Friday, July 07, 2006

Hernandez v. Robles

The decision handed down yesterday by the New York Court of Appeals on same-sex marriage was legally perverse and just plain offensive, arguing for state-sanctioned discrimination on a set of flawed assumptions, outmoded stereotypes, legal misconstructions and the contention that the rights of minorities should be regulated by the whim of the majority.

“It is not for us to say whether same-sex marriage is right or wrong,” wrote Judge R.S. Smith in the conclusion of his ruling, but that doesn’t stop him from elaborating for pages on reasons why the Legislature should continue to discriminate against New York citizens on the basis of sexual orientation.

“The right to marry is unquestionably a fundamental right,” concedes Smith. “It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law….Beyond this, [married couples] receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.”

This acknowledged fundamental right, however, can “rationally” be denied to same-sex couples because the State has a compelling interest in promoting marriage as a stabilizing factor in heterosexual relationships. How exactly legal recognition of same-sex marriage would act as a destabilizing force or would discourage procreation is not something he chooses to make clear.

Judge Smith says his arguments in opposition to same-sex marriage are “derived from the undisputed assumption that marriage is important to the welfare of children.”

There are thousands of children living in same-sex parented households in New York State. Is their welfare not important?

It’s not just gay folks who should be offended by this ruling, but the heterosexual community as well. Consider this argument: “It is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not….[homosexuals] do not become parents as a result of accident or impulse. Thus…promoting stability in opposite-sex relationships will help children more.”

Got that? Two heterosexual people too irresponsible to avoid an unwanted or unanticipated pregnancy should be encouraged by the State to join into a permanent legal relationship – for the welfare of the child they didn’t plan to have – and same-sex couples should likewise be denied this legal recognition because “these couples can become parents by adoption, or by artificial insemination or other technical marvels,” and therefore are presumably more stable and do not need encouragement from the State.

“A person’s preference for the sort of sexual activity that cannot lead to the birth of children is relevant to the State’s interest in fostering relationships that will serve children best.”

Translation: people who can’t have children biologically shouldn’t get married because if they do, it wouldn’t be good for the children they can’t have.

“Intuition and experience” – those bedrocks of legal reasoning – “suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like.”

What is a man like? What is a woman like? Is there any way to answer that question, biology aside, without resorting to stereotypes? Furthermore, this reasoning implies that the Legislature's real imperative is to ban heterosexual single parents.

All of this, despite the fact that procreative intent and capability are not defining characteristics of civil marriage. (See Griswold, Turner, and Scalia’s dissent in Lawrence.)

The silliness goes on and on and on, and I encourage you to read it for yourself.

I also strongly encourage you, at the very least, to read Chief Judge Judy Kaye’s compelling and moving dissent in this ruling. “Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage – purportedly to encourage other people to procreate.”

49 comments:

Jarred said...

Well said! You have eloquently expressed the outrage I think many of us are feeling over this ruling.

Jeff said...

Amen, Andy.

Robert Bayn said...

Well you know Marriage is about family, and gays don't have families they just have "lets screw buddies".

Jarred said...

Would I be correct in inferring that Robert is being sarcastic?

little-cicero said...

I'll reiterate what I said on the last thread, and add sentiments of agreement:

You are right to feel outrage over this ruling. The court was wrong to rule that marriage to whomever one likes is a fundamental human right.

That precedent should inspire thousands of Mormons and other polygamists, as well as steriotypical West Virginians (that's a joke) who long to marry multiple people or relatives whom they love no more than gay people love their partners. Frankly when marriage of choice becomes a fundamental human right, there is NOTHING keeping polygamy and incestuous marriage from being Constitutional other than concerns with sex.

I find it illogical to Constitutionally equate marriage with sex. Clearly in a society wherein marriage rarely precedes sex, it makes little sense to even consider sex in rulings on marriage, so if there is no life threatening consequence of incest or polygamy in and of themselves, why should those fundamental rights be revoked other than for reasons of temporary judgement.

So doesn't the court set itself up for such rulings in the future? (by the way, I am aware of the risks of incest, but medical findings show that they only show up after many generations)

Robert Bayn said...

Yes, Jarred.

Interesting thing i saw on TV today, that the more the courts stay out of the gay marriage fight, the more support there is for gay marriage. Support for gay marriage has gone up 15% in the last 10 years, it dropped some 10% during the 2004 election when the GOP ran on anti-gay marriage amendments (basically that's how Bush got re-elected), and the courts were involved, but now that the issue has somewhat sizzle out of the national spotlight for the most part, and you don't have Dobson on TV everyday saying if gays get married, the whole world will come to a crashing halt, support for gay marriage is going back up, the most recent number puts it at 53% approval.

Moral of the story? When you don't force it on people, they are more open to it.

Andy said...

LC, it's not just New York; the Court of Appeals in this case merely acknowledged that based on a series of Supreme Court precedents, marriage is "unquestionably a fundamental right." [emphasis mine] Perhaps YOU question that, but the courts don't.

You keep missing part two of all my statements on this.

READ CAREFULLY

The government has the power to restrict access to rights, even fundamental ones, if it can demonstrate a rational basis and a compelling interest in doing so.

States generally prohibit marriage between blood relatives because of potential genetic concerns, and they also set minimum age requirements because they have successfully argued that under a certain age, a person isn't competent to understand what marriage means. The state has compelling interests (physical health, child welfare) that can be supported on a rational basis (medical and scientific evidence).

Polygamy is a different ballgame. I do not choose to be attracted to men, I just am. That is my orientation. I would like someday to have a legal civil marriage with another man. I'd rather live alone with my cats in a trailer in the suburbs of Winnemucca without TV than marry a woman. (Unless she was really, really rich and not around very much.) I saw a vagina the other day, and I have to say I was not impressed.

Now, polygamy is a whole different kettle of wax. Let's remove sexual orientation from the equation, and for argument's sake, let's say that the fundamental right of marriage includes the partner of your choice. Singular. One partner. Two men getting married is very, very different than one man marrying four women or three men marrying six women or eight women marrying one man.

Still, how do we restrict polygamy? With rational basis. All of the current benefits and responsibilities of civil marriage (there are over 1,000) are set up for this binary model of marriage. Same-sex marriage won't change custody or inheritance or property rights or any of those things.

But let's say a woman, married to three other woman and two guys, has two biological children, one by each man she's married to. Now she wants a divorce. Maybe she wants to divorce just one of the men and two of the women. Figure that one out.

That could potentially constitute a rational basis for continuing to ban polygamy.

Now, what is your basis for objecting to polygamy? You've got to have something more than just plain "moral" opposition based on the Bible, because of course under the First Amendment those Mormons you speak of are going to smack you across the face with the free exercise clause.

Andy said...

Robert!!! What are you talking about??? "Force" gay marriage on people? What the HECK gets "forced" on straight people by the legalization of gay marriage? They are still allowed their moral disapproval. As Dear Abby said, "If you don't like gay weddings, don't send a gift."

LeshDogg said...

Something struck me in a conversation I had about this topic the other night, if I may be indulged a bit to go on a small tangent...

There seemed to be a lot of talk about "marriage is for procreation only" in this debate (a common argument used by those opposing same-sex marriage: if you can't create children, you have no reason to "marry").

Now as Andy and others have posited many times, any couple (sadly) can go ahead and procreate. One needs only look to the divine Miss Brittany for proof of that. Obviously, there is not much thought for heterosexual couples to procreate beyond, "let's have a kid." Some marriages have children in order to "save" the failing marriage, often with disastrous consequences for the children.

While it is not possible for two men together to father children (literally between the two of them), there are means available to those two men to have children. Imagine, if you will, for a moment the thought, dedication, and conviction of these two men (or women) to have said child; far beyond that of "hey, lets have a kid." In that respect, I would think that a gay couple would have a better foundation for a responsible household than most straight couples. But, of course, one would have to accept that people don't choose to be gay; the children of gay parents don't all turn out to be gay, people (said somewhat sardonically).

A thought to chew on. Sorry if it was too tangentical or already covered by Andy, et al.

LeshDogg said...

oh poop...I spelled "tangential" wrong. my bad.

little-cicero said...

So Andy, what you're saying is that the only argument against polygamy is "complications" (my word, not yours). Surely such complications would exist in a Same Sex Marriage as a result of the lack of natural procreation and other related child custody issues, but you and I would consider them trivial. Frankly I find the arguments against polygamy which are based on logistical complications trivial. My argument against polygamy is based on the definition of marriage- not on morality or anything else. I have no legal problem with a man having "spiritual wives" other than his own as long as they are of the age of consent just as I have no legal problem with two men living with each other. I simply have a legal problem with changing the definition of marriage to keep up with the changing tides of society.

Logistical complications do not, in my opinion constitute "rational bases" for changing the definition of marriage. Women being sanctioned in childbirth when underaged is not a logistical complication, it is a rationally reprehensible situation. The fact that genetic complications occur over many generations of inbreeding is no rational basis, however, for a single instance of incestuous marriage- it is morally reprehensible! In our society, as we have seen, morality has no bearing on legislation, so that dog won't hunt (Yeehaw!).

Your second point- I think I answered it here- there is no rational basis for banning incestuous or polygamist marriage- only logistical and moral objections which have no legal bearing whatever.

little-cicero said...

Oh, by the way, getting back to SSM, there is also no legal bearing on SSM if the definition of marriage is changed to accomodate it via the creation of marriage of choice as a fundamental human right. Now I have to believe that if judges of the Mormon polygamist/Inbred hick variety had made this same ruling to accomodate their sympathies, they would be rightly criticized for doing so, so for the same reason, I criticize those judges who have created the precedent of marriage of choice as a fundamental human right.

To clarify my point, I would not even mind so much calling that a civil right (rights which are more apt to be overriden by any concern for the common good, whether it be rational bases or logistical complications) but to call it a fundamental civil right on par with life, liberty and the pursuit of happiness, is a redefinition of human rights involved in the redefinition of marriage.

Andy said...

LeshDogg: I have discussed it elsewhere, but you've hit it right on the head. Griswold v. Connecticut and Turner v. Safley both established that neither procreative intent nor capability are defining characteristics of marriage.

Sure, many LGBT people would agree that ONE of the main reasons for getting married is to foster a stable environment for the RAISING of children, but that's different than procreation, isn't it? My sister has two sons, both of which were adopted from Korea, and no "biological" children. Many married heterosexuals adopt or take advantage of artificial insemination...are they less married for raising children they didn't create through sexual union?

What about the many heterosexual married couples who simply choose NOT to have children?

Obviously, there is not much thought for heterosexual couples to procreate beyond, "let's have a kid."

Errmmm...I think you're giving heterosexuals too much credit, Lesh. I'm not sure there's often even THAT much premeditation.

Anyway, procreative capability or intent as barrier to legalization of same-sex marriage is a complete bullshit argument. If Little Cicero wants to disagree, I would refer him to Antonin Scalia's dissent in Lawrence v. Texas: "what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."

Little Cicero: clearly you haven't put any thought at all into the differences between same-sex marriage and polygamy, and the potential complications. Custody issues for same-sex relationships that go bust are held to the same standards as heterosexual relationships: the court determines what is in the best interests of the child, so they examine which parent (and it need not be a biological parent, just EXACTLY as it need not be a biological parent within a heterosexual relationship) is best suited to maintain custody and then determine whether the other parent is entitled to visitation and how much. It is exactly the same.

Now, however, imagine you've got three women married to one man. One of the women wants a divorce, and she wants to take her biological children with her. Do the other women from the former marriage get visitation rights? Why not? What about spousal support?

Are these insurmountable barriers for the law? No. I don't think it's necessarily wise to say we can prohibit polygamy because it's "complicated."

But you're so terrified of polygamy. Why exactly is that? I don't think there's anything to worry about, I don't think that many people are interested. It seems nonsensical to me that conservatives are all terrified that gay marriage is going to lead to both a rapid decline in the interest of heterosexuals getting married and procreating and simultaneously contributing to heterosexuals suddenly deciding to marry multiple people.

Personally, I can't really see what's wrong with legalized polygamy. I wouldn't be interested in it, but I don't see it as some kind of threat.

And again, don't try to raise "The Bible" as some kind of valid argument against it. You've got First Amendment problems all over. One, you can't legislate from the Bible, two, the government is forbidden from endorsing one religious viewpoint (yours) to the exclusion of others (Mormonism, to take your example). So, good luck with that.

Anyway, I don't want polygamy. Fuck it, I can't even get ONE date, I don't see how I could entertain the idea of multiple husbands. Sigh.

little-cicero said...

Try multiple wives! Talk about an expensive lifestyle! :)

I have a problem with polygamy because it involves sexual sin, just as I am for the same reason opposed to homosexuality. It is for that reason either immoral or sanctioning immorality- but legally I have no opposition to it other than its being outside of the current definition of marriage- as with SSM.

Now, we can both agree that there are complications in any marriage and I believe we do agree that whether in conventional same sex or polygamous marriages, those complications have no legal bearing (You're right of course that there are many more complications with polygamy than with SSM). So then, we should only revoke the fundamental right to marry when imminent hazards present themselves in a marriage. The problem is that rationale varies among those who decide to what degree a union is hazardous- we're depending on the opinions of judges. Isn't it much better to rely on the opinions of the people to decide what marriage is, and to put that definition into the lawbooks in such a way that it barrs any unions found inappropriate? If marriage is a fundamental human right, isn't it better that it be revoked by the majority of humans rather than a minute minority of judges?

LeshDogg said...

If marriage is a fundamental human right, isn't it better that it be revoked by the majority of humans rather than a minute minority of judges?

That is, of course, you get a fair and unbiased count in the polls, as was not the case in Ohio in 2004. I still hold that the 2004 election in Ohio is one of the largest travesties of justice ever committed. 2006 isn't shaping up to be much better.

*sigh*

Andy said...

If marriage is a fundamental human right, isn't it better that it be revoked by the majority of humans rather than a minute minority of judges?

What? No, you have it completely backwards. The civil rights of minorities are not apportioned out at the indulgence of the majority. That's WHY minorities have civil rights. That's WHY the founding fathers set up the independent judiciary, to safeguard minorities from majority rule.

What are they teaching you in Ohio?

And Little Cicero, you're still missing the point of polygamy. I don't mean to say that binary marriages aren't "complicated" in their own ways, I just meant that all of the laws that presently exist that govern marriage do not have to be changed in the slightest, save for the conversion to gender-neutral language, for same-sex marriage. For polygamy, an entirely new set of laws would have to be enacted. You're not giving this any thought.

LeshDogg said...

Andy:

I'm only responsible for LC's literature development; some of the writing, too...

little-cicero said...

I understand what you are saying, but I disagree because I believe that marriage is an institution that belongs to society, not any one group. You believe that as well, as I understand your arguments. A fundamental human right is a right that belongs to an individual, not society as a whole. That would include life, liberty and the pursuit of one's own happiness. What makes these rights different from marriage is that they exist within individuals whereas marriage is primarily a function of society, secondarily a function of the two participants and never a function of an individual. So why should we consider the right to be in the same league as the big three?

Now, as far as civil rights, they belong to society and groups within society as we've seen in cases of inequality amongst civil rights. So I guess it would make a LOT more sense to consider marriage of any kind to be a civil right, rather than a fundamental human right. I am not sure that this is the case, but I hope we can at least come to common ground on the point that it is ridiculous to consider marriage a fundamental human right.

Maybe these judges are just drinking whatever's in Ted Kennedy's hollowed-out cane!

Andy said...

Wow, LC, just a few days in New York, and already you're smarter! Must be something in the water.

No, honestly, now you're entertaining some seriously engaging thoughts. I can't factually refute anything you've said here, which is nice. : ) But allow me to respond to a few of your points.

marriage is an institution that belongs to society, not any one group

"The right to marry is the right of individuals, not of...groups" (Perez v. Sharp)

the pursuit of one's own happiness

Okay...explain to me why the right to marry the person of your choice is not included in the above right.

So I guess it would make a LOT more sense to consider marriage of any kind to be a civil right, rather than a fundamental human right

My smarter friends will have to explain to me what the courts have identified as the factor which determines a right is "fundamental."

My understanding of the effectual difference is that "fundamental rights" are subject to more exacting court tests ("strict" or "heightened" scrutiny) whereas anything just termed a "right" merely has to pass the "rational basis" test.

Now, what's happened here is that the State has argued that it has a rational basis for promoting marriage between heterosexuals, because that is the relationship that naturally fosters the production of biological children and a stable family environment, which is good for all sorts of reasons.

That is fine. But, as Chief Judge Judith Kaye wrote in her dissent in the NY ruling, "[I]t is not enough that the State have a legitimate interest in recognizing or supporting opposite-sex marriages. The relevant question here is whether there exists a rational basis for excluding same-sex couples from marriage, and, in fact, whether the State's interests in recognizing or supporting opposite-sex marriages are rationally furthered by exclusion....[T]he exclusion of gay men and lesbians from marriage in no way furthers this interest....[N]o one rationally decides to have children because gays and lesbians are excluded from marriage."

little-cicero said...

Actually it wasn't New York so much as the coffee and salmon- which as you know studies show to be excellent for the brain.

I'll be back tommorrow, but first I'm going to try and write my own post.

Andy said...

Hmm, in the morning light, I see what I wrote above was not entirely clear, I must have been too sleepy.

It's not that "rights" have to be determined using a series of tests, I believe the issue is that when restricting access to those rights to any group known as a "suspect" class (racial minorities, homosexuals, etc.) the test of whether the restriction is valid has to pass the level of scrutiny that has been set by precedent for the particular suspect class in question.

Andy said...

Sorry, clearly I need more study on this, LOL. Found this clarification in Judge Kaye's dissent:

"The deprivation of a fundamental right is subject to strict scrutiny and requires that the infringement be narrowly tailored to achieve a compelling state interest."

Jade said...

"...the State has argued that it has a rational basis for promoting marriage between heterosexuals, because that is the relationship that naturally fosters the production of biological children and a stable family environment."

It's hard for me to believe that in the world of Jerry Springer episodes, any intelligent human being would possibly consider this a valid argument. Getting married does not automatically create a stable family environment as evidenced by the astounding divorce rate in this country.

...and this: "Thus…promoting stability in opposite-sex relationships will help children more" - My sister (aka The Idiot) is a prime example of how this argument is total crap. She had kids in an attempt to "stabalize" her marraige, which ended in divorce two years later. What did she do then? Got remarried to the first jerk-off who would give her the time of day in order to provide the "proper" household for her kids. (Hey... Mom, new dad, two kids and a dog - it's apple fucking pie time, right?) Where is she now? Living at my parents house, with her two boys slowly tearing the place apart while her "husband" is running around the country deciding what he wants to do with his life.

And thank goodness that the ability to have kids isn't a prerequisite for getting married... had I been diagnosed with PCOS when I was 19 the state would have surely been required to storm my ceremony and haul me off in cuffs for daring to marry with a condition that could prevent me from breeding.

Andy said...

Jade: Thank you for the personal testimony. This is why I find this ruling so unspeakably hurtful, is that it attempts to legislate a biological ideal as the standard, a standard to which gay people are by definition incapable of attaining (because it seeks intentionally to define us OUT of marriage) and to which heterosexual couples so rarely, rarely attain. It's fine for the state to want to encourage stable relationships for child rearing; actually, that makes a lot of good sense. What doesn't compute is how heterosexual relationships will suffer if gay marriages -- which, let's face it, already exist in substance -- are finally given equal legal recognition.

kr pdx said...

Hi all :).

LC is clearly using "fundamental right" in the vernacular rather than the legal sense, which I will use also.

"Choosing to pair" (or quadruple, or whatever--choosing (a) sexual partner(s)) would be the fundamental human right, as a subset of LC's Big Three. "Marrying" is not 'fundamental' in the same sense, whatever the obscure legal definition is, and this is I think a major disconnect between Andy's and LC's arguments.

"Marriage" is a social construct, whether religious or civil. (As opposed to pairing, which is more basic.) Whatever body politic created (or accepted) a version of "marriage" should be expected to have some say in what "marriage" means to it, and who has rights to "marriage," especially since that body politic is also inherently responsible for defining (and distributing) rights and responsibilities pursuant to the created categorization "married."

Any body politic that has left "(the possibility of) natural procreation" behind as a definitive aspect of its version of "marriage" has removed a major stumbling block for gay marriage. I assume every government in the USA has left this behind by now.

At least one major stubling block still crumbling/yet to be stepped over, though: established sexual taboos/mores. In America's legal system, of course, these will probably eventually get logicked out of the "marriage" equation. Obviously, that's not happening in New York State ... this month.

little-cicero said...

First I'll pursue the topic of fundamental human rights in a Socratic method, as I am not in the mood for rhetoric:

Is a human right a product of civilization or of a Creator/Nature?

Does it differ from what we call a civil right in that rather than being a product of Nature, the civil right is a product of civilization?

Are we speaking of legal marriage or spiritual?

Is legal marriage, like law, a product of civilization and not of the Creator/Nature?

Can an institution that is the product of the Creator/Nature be justly revoked by anything other than the Creator or Nature?

Can an institution that is the product of civilization be justly revoked by anything other than civilization?

If marriage is a product of civilization as is the definition of marriage, wouldn't the right to marriage also be a product of civilization?

DJRainDog said...

l-c: It seems to me that you're interested in blocking gay marriage because it involves what you (and many others) consider "sexual sin". Now, of course, you must realise that you cannot, in this country, legislate based on a literal reading of a translation of certain parts of certain millennia-old texts, so that renders your argument invalid on its face. I'm very interested to know, though, where the sexual sin begins. Is it ever sin to love? If so, then does the sin begin when I realise I love another man? Does it begin when we touch, when we hold hands? Do we sin when we embrace? Do we sin when we kiss? If so, does it begin with the kiss on the mouth, or the kiss on the cheek, or the insertion of tongue? Do we sin when we're naked together? Well, I mean, obviously, you believe that we do, but is it a sin to sleep together, "spooning"? The translation that comes to mind immediately is "Do not lie with a man as you lie with a woman, for it is an abomination." So maybe the sin is in the posture, not so much the act itself? Perhaps actual intercourse is okay, but then, we should retire to separate beds, or simply not use beds at all? Seriously, I want some answers here! (I'd love to hear kr pdx's thoughts, too, as I wrote her a long reply to a discussion awhile back which I never posted...)

Andy said...

Sorry I have not been able to respond; I was out of town for work yesterday and then my internet was out at home.

LC, Raindog's making good points here, and I want to add this: why are you only advocating legislation that blocks the sin of homosexuality? I mean, honestly. Passing "laws" isn't a way to get people to stop "sinning." I mean, for God's sake, LC, "thou shalt not covet" is one of the TEN COMMANDMENTS. Well, where on earth would capitalism be if we couldn't be motivated by the desire to have everything our neighbor has and THEN some? Isn't that, ultimately, one way of putting "the American dream"? Why don't you legislate that? Why don't you hold the President accountable for bearing false witness against Saddam Hussein? Why don't you ask your Congressional representatives to sponsor a bill closing the country on Sundays so that we can "remember the Sabbath and keep it holy"? (Switzerland does it.)

I still want to know why anyone would think that extending legal recognition to relationships that already exist and HAVE existed since the dawn of man will suddenly cause heterosexuals to lose interest in coupling up and raising children.

little-cicero said...

Wait, hold it right there! I said nothing about sin or immorality- my arguments are based on maintaining the current definition of marriage as between one man and one woman- a legal definition, not a moral one.

The fact that I believe homosexuality to be either unholy or immoral has nothing to do with the legality of SSM. This is about marriage, not homosexuality. I am not against polygamy or incestuous marriage legally because I am against them morally, I am against them legally because it is not appropriate to label as marriage that which is not marriage.

The Socratic line of reasoning I've presented should simply lead you to say this: Marriage cannot be a human right because its existence is based on civilization's existence, therefore it must be not a human right, but a civil right.

Andy said...

Okay, I think I'm beginning to understand the distinction in your mind, but it's still wrong.

If we're talking about "civil rights" as rights pertaining to "society," and we're talking about the civil rights of African Americans, to take one example, is it really about the rights of "African Americans" or is it about the right of all people to be regarded equally, as individuals, without regard to arbitrary classification, such as gender, ethnicity, religion, ability, intelligence or sexual orientation? I'm not understanding how something can be a "civil right" that is not also a "human right." Isn't a society, after all, made up of individuals?

Also, let me quote the Massachusetts Supreme Court on the issue of gay marriage: "To define the institution of marriage by the characteristics of those to whom it has always been accessible, in order to justify the exclusion of those to whom it has never been accessible, is conclusory and bypasses the core question we are asked to decide."

DJRainDog said...

Actually, l-c, you DID mention sexual sin, though I was reading too many comments too quickly and misread your comment as meaning that it was on this basis that you objected to same-sex marriage; what you, in fact, said was that you object to polygamy and homosexuality on the basis of their involving sexual sin. I stand by my series of questions, though, and I reject your "Socratic" reasoning as flawed from the outset, though I don't have time now and I don't want to scribble all over Andy's blog anymore to detail today. (For record, my reasons for wanting your answers on those questions are entirely separate from my desire for dialogue with kr pdx on them.)

kr pdx said...

started this the fourth comment back.
will post, then see if further reply from me is warranted (I am sure many will think I have here said enough ;) ).

Andy: I still want to know why anyone would think that extending legal recognition to relationships that already exist and HAVE existed since the dawn of man will suddenly cause heterosexuals to lose interest in coupling up and raising children.

(Couldn't tell ya, because I don't think that. 'Be nice if there was some way to make heterosexuals more interested in that "raising children" part. Interesting question whether sexual how-to books outsell parenting how-to books or not ... )

DJRaindog: damn if I know.

Since I'm sure that seems a copout (although it is flat out honest), a few more thoughts:

1) The question of sin is not only "objective," as LC is so fond of repeating (and I agree, but I recognize that there are a variety of claims of "objectivity" which don't match up), but also individually subjective. Eg., if I was raised in a rampantly codependent family, it is to be expected that I would act codependently in my adult relationship(s). To me, this would be an unhealthy life-choice and therefore objectively sinful--but if I am not objective enough to see that (to see it overall, or just in the moment), the degree of my "sin" is certainly less than if I see the "sin" and choose it deliberately anyway. ("Sin" being something that hurts my relationships with God, the people around me, the world around me--and hurts me.) So if ("if," I always recognize) I am correct about homosexual activity being a sin, the degree of sin would be partially dependent on the actor believing (or, "understanding," if the assertion is true) in the hurtfulness of the actions. (This would be, kind of, the functional difference between "venial" and "grave" sins, in Catholic-speak.)

2) I'm sure we can all think of people on all sides of sexuality who have clearly acted sexually "sinfully" (by my definition of the word: clearly acted hurtfully to themselves/others). I have done it. Everyone I know anything about their sex life has done it (as far as I can think of offhand) ... I am not raising up heterosexuals as a shining bastion of morality (nor homosexuals, from which I have also heard stories). Frankly, the "healthiest" sexual encounter I have ever read about (maybe because I don't read many ;) ) was that Heiros Gamos in The DaVinci Code, because at least they recognized the potentially sacred nature of the union, they loved each other, it seemed fully consentual ... but I wouldn't precisely call that "healthy," per previous dVC discussion here.

3) In the technical sense, within the Catholic moral system, as soon as a person "entertains the thought" they step into objective sin. The thought occuring to them is considered natural (Chorus chants: "duh"), but choosing to consider/play with/explore the thought would be the act of will that turns it into "sin." (Have I been to Confession for this? Yes, yes I have. In case I come across as considering myslef a "saint." I don't. Not that I expect any of you would have been fooled by the act if I did ;). ) I would draw distinctions here, too: if you love the person whom you are "considering," that seems to me less "sinful" than if you just saw an attractive person walk by or saw a picture--in which case your objectification of them cannot help but be extreme ("humanizing" centerfold interviews notwithstanding).

4) Love is never a sin. The degree to which "love" and "it's therefore OK/good/Right to have sex" are equated in this culture (again, for everyone of all stripes) is kind of ridiculous to me. But I recognize that that is largely because I was brought up with the ideal of a sworn single-partner being the only wise choice for sexual involvement, and that my belief is in no way any kind of obvious or logical, based on human experience unadulterated with historical conceptual baggage. If one has rejected the historical conceptual baggage (in part or in whole), there is no intellectual reason to worry about it. Which is why I try to always predicate my assertions in the sexual arena--and other disputed moral arenas--with "if" and "I believe" and other such things. I recognize that my views can reasonably be considered ridiculous, and I am not trying to get youall to agree with them. But I do believe them, at this time, and if they might be true then it is reasonable to present them into the idea-sphere.

5) If I wasn't willing to admit the possibility I was wrong, I wouldn't be talking to the bunch of Moral Degenrates I would have to think most of the readers here are. Pff. What a ridiculous way to measure the worth of a person.

We are all (hopefully all) trying to be better people. As long as that is the goal, I think the overall trend for each of us, and for all of us together, will be positive. It will be interesting to see what "positive" turns out to be.



Less arcanely:
Look, if it will help everyone who finds me/my beliefs irritating(/idiotic), please consider that I am on a truth-search ... not a truth-spreading mission. I present my perception of the truth to see how it plays against others.' Doesn't mean I will change my mind anytime soon, necessarily. But I am intaking the information.

kr pdx said...

djraindog:
I can't imagine anyone is still reading who wouldn't be interested in your "scribblings."

But you could do what I did and haul yourself over to LC's and take your issues up with him there. It does take up way less of Andy's blogspace ;).

(I admit I am somewhat the evil user here, as I don't have a blog to which people can chase me down. And I feel guilty about that; I am sorry to those who find it obnoxious. But it means more time for my children--and less prideful, self-referential presentations/conceptions of My Truths, I suspect, because I am always forced to be aware that I am in someone else's headspace.)

DJRainDog said...

Kr, you gave me exactly what I wanted. SO much there to think about. And girl, if you weren't married with kids, and if I weren't such a good c*cksucker...Well, you know. As to reading little-cicero, I just can't do it; I've tried a few times, but I always come away feeling angry and frustrated with American society and its education system. He's young, he's from a small town, he's not been to college -- not so different from me at 17, but SO different that I just want to shake him 'til his eyeballs rattle. But we Moral Degenerates don't commit hate crimes. ;-)

Andy said...

DJ, I am shocked by your gratuitous use of the asterisk.

little-cicero said...

I REALLY don't want to get into a moral discussion, because anything I mentioned about morality was a response to Andy's questions, not anything at the core of my reasoning. If I mention my moral beliefs, it is as a side note- in order to keep everything honest.

Andy: Now we're getting somewhere! Taking in hand your Afro-American Civil Rights example...

African Americans were fighting segregation in society, discrimination in society and intimidation within society. This is the worst treated group in America, obviously, but they were not truly deprived of life, liberty or the pursuit of happiness by the government. They were deprived of the protections associated with their interactions among hostile white individuals- once again, their rights were NEGLECTED, not ATTACKED by the government FOR THE MOST PART (surly there were parts of the civil rights struggle that are more accurately labeled "the human rights struggle") The government didn't kill black people, they didn't put them into cages, and they didn't forbid them from going into any given professions (life, liberty and pursuit of happiness were thus left alone by the government). They were, however, deprived of the right to go to the same school as white people. School is a product of civilization, just as is marriage. They were deprived of marriage to the person of their choice if that person was white- once again, marriage is not part of the human condition.

That is precisely my point- marriage is not part of the human condition. The desire to marry is part of the human condition, but to attach the two is like attaching marriage and sex in the way that so many conservatives do- I find such connections illogical. That is why we must make this about marriage, not homosexuality.

kr pdx said...

djraindog: thanks--I think ;). I have to say this might be the only time I have ever given a man "exactly" what he wanted from me ;).

(LC/)Andy:
How does the continuing (accurate) complaint that Liberals level against Conservatives, that the assertion is flat-out false that two-person, heterosexual, sworn relationships are the forever-standard of "marriage," play into your argument?

To me, that Liberal complaint would share basic assumptions with LC's mental construction (as I understand it, but Lord knows I misunderstand LC all the time) that "marriage" isn't a universal-type, natural-type state, but that all of the rules and regs surrounding societally encouraged expression of sexuality have been introduced/added (LC might say by God, others might say by controlling powermad priesthoods).

If the state or a church sees benefit to its members in redefining "marriage," that is certainly part of the historical pattern--including the change (and it was a conscious change, made in a very nuanced way by the Catholic Church and in a less-nuanced way at verious levels of modern American government) to accept marriage as not necessarily procreative.

----

I've had a thought on societal transformation:

Perhaps the thing to do is to have a real unified-front presentation of the benefits youall offer to society--without the "how can heterosexual conservatives be such raving idiots?" rhetoric (which can only serve to make them defensive).

Andy, your approach to being a "goodguy" Christian, where you make the effort to live an exemplary life rather than bashing people over the head with your opinions about an unprovable (to them) belief system, might also translate to making the closeminded see you as a "goodguy" gay person, and hopefully eventually to seeing that gay people can be good people ... and good parents/partners.

Right now homosexuals are coming across a little like the Christians who are "so persecuted" (and I say "a little" because I RECOGNIZE that the actual persecution of homosexuals in America is much much greater than the actual persecution of Christians) ... reacting out of anger to the actual persecutions, unfairness, and general dismissal by society is (totally!) understandable, but doesn't change the rhythm of the dispute, it perpetuates it--and really cannot produce a healthier society.

Our current American "relational" pattern is to call each other idiots and bask in self-righteous feelings (think about all the major moral/political debates right now ... isn't this true?). It is certainly a pattern I see reflected in most blogs.

Setting oneself up to be open enough to be hurt, and admit the hurt, and try to live charitably anyhow ... that is the only way we can call others to conversion. In whatever forum or discussion, religious or secular. Offering our vulnerabilities is the only way we can call out the deeper sympathies in others. We have to choose to be fully human (vulnerable and sympathetic and honest about our flaws) FIRST. Because you can't depend on the "other side" folks to do it ;).

You(all) have been proving that you are Strong, which is one step to not being dismissed (I suspect especially among menfolk).

Only the truly Strong can be truly Gentle. Only those really secure in themselves(/God, for those of us who are religious) can be open to the kind of hurt it is going to take to invite the social changes necessary for true widespread acceptance of our shared humanity.

Several years ago, I wrote out and posted for myself the reminder that "Anger is actually hurt that the person doesn't feel safe enough to express." The concept has been seriously transformative in my life, both in my personal development and in my understanding of others.

Andy, you are very fair, especially to those of us dissenters who engage you(all) here at the blog. Sometimes, though, I wonder if you are rather like Huck Finn, recognizing his friend as a worthwhile human but not cluing that that translates to all the other blacks as well.

The example of Christ calls us to self-sacrifice as the truer, if less immediately satisfying, path to world transformation.

(I hope it works, because damn it hurts.)

kr pdx said...

PS dj raindog:
But we Moral Degenerates don't commit hate crimes. ;-) (about shaking LC)

(Ah, but have you "entertained the thought" ;) ? )

DJRainDog said...

"Entertained" the thought? More than...I made dinner for that thought and gave it a private concert! It spent the night and came back for more! ;-)

kr pdx said...

snerk!

It sounds like the dating females of Chicago should mourn your attraction to men ... I am sure most hetero dates don't go so well as that ... but then I suppose you might not be describing the first date ;).

little-cicero said...

In this case it's a good thing you can't marry the notion of your choice. Were you able to, there would be blood in the streets of Dixie. :)

I wonder what happens if you form a civil union with a notion...

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