would be more "natural"than gay marriage (e.g. some Muslim countries, where gayness may be punishable by death by Sharia law allows more than one wife).
Same logic applies to incestuous marriage, although this would be more extreme since there are very strong taboos against it (not throughout all history, though, e.g. in Ancient Egypt pharaohs mostly married their sisters).
Your premise is flawed. The ruling stroke down the law as violating constitutional rights of gays because they are denied benefits that are given to non-gays. Period.
How about a man and a chicken? If you tell me a chicken can't give meaningful consent and therefore a man can't force a chicken into marriage, then what right do we have to eat them?
Seriously, I'm not joking.
It is a valid point when arguing against gay marriage to point to the "slippery slope" of bestiality. But it is also a valid point to state that there's really no good reason to make marrying a chicken illegal. Fundamentally, I believe most opposition to gay marriage is based upon disgust. And I'm confident the same is true for marrying a chicken. Disgust is hardly an adequate justification.
The practical purpose of marriage is to give protections to the woman who bears a greater liability in childbearing. This doesn't apply to gay "marriage", except in contrived cases. I'm actually yet to hear an argument in the favor of gay marriage that doesn't do one of the following:
1. Torture the definition of "equal". As if a law specifically designed to cover a specific relationship between a "man and a woman" is somehow invalid, whereas laws that cover specific relationships between a "lawyer and client" or "doctor and patient" or "parent and child" or "employer and employee" or "clergyman and worshipper" or 1000s and 1000s of others are never considered unconstitution.
2. Appeal to emotion. Ie, domestic partners can't automatically visit each other in the hospital when one is incapacitated, etc.
> The practical purpose of marriage is to give protections to the woman who bears a greater liability in childbearing.
[citation needed]
Accepting that for the sake of argument — suppose I'm sterile, then. Or I just don't plan on having any kids. Do I still have a right to all the benefits that heterosexual couples obtain from legally recognized marriage? If so, then on what basis are those rights granted to me, but not to my gay neighbors next door? (I'm seriously curious whether you'll say no, sterile couples don't deserve those rights, or whether you'll just engage in more special pleading toward the prescribed end of denying marriage rights to gay couples.)
But back in reality, those of my friends who've gotten married already had many reasons for doing so, and "giving protections to the woman who bears a greater liability in childbearing" certainly wasn't at the top of their lists.
And dismissing discussion of crucial benefits such as the right to visit your husband or wife in the hospital as "appeals to emotion" is nothing short of absurd.
The practical purpose of marriage is to give protections to the woman who bears a greater liability in childbearing.
That is maybe one practical purpose of marriage, but it's not the legal basis, and there's a lot more to it from a societal perspective.
I think the lawyer/client and doctor/patient argument is interesting, but feels a little hollow, because people are in a position to choose to become doctors, lawyers, clients, and patients freely. There is no inherent discrimination in those relationships. Would you expect a special class of legal relationships between a black man and a white woman? I wouldn't.
I can't believe you're being voted down. The idea that marriage is solely for the purpose of childbearing is patently absurd. Marriage is a lifelong partnership with a myriad of benefits and responsibilities, some of which are recognized and codified by the state. The state also recognizes that marriage provides enormous good to society, not only child care, but also care of the aging, the unemployed and the infirm. It is also a partnership that is deeper, longer lasting and more important to society than that between any lawyer/barber/personal trainer and client.
> The practical purpose of marriage is to give protections to the woman who bears a greater liability in childbearing.
Got a cite for that? If protection of childbearing women were such a great concern, wouldn't we expect societies to have historically provided much more protection to children born by non-married women, too? Yet historically when the Lord diddled the maid, neither the maid nor her bastard received any protection at all. Why single out married women to receive protection?
It seems far more likely to me that marriage was to provide a stable framework upon which to build a predictable system of inheritance of land. When the Lord dies, you really want to have a clear transfer of ownership, for the good of the estate and the commoners who depend on it.
None with much plausibility. There are a lot of secular anti-gay-marriage arguments put forth by religious people, but they are, without fail, far less rational than the religious arguments.
You don't have to be religious to notice that exclusively vanilla heterosexual marriage has been common to all advanced societies. There are plenty of other models, but any culture that rose to power picked the one.
It seems to me perfectly reasonable to assert that there will be unknown consequences to screwing with a system that has worked reasonably well.
The last time marriage was tinkered with back in the 60s, no fault divorce and alimony as normal were tacked on. Infidelity was also decriminalized. I find it very easy to believe millions of broken homes and fatherless children were a direct consequence. The social consequences in lower socio-economic strata have been severe in a way that educated people generally don't comprehend.
In conclusion, the conservative impulse to "conserve" social institutions that have a long track record of success is not fundamentally religious. It comes from the same place as environmentalism: don't go screwing with complex systems you probably don't fully understand.
Why don't we apply to the same logic to every potential decision? Many Republican tax cuts have been unprecedented, so (il)logically conservatives should have opposed them. The iPhone is a disruptive technology will have "unknown consequences", so clearly it should be banned.
The reason we don't apply this idea (except to things we already disagree with) is because it's completely illogical. Caution is one thing, but simply dismissing every idea that could have "unknown consequences" is a great way to make sure that literally nothing gets done. It is certainly not rational. It is, in a word, FUD.
It's about as similar to social institutions as marriage is to divorce, which you tried to equate. Probably more similar, actually, since marriage and divorce are opposites while communication is a keystone of society that's intimately involved in most of its institutions.
At any rate, saying America's current implementation of marriage is a social institution going back through all of history and geography is just plain weird. Even in the modern age, marriage means very different things to different cultures, and that's ignoring all the "marriage" constructs that have existed in the past. Outlawing polygamy was a greater offense to the history of marriage than allowing gays to marry.
There are rational arguments, mostly coming from evolutionary psychology and similar domains. The arguments tend to fall apart under rational scrutiny when used to shape human behavior rather than simply explain it.
A couple recent articles by Robin Hanson about polygamy cover similar terrain in interesting ways. The arguments, particularly in the second article, more or less break it down to the problems of utilitarianism.
Well I can see the idea of a gay couple raising a child sounding like a strange and dangerous idea to someone who hasn't been exposed to it, religious or not. For example: couldn't this lead to children being confused about their own sexual identity?
But one of the reasons for this ruling was that it was shown in the court-room that children do as well when raised by a same-sex couple as by a heterosexual one. It then follows that recognizing those couples would be even better for those families.
We live in a hetero-normative society. Hetero couples are everywhere in media and popular culture. I'm pretty sure that kids being raised by same-sex parents can see that different people have different sexual orientations and work that out.
I'm sure it's harder for young gay people to have straight parents than for young straight people to have gay parents, yet nobody ever worries about that scenario.
We (culturally) have thousands of years of social and legal experience with heterosexual marriage. It's a very complex institution. Making a radical change to it may have unintended consequences.
My view is that allowing gay marriage is itself a consequence (probably unintended but still welcome) of other radical changes to the institution of marriage in Western society in the last century or two. Such changes include the view of a marriage as a personal unit rather than an economic one united by love rather than mutual economic and social benefit, and the general increase of women's rights and convergence of gender roles (for example, women can own property, and are not treated as being property themselves). The whole "soulmate" thing is a relatively recent idea, but is the current ideal for marriage.
We have thousand of years of experience with a variety of institutions that share the name "marriage" but aren't very similar to each other. The current institution that bears that name has arguably only been around for about forty years, most recently being re-written by the sexual revolution and the increasing social acceptance of divorcing and re-marrying. Considering how flexible we as a society have become with respect to gender roles, this change is hardly "radical" by comparison.
No, actually we don't. Marriage throughout history had very different social and legal rules. Inheritance rules, power, authority, and care-taking of children are elements that have changed radically over the years.
It would be accurate to say we've had experience with many different kinds of heterosexual marriage, but once you're lumping in, say, 16th century English marriage laws and customs with 21st century Californian ones, gender starts to look like a minor detail.
We talk about "marriage" as if it's a simple, single idea, but historically, it's been applied to a wide range activities.
It clearly can be debated what is and isn't radical change.
However, "Allowing a tiny sliver of the population to enjoy the same privileges and responsibilities as the rest of us?" can be a radical change. For example, it's exactly what happened when we abolished slavery.
I'm not trying to equalize slavery with gay marriage, just to point out that something that fits your criteria can be considered a radical change.
As to gay marriage rights, given that a majority of US population is against it (as was proved in California, one of the most progressive states, with Prop 8), the fact that courts suppressed Prop 8 is pretty radical. It pushes the equality goalpost a little bit further.
Well either you are comparing the abolition of slavery to gay marriage or you aren't. The abolition of slavery was a radical change by any measure. The adoption of gay marriage has had no discernible impact in any country or jurisdiction where it has been tried. Except that a tiny vulnerable minority of the population is a whole lot happier and more secure. The rest of us haven't noticed a thing. It's just not that big a deal, except for the people who need and deserve it.
Repliers: don't bother citing the contradictory NOM study. If you believe anything they have to say, there is no room for conversation between us. The study hinges on an argument from Tony Perkins' Family Research Council, which is about as biased as any organization can be.
I'm against gay marriage for non-religious reasons. Civil partnerships fine, have the same rights and freedoms as married couples, just call it a civil partnership instead.
But IMHO this isn't hacker news and will pretty quickly get nasty.
From what you wrote you're against gay marriage for no reason at all. You stated a preference for how things should be, not a reason for that preference.
And you seem strangely preoccupied with semantics. If marriage and civil partnership meant the same thing, what would be the point of having a distinction?
I think arguing that it must be called 'marriage' is petty. Redefining that word and stretching it to encompass more things is just stupid and less useful.
Sure, give them the same rights if you like, but just call it a 'civil partnership'.
If it was just about the rights, then I'd expect people to be happy with that. But it seems to be more about forcing an opinion onto others, which I disagree with.
So instead of just using the word marriage for something that IS a marriage, we have to invent another term that doesn't mean anything else than marriage, but of two people who are of the same sex. Just because we have to. And that isn't petty.
I've seen many things described as a marriage. Like special diplomatic relations between countries, business mergers, even product announcements. And I think that people can understand this. Once again, try to describe civil partnerships to somebody. What are you going to do? Say 'It's like a marriage, just don't call it so, because I don't like it'
(In the same way, I'd even describe your reason as 'religious, just there are no gods and churches and other deities involved'. We are also used to call fanboy disputes between the text editors or operating systems as religious wars. And it's a very good description.)
That's exclusive, not inclusive 'us', I believe. This thing isn't serving me well. In fact, it is serving me very badly (gay marriage isn't going to improve that very much, though any remedy is welcome).
I remember in about '06 there was a really complicated debate I mediated on the civil partnerships page. It basically boiled down to how civil partnerships were viewed; some editors were so dead set against not equating civil partnerships to marriage (in terms of them meaning essentially the same thing, just that marriage has a historical and social aspect to it).
Point is; the argument really did just boil down to your summary - there was no actual argument just lots of folded arms and grumbling.
Civil partnerships do not have the same rights. The federal government does not recognize them and as a consequence gay/lesbian people are not able to sponsor their partners for permanent residency. I know some international gay couples who can't live in the US due to this.
First of all, religious arguments against or for anything should be irrelevant in civil arguments, it's a question of human rights. For example, the recent discussions on wearing burqas does center on whether their use is religiously dictated or not but rather the trade-offs of the rights between wearers and society at large.
This trade-off point is my main counter argument. Specifically, this means that gay marriage can have drawbacks for the society, e.g. (i) as others point out, the same logic (consenting adults, personal rights, etc.) can be used to argue for polygamy and other forms of relationships that are outside current society's norms; (ii) it may have adverse affects on the couples children.
You're missing the main point: it's about discrimination.
A law that would forbid wearing a burqa as a societal trade-off would apply to everyone equally hence it wouldn't be discrimination. Even though it would affect the most people of a certain religion, it would also apply to secular burqa wearers.
The main issue with a law that forbids gays to marry, and the reason it's discrimination, is that it denies them a right that everyone else has.
Whether polygamy is legal or not has nothing to do with it. The law forbids a specific behavior (polygamy) and it applies to everyone so is not discriminatory. Constitutionally, it's in the same league as a law that forbids smoking in public places or, for that matter, killing people.
So you're left with only one potential argument: that gay marriage causes specific, societal harm that is not caused by non-gay marriage. I would like to see a solid proof of that. "It may have" is not one.
1. The people voted and agreed on California's definition of marriage to be one man and one women. The people's vote should count not over turned by 1 gay judge.
Heads next to the Ninth Circuit, which will doubtlessly uphold the ruling. Then it'll be on to the SCOTUS, which is a very different court from the '03 bench that ruled on Lawrence v. Texas.
Not necessarily. SCOTUS is very particular about the cases it submits cert for. The 9th cir. may stand, although it's liberal reputation won't help when it comes to the modern conservative court.
Why would the SCOTUS want to get involved? Are they in the business of deciding whether state supreme courts are correctly interpreting their state constitutions?
Actually, had you actually read the ruling, you would have noticed that the primary foundation for the ruling was not the California state constitution, but the Due Process and Equal Protection clauses [US Constitution, Amendment XIV § 1].
"The system" is a constitutional democracy. That means the constitution trumps all other laws, including laws created by narrow margins in voter referenda. It is exceedingly difficult to change the constitution on purpose.
The founders of this country very definitely architected our system of government such that laws like Prop 8 would not stand up in court.
If you want to live in a pure democracy, try to get congress to repeal the Constitution.
Actually, the system is a constitutional democratic republic. There are many who believe that ballot propositions and referendums (like Prop 8) are in direct conflict with the structure and spirit of the system. Madison, notably, referred to direct democracy as the "tyranny of the majority." Hence, Congress.
You're making an argument based on popular vote, but black people and white people wouldn't be able to intermarry either if our system was entirely based on the will of the masses.
That’s why there is Congress. That’s why there is a Supreme Court. That’s why there are independent state and local governments. That’s why there are term limits.
Here in DC, there was a movement to get a Prop 8 style ballot initiative to overturn our new gay marriage law. Luckily, the drafters of the DC charter had far better foresight than in California. You're simply not allowed to create a ballot initiative that would violate the Human Rights Act. Period. Doesn't matter how many signatures you get.
People have no business voting on how we should treat minority groups.
The polygamous, drug users, people who want to rent rather than own, or people who wish to stay single are all minority groups. Do you favor eliminating all laws which discriminate against such people?
I suspect you mean a certain types of minority group. If so, could you explain which minority groups deserve the protection you describe, which do not, and why?
I guess you're trying to characterize laws that happen to apply to a particular subset of population that you'll label a "minority" and characterize them as "discrimination" hence equal them with laws that are really discriminating.
The point you're missing is that those other laws are against behaviors that we find bad for society. We don't have laws that discriminate against drug users as a group (e.g. disallowing drug users to enter restaurants), we just have laws that penalize drug use and distribution. Our laws don't discriminate smokers but penalize smoking.
Denying marriage to gays discriminates against gays. It doesn't penalize a behavior.
Gays are not denied marriage - there is nothing stopping gays from marrying opposite sex partners.
It's true that opposite sex marriage is given a privileged position, and this benefits people who want to engage in it. It's also true that purchasing a home is given a privileged position, and this benefits people who want to buy a home with a mortgage.
Thus, denying subsidies to renters (unless they go against their preferences) is discrimination against people who prefer to rent, just as denying marriage to gays (unless they go against their preferences) is discrimination against gays.
But we did vote on individual freedoms. We voted on every single one in the Constitution and in the Bill of Rights and in all the subsequent amendments. Each and every one required a vote.
Democracy is two wolves and a sheep voting on what to eat for dinner. You seem to think we live in one, but actually, we live in a constitutional republic.
its about the definition of marriage in California, not against any people. People can go to Massachusetts to get married if they wanted to, there is no law about that.
If its not legal the will have to settle for civil unions. In fact all states should have civil unions for all people, and leave marriage to the churches.
So if John wants to marry Jane, he can do so easily right in his home state and town, with all his friends and family in attendance, etc. But if John wants to marry James, he's gotta make an expensive and time consuming journey halfway across the fucking country? A journey that's long enough to pretty much guarantee that John and James won't have much chance of having all of their friends and family in attendance at their wedding?
He's getting downvoted, but he's right. The majority voted for this, but the majority didn't get what they voted for. "The System" DID NOT work for the majority in this case (although for the record, I'm very happy with the outcome).
"The System" dictates that states cannot deny rights protected under the Federal Constitution. I'd argue that it's working beautifully to prevent tyranny of the masses.
There's something called the Bill of Rights. It's to protect the minority from the tyranny of the majority. Just because the majority wants something doesn't mean it's legal.
At one time, the majority in the US supported discriminating against people based on the color of their skin. Do you that should have been upheld also?!?
Jeez, read my comment. I'm happy it was overturned, so the answer to your question is obviously no. My comment was about a democractic system and how it doesn't always work to give the majority what they want. I never said the majority should get what they want or that they're correct when they have a majority.
I don't get scribd. Why wouldn't you link to the government website hosting this PDF or to a press report conveying this information? My eyes are bleeding from all the ads...
