Monday, July 17, 2006

Procreation, Again

It’s been a rough couple of weeks for the gay rights movement.

On July 6, the top court in New York State upheld the limitation of marriage to opposite-sex couples, and within hours, the Georgia Supreme Court overturned an earlier ruling and reinstated a ban on same-sex marriage, civil unions and domestic partnerships. Then late last week, on July 14, Tennessee’s Supreme Court allowed a proposed constitutional amendment banning same-sex marriage to stay on the November ballot, and the Eighth Circuit Court of Appeals overturned a Federal District Court’s ruling that Nebraska’s constitutional amendment banning recognition of same-sex relationships was unconstitutional.

Can any conclusions be drawn from this string of losses about the future of same-sex marriage and the validity of the LGBT community’s legal claims?

Perhaps, but certainly not the assumption that gay marriage is dead. In fact, quite the opposite: most of these decisions were made by courts which chose to sidestep the main issues raised by the suits, instead offering lengthy defenses of the rationale for promoting opposite-sex marriage.

What these rulings have in common is what I earlier termed “flawed assumptions, outmoded stereotypes [and] legal misconstructions.” They are so badly reasoned that at some point, an inevitable high court ruling will bring them all crashing down at once, and they will be held up as shining examples of the intellectual paucity of conservative legal thought on civil rights matters, bigotry masquerading as a technical tapdance.

The Nebraska decision, about which I hope to have more to say later, is particularly glaring in this regard. The lawsuit was not a case arguing for the recognition of same-sex marriage, but rather a challenge on equal protection grounds to an amendment to the state constitution which not only banned same-sex marriage, but also “the uniting of two persons of the same sex in a civil union, domestic partnership, or other similar…relationship.”

The Eighth Circuit ignored the obvious political disenfranchisement of same-sex couples (in fact, they went so far as to say “access to the political process” was fundamental but not absolute, putting LGBT folks in the same political pariah category as convicted felons) and talked up the “government interest in ‘steering procreation into marriage’.”

That’s all well and good, but as Judge Kaye’s dissent in the New York ruling pointed out, it’s not enough to establish compelling interest, there must be a rational basis for the deprivation of a right (in this case, not marriage, but access to the political process, which is what makes America a democracy in the first place) that logically furthers the state interest.

And again, the Eighth Circuit fails to explain even remotely just how legal recognition of relationships that already exist -- and have always existed -- jeopardizes that interest, beyond pointing at “the traditional notion that two committed heterosexuals are the optimal partnership for raising children.”

If that “optimal partnership” is a state interest sufficient to satisfy rational basis review for the denial of fundamental rights to same-sex couples, then I wonder just why it is that advocates of Nebraska’s amendment did not also add legal restrictions on the many opposite-sex couples who flagrantly and deliberately fall short of that ideal.

Furthermore, just what is it about gay marriage that causes heterosexuals to lose interest in each other?

60 comments:

DJRainDog said...

I wonder how much of all of this is being covered by the press in other countries (Canada, or any of the European countries which have recognised same-sex unions, for example), how much the citizenry of those countries are hearing about it and how much they're shaking their heads and sighing (in whatever the language), "Stupid Americans, still so glaringly unable to truly be what they purport to represent."

little-cicero said...

I have to tell you, when I visited Boston a couple of weeks ago, I really got the urge to marry this guy I saw on the street. Just knowing that I was able to marry him there...plus he was friggin' HOT!

:) Nice to have you back. I'll post something substantive tommorrow!

Jade said...

"Furthermore, just what is it about gay marriage that causes heterosexuals to lose interest in each other?"

We are jealous of how well you guys dress already... if you are allowed to marry we will be put to shame by so many fabulous weddings that we'll all just give up. *grin*

Quinn said...

Plus, there's the Seinfeld rationale that if you find someone about your size, you double your wardrobe.

kr pdx said...

Well, now, I just have to add a very ridiculous non-legal idea, and point out that in Nebraska, "procreation" might actually be an almost-legitimate social and government concern ... I never ever hear about anyone choosing to move there ... of course, now probably more people will choose not to move there, so that's kindof shooting themselves in the foot, eh?

Matthew said...

The procreation anti-gay marriage argument is so unfundamentally sound and inequally applied that I feel like we almost should take it seriously.

Almost.

Why are infertile couples with no plans to adopt allowed to marry? Why are elderly couples allowed to marry?

The answer I've received to those questions is -- believe it or not -- that even though those couples can't or won't have and raise children, they still have a penis and a vagina, so that makes them ok.

So, attention, all you IT people: If you walk into an IT area of some company, you can now demand that they pay you a salary. It should be perfectly legal to do so. Why? Because even though you choose not to work there, you do have the skills to work there, so that's enough. This can be extrapolated into many job fields.

Now... is marriage still about procreation and raising children?

little-cicero said...

Andy, this is not a defeat for anyone, it is a victory for democracy. As you've said earlier, the population's bigotry against homosexuals has been tamed in this country. If you're so sure that popular sentiment is for SSM, why not allow a vote on it? As I said in an earlier post, marriage is a product of society, so why shouldn't society define it. By society, I don't mean the majority should rule over the minority, I mean that marriage belongs to all people, not any one group, so all people should have a say in it- not just one group.

You may be underestimating the reason and lack of bigotry of the populace. They already voted against the Gay Marriage Amendment at the Federal level.

Andy said...

Ummm...okay, a couple of points.

One, as I've said so many times before, the civil rights of minorities are not determined by the will of the majority.

Two, with the exception of the New York case, these lawsuits are the direct results of voter initiatives. So while polls indicate 56% in favor of same-sex marriage in New Jersey and 53% in New York, the idea that we could advance our cause through popular referendum in Georgia, where the amendment passed with 76%, or in Nebraska, where the amendment passed with 70%, seems like a waste of energy, no?

Plus, going back to the first point, it's irrelevant because in a DEMOCRACY the majority does not determine the rights of the minority; that is why we have things like the Equal Protection Amendment and the ban on bills of attainder. The courts are there to safeguard minorities from the majority. At least, that was the plan. Alas.

little-cicero said...

So a point of clarity- as I plan to sleep on the question of whether marriage is a right:

If marriage is a civil right, then it cannot be changed via any democratic action other than an amendment. No law or definition change that doesn't involve a 2/3 majority, which gives additional power to the minority, can decide the rights of any citizen- thus the majority cannot rule over the majority.

If marriage is not a civil right, those who oppose SSM can pass any laws they want banning SSM or "protecting the definition of marriage".

Clarity?

DJRainDog said...

I simply cannot fathom how anyone has to ask such inane questions about this issue. Bottom line: What we're talking about is not the right to engage in a religious ceremony or to be accepted by any particular faith community. We're talking about the right of two persons to engage in a binding contract and with the responsibilities and duties bound thereto, to receive the benefits and privileges afforded by same, ALL THROUGH THE SAME EQUAL LEGAL PROCESS. We're talking about the right of all citizens of your supposedly great nation to be recognised as being of equal standing under the law. What part of that do you people not fucking understand?!

little-cicero said...

I have never taken this discussion under any pretext to the contrary, dj raindog.

Andy said...

Well, Little Cicero, you may not agree with it, but there are several Supreme Court rulings which establish marriage as a "fundamental right." So if you want to dispute that, go ahead, but for all intents and purposes, legally this question has been settled.

DJRainDog said...

Okay, first off, I can't believe you actually typed that with a straight face (no pun intended).

If what you just typed were true, I really don't understand why you people who are opposed see any need to have any discussion at all. We're talking about Equal Protection Under The Law. Nothing more, nothing less. And homosexuals do NOT have it.

What next? Are homosexuals not permitted to own property? You seem to feel they shouldn't be permitted to JOINTLY own property. How 'bout businesses? How about voting? In denying the right to marry to two people who are in an established relationship, you're effectively rendering them second-class citizens, so why should we bother allowing them to vote? I mean, we really don't want their warped, immoral opinions influencing the direction our "great nation" takes, do we?

(Admittedly, I'm extrapolating a little, but the views I'm throwing out are, I assure you, actually held by quite a number of people in America. And that's what we're fighting against. We're not talking about SPECIAL rights, here; we're talking about EQUAL rights. Whether those rights are "human" or "civil" is irrelevant.)

little-cicero said...

Yes, I did write that with a straight face. I happen to believe that homosexuals have already attained equality, and that they deserve equality. Equality does not rest in attaining the ability to walk into an emergency room when your husband is dying, and being able to say "that's my husband". I hate to repeat myself like this, but my views, for the benefit of those who haven't read them for a while, are as follows:

The issue is not about homosexuals, it is about marriage. It is about the definition of marriage, as has been proven in the California case which nearly succeeded in changing the legal definition of marriage to "two people" rather than "a man and a woman". The easiest way to prove that this is not about homosexuals is to point out the fact that homosexuals have the right to marry, assuming the person is of the opposite sex. The only way for them to marry the person of their choice is for "marriage" to be defined as something other than that which it is defined as today.

Andy, did my comment clarify sufficiently before?

DJRainDog said...

Then let me clarify MY position:

You, little-cicero, and all those other Americans who refuse to see the forest for the trees and the bigotry of their ways, are a fucking moron.

To say that you, "believe that homosexuals have already attained equality" reveals grave naïveté. One need only examine the military's "Don't Ask, Don't Tell" policy to prove your belief false on its face. How are my friends in uniform who are terrified of losing their careers or their lives if someone finds out they're homosexuals being treated "equally"?

Furthermore, "marriage" is, for heterosexual couples, a relatively quick and easy way to leap through a vast number of legal hurdles involving community property, benefits, visitation priviliges, custody...One of my lawyer friends would be better equipped to make this list than I. Homosexuals have no such legal device for use with their partners of choice. (Don't start with me on the ability of homosexuals to marry persons of the opposite gender, unless you want to align yourself with forced/arranged marriages, which is essentially what you're doing. Think about it.)

The current "definition" of marriage is, if it applies only to heterosexual couples, discriminatory in that it prevents non-heterosexual couples from enjoying the same rights under the marital contract which heterosexual couples enjoy. Your statement, "Equality does not rest in attaining the ability to walk into an emergency room when your husband is dying, and being able to say 'that's my husband'" is most offensively, callous, but more importantly, inaccurate; both of these characteristics reveal the kind of bigotry expressed statements like, "Hate the sin; love the sinner". I suspect, though, that you cannot see this; your homophobia is deeply buried beneath the bullshit rhetoric of "compassionate conservatism", and I think you honestly don't see the forest, on account of all the trees. A homosexual man or woman involved in a relationship with another serious enough that (s)he should feel compelled to make such a statement of profound commitment and conviction ought not to be denied access to his/her loved on on the sole basis of gender. That, young man, is what we call "discrimination".

And millions of us have had quite enough of it.

kr pdx said...

LC, perhaps if you think of "the definition of marriage" as being all the legal accouterments ("this is my husband," inheritance, etc.)--the stuff that has been actually chosen and debated by our public + government--instead of being the fairly arbitrary, never been argued legally before just recently, "definition" based only on (non-universal) traditions--and based in NOTHING in our founding doucments (which you are otherwise very quick to hold up and claim people have read too much into) ... perhaps then you can see why people here see your "logical" (to you) stance as completely nonsensical.

Man-woman marriage is a holdover from pre-America (and pre-Modern assumptions), not a legal construct in the way most rights and responsibilities we live with are. If we lived in a country without a written Constitution (and a legal tradition that actually mostly obeys said Constitution), your arguments would hold more water. But since various rights and non-discrimination clauses do exist, and a "definition of marriage as M/F" (or as anything other than a set of contractual obligations and rights) doesn't, I'm pretty sure you are out of luck trying to argue that your perceived definition has any lasting actuality in the long run in this country. (Barring federal amendment.)

kr pdx said...

Misc., for Matthew: your question has another answer; whether you'll think it more, less, or equally stupid I don't know. It is the Catholic answer, and as such has very little to do with anything in the overall legal debate America finds itself in--there are way too Catholic assumptions that don't apply to the general populace (or to many Catholics). I suspect many Christians hold this idea (at least subconsciously), despite most having let go of its theological foundations.

The answer lies--less obnoxiously than usual! really!--in the Old Testament. Many in this crowd will be familiar with Abraham and Sarah being an infertile couple until God somehow miraculously causes the elderly Sarah to bear their only son Isaac. Abraham is an extremely key figure in his relationship with God (I forget which name(s) God was showing himself as in this case, I apologize for using the modern "God" name, probably inappropriately). (The parents of Samuel also had fertility issues, apparently miraculously resolved.)

The Church for many years in fact would not sanction non-fertile unions (and at different times un-sanctioned established unions upon appeal if they proved infertile) ... this was officially changed in maybe the 1800s(? I am VERY unsure of this date), when people started living long enough for it to matter with any regularity, because it was argued that God can cause miraculous fertility (evidenced from the Bible, and probably also from miscellaneous less-famous Christian-era miracles), and therefore even known infertile heterosexual couplings were actually potentially fertile.

(Yes, there is an obvious out for lesbians, since God miraculously caused Jesus to be born of a woman who "did not Know man" ... but Mary has always been seen as specifically singular in all sorts of ways and I'm thinking the Church would not buy that. Plus it still leaves gay men out. Plus I'm not seeing that too many modern women of any type think Mary is such a great role model. And now I've gotten silly, so I'm done.)

Jarred said...

How exactly does this phrase:

"Homosexuals are allowed to marry, as long as they marry someone of the opposite sex."

differ from this one:
"Black people are allowed to marry, as long as they marry another black person."

Andy said...

DJ Raindog, while I share your frustration with LC, namecalling does not contribute to a healthy conversation, nor does it move the issue forward, nor does it lend credence to your otherwise accurate arguments. If the NY court ruling establishes a firm precedent -- and it might! -- that marriage is an issue to be resolved by state legislatures, then you and I and our friends and loved ones are GOING TO NEED LITTLE CICERO ON OUR SIDE. We can win this because we're right, you know we are, and we have to help Little Cicero and the millions of Americans who agree with him see the flaws in their arguments. Vulgar namecalling is not going to be helpful.

Andy said...

in attaining the ability to walk into an emergency room when your husband is dying, and being able to say "that's my husband"

Little Cicero, perhaps you do not understand that as of this moment, in many places around the country, I WOULD NOT BE ABLE TO ENTER THE EMERGENCY ROOM PERIOD to visit my partner/husband/whatever I want to call him because many hospitals do not permit anyone other than blood relatives or legal spouses in to visit patients. Because of this second-class status, many committed lifetime partners have been prevented from being with their companions when they died.

2. You are not framing the legal issue correctly. The question is, "Is the current definition (1 man + 1 woman ONLY) constitutional?" One does not say, "The law is correct because it is the law," that's not analysis, that's circular reasoning. If "the law" were always correct, we would not be revising Jim Crow laws nor would you have an avenue for advocating the overthrow of Roe v. Wade. Passage of a law by voters or a legislature does not automatically indicate constitutionality.

And your suggestion that gay people are not discriminated against by current marriage laws because they are allowed to marry, so long as they marry someone of the opposite gender is silly. I know you already disagree that marriage is a fundamental right, even though that's established legal precedent. What is also well-established is that inherent in that right is the ability to marry the individual of your choice, that is the heart of Loving v. Viginia.

DJRainDog said...

Andy, you're right, and I know it, and I knew it when I typed that and clicked "Post", but I did it anyway. There's a huge difference between you and me, in this regard. After explaining the same simple concept to the ignorant (which I do not mean as an insult; I merely mean "those who do not know") 'til I'm blue in the face, I become frustrated and violent, and I just want to exterminate them; you, on the other hand, remain calm, patient, kind. Thank God for the guys like you; the guys like me would decimate the population.

Jarred said...

And let's not forget that it's not even just about visitation rights, but also about who has the say in said partner's medical care in the case that said partner is not able to make the call for himself. Without a marriage license, durable power of attorney, or other legally binding documents that are considered sufficient by the regulations of the state where care is being provided, the doctors will completely ignore your instructions and go with whatever blood relatives tell them the patient would want.

Note the part I italicized. Truth be told, the laws governing durable powers of attorney and similar documents vary from state to state. Because of this, said documents are not necessarily considered legally binding should you or your partner become in need of severe medical attention while vacationing, visiting family, or are otherwise in another state.

The one document that every state does consider legally binding (well, at least until the conservatives carve it all up in order to "protect the sanctity of marriage") in terms of health care decisions is the marriage license.

Andy said...

No, I'm not always that restrained, and I know that. I shouldn't throw stones. But I think in your particular use of the word "ignorant," you have hit it on the head. LC's not here, I don't think, being deliberately antagonistic and hateful, he just doesn't get it. Yet.

My first exchange on this blog with Little Cicero many, many months ago was much in the same vein as your previous comment. I was outraged. But although LC has not exactly become a liberal, his rhetoric has moderated, his views have become more rooted in reality, and his analytical skills have shown real improvement. In reponse to some other comments or commenters, I might have chosen to ignore your comment or, indeed, thrown in my own two cents. But I think Little Cicero, in his way, is at least attempting to understand, and we shouldn't slam the door.

little-cicero said...

On whether or not I'm a moron (: , I may very well be moronic on this issue- that is for you to prove, but look at my blog, which contains only one post on gay marriage, and I doubt you would find the same moronic qualities.

Let's look at the understandable but in my opinion inaccurate comparison between blacks and gays. There is an immense difference between homosexuals and blacks- not in that one condition is genetic and the other is chosen- lest you think that is my pretext. The difference is, that when two homosexuals are separated, each of them has the SAME EXACT rights as any other American citizen.

It is only when they combine with one another and try to marry, that the supposed inequality materializes. At least you can submit to this simple fact.

As for my statement that equality doesn't lie in visitation rights- that was just to get across to you that the things you consider inequalities, though they are indeed unfair and grevious, are not truly inequalities. They are logistical complications- the visitation rules do not exist to oppress anybody, even if they do. I'm sorry if that, or anything else, angered you.

Now, to Andy's point, which should have been stated a LONG time ago, but better late than never :)

The law and the constitution are two separate entities with equal power. The "law" is the set of legal guidelines for the governed to abide by. The "constitution" is a set of legal guidelines for the government to abide by. That being said, when we speak of the definition of marriage in state constitutions, I would describe them as legal guidelines for government marriage executers and officials to abide by. The definition of marriage is not aimed at the people who want to be married, but for those who are marrying a couple.

What bearing does this have on anything? When you indict my reasoning as circular "the law is correct because it is the law", it is not an accurate statement of my reasoning. It is more accurately "This part of the constution is constitutional because it is not unconstitutional" The God's honest truth is, I don't have a problem in the world with indicting as unconstitutional part of the constitution if there is legitimate concern along those lines (in efforts to investigate the constitutionality of said part), but I am against using the judicial apparatus for changing the constitution to reverse "injustice". There is no right in the Bill of Rights that makes any statement about the right to marry. There is not one word in the Federal Constitution about marriage, that I have seen. So is an amendment unconstitutional? I see no reason why it would be. It might be unfair, or even unjust, but I see no unconstitutionality in an amendment fortifying the current legal definition as in 45 (?) states, of marriage.

So, taking the "definition of marriage" tiger by the tail, that part of the constitution would be contradicted by an amendment stating that every citizen has a right to marry the person of their choice. I would then join you in supporting the redefinition of marriage. But, if someone tried to amend that right by a 2/3 majority, I would not condemn the effort. Oh- to KR PDX, The definition of which I speak is the constitutional definition. I have no interest in the arbitrary traditional definition you think I speak of.

little-cicero said...

To all: If I failed to address any of your concerns, just say so. I may not have gotten to every concern from every person.

Andy- I wasn't sure if you were addressing this:

"So a point of clarity- as I plan to sleep on the question of whether marriage is a right:

If marriage is a civil right, then it cannot be changed via any democratic action other than an amendment. No law or definition change that doesn't involve a 2/3 majority, which gives additional power to the minority, can decide the rights of any citizen- thus the majority cannot rule over the majority.

If marriage is not a civil right, those who oppose SSM can pass any laws they want banning SSM or "protecting the definition of marriage".

Clarity?"

By the way- I honestly thought that comment would bring us closer together in our search for Truth on this issue. I did not expect such divisiveness- but due to a later comment...

DJRainDog said...

l-c: "Marriage", you're right, is not expressly defined in the Constitution or the Bill of Rights. "Due process" and "equal protection" are addressed, however, and it is clear that if het couples are entitled to certain legal rights as a result of their "married" status, homo couples are entitled to an equivalent means of attaining those same rights. Since we know that "separate" is never "equal" (Brown v. Board), the only solution is to extend the legal status of marriage to those homo couples who desire it.

As to the status of homosexuals having "equal rights", one need look no further than the government's "Don't ask, don't tell" policy, which I mentioned before, to prove that assumption false. Indeed, had you grown up in a Southern state, as I did, you would not find the comparison between blacks and homosexuals at all inappropriate. Wait, actually, maybe you would; you see, where I grew up, and indeed, throughout much of the South, where racism continues to thrive, it is FAR worse to be gay than to be black. (Indeed, Mr. Aethlos touches on this fact brilliantly when, within the first few minutes of his show, depicting social thought where he grew up, he lets fly a longer list of ethnic ephithets than even I could imagine, which concludes to the effect of, "And the lowest of the low, worse by far than all the others, are the faggots.") I won't go all activistic on you here, but if homosexuals truly had equal protection under the law, a lot of us wouldn't fear so greatly for our careers, and even our lives.

Andy said...

Little Cicero, truly, yours is a fascinating mind. Where to begin?

The difference is, that when two homosexuals are separated, each of them has the SAME EXACT rights as any other American citizen.

Wrong. Gay people are not allowed to serve in the military. Now, you may say, "Hold on there, they can serve, as long as they're not open about their sexuality." Well, how is that the SAME right? A heterosexual soldier can talk all he wants about his girlfriend(s), or his wife, or his wife and girlfriends, or make a comment about a woman on the street, or whatever. He can say he spent the weekend celebrating his child's third birthday and his wife's parents came into town for the event.

The gay serviceperson could also have spent the weekend celebrating his child's birthday with his partner's parents, but he's not allowed to say that, because outing himself gets him discharged from the military. How is that "the same"?

Little Cicero, your argument here is just RETARDED, highlighted by the very fact that you have to stipulate that our rights change as soon as we are in partnership. Is it not glaringly obvious that YOU have the right, even as a single individual, to form a relationship with a person to whom you are innately attracted, and I do not?

There is just more to respond to here than is humanly possible, but jumpin' Jehosophat, your thoughts are so screwy that I'm tempted to go DJRaindog on your ass. Moronic, yes, that is actually the word to use. Sorry.

I am against using the judicial apparatus for changing the constitution to reverse "injustice".

Uhhh, I don't know how to respond to that, other than to ask how on earth you could possibly call yourself a patriot? I mean, that right there is the very system of governance that our Founding Fathers established. That's why they created a three-branch government, specifically mandating that the judiciary be independent of the elected branches, and they specifically endowed the courts with this very power you claim you don't think they should have. For someone who claims that America is the Greatest Nation on God's Green Earth, you don't know FUCK ALL about it, LC. Seriously.

You are correct, as far as I know, that the federal constitution does not mention marriage anywhere. That's why the Republicans keep trying to pass a "Defense of Marriage Amendment," because this "definition" you keep talking about actually doesn't exist and they want to put it there.

However, what does exist are, among other things, the First Amendment, which prohibits the government from establishing your religious views to the exclusion of mine, and the Fourteenth Amendment, which guarantees that all laws of the United States will apply equally to all citizens.

Now, as I have stated so many frickin' times I've lost count, YES, for the last fucking time, the government has the right to regulate and restrict access to marriage, even though it is regarded as a fundamental right.

In order to do that, however, there must be BOTH a compelling government interest, and a rational way in which the restriction furthers that interest. Consanguinity and minimum age requirements rationally further compelling interests in terms of public health and the safety of minors.

When asked what interest the government has in restricting marriage to 1 man and 1 woman, they answer, to promote procreation.

Are you seriously telling me that if I were to marry a man, you would be significantly less interested in marrying a woman and having a child or children with her?

HOW does the restriction of marriage to 1 man and 1 woman rationally further the stabilization of heterosexual marriages and the desire to procreate?

It doesn't.

little-cicero said...
This comment has been removed by a blog administrator.
Andy said...

Actually, I have to correct myself.

The courts, actually, do NOT have the power to alter the constitution. I should have paid more attention to what you wrote, sorry.

It is, in fact, only Congress or a state legislature which can change a constitution. Courts can only use a constitution as a guide as to whether a law, which may have been passed by a legislature or by voter initiative, meets the tests of constitutionality. But they have no authority over a constitution.

But I might add, LC, the LGBT people are not trying to change the Constitution, but the Republican party IS. Our legal strategy is based wholly on the Constitution as it presently stands. You're the ones who are unhappy with it.

FRACK I'm angry now. ARGH.

little-cicero said...

"Due process" and "Equal protection" certainly protect gays from discrimination and hate crimes, but these clauses concern litigation, prosecution and juristiction of the government- that is clear. If you're talking about equal access to civil institutions- you're right to refer to Brown v Board, but I see no relevance to those clauses, which specifically concern the civil institution of the justice system.

"Don't ask, don't tell" is, in practice, more of a means of protection for gay soldiers from homophobes within the army than a method of screening out gay soldiers. Consider it, if you will, as concerning not the fact of whether one is gay, but the advertisment of one's homosexuality. So technically, this does indeed concern not the freedom of association (of the naughty man-love variety) but the freedom of speech. Precedent, as well as Andy, confirms that the abridgement of that freedom is reasonable if done for rational purposes- and the purpose of protecting homosexuals from homophobes is by no means irrational.

Your point about being a homosexual in the South is well taken- that is why I placed protection from and punishments in reaction to, hate crimes against homosexuals, first on my "gay agenda" in a previous post, and informing people as to the origins of your homosexuality as the second priority. Much as I lack the perspective, and thereby wisdom, as it concerns treatment of gays in the South. I would assume that none of this bigotry is committed by the government itself. It is committed, rather, by individuals. Much of the bigotry against blacks was also committed by private citizens as well, but Jim Crow Laws were in place, as you know. No such laws exist for homosexuals.

Good points, but I still disagree. Now whether or not marriage is a civil right is really rather up in the air for me at this time, so if you're looking to persuade me...

Andy said...

"Don't ask, don't tell" is, in practice, more of a means of protection for gay soldiers from homophobes within the army than a method of screening out gay soldiers.

Yeah, that's why they FIRE the gay soldiers. Jesus, LC.

kr pdx said...

Sigh :(.

LC, I assumed you were using the legally arbitrary traditional version specifically because there is no Constitutional version--the words aren't there, as you yourself note, so there is no established legal standing at that level, which Andy correctly sees as the reason why some folks are trying to add such language now. You have not presented any legal standing for M/F exclusive "marriage" that makes sense in a Constitutional debate. To me, at least.

Andy, ... oh, you caught that. Good; I was confused. (the Amendments/Judiciary error.)

I'm pretty sure LC's right on the due process and equal protection clauses specifically referring to government actions/inaction ...

Let's see ... LC, what about 'protection' for a gay partner who is suddenly disabled (say, a head injury in a car accident) and has no family (or a family that has disowned them) but the (government) social workers who are dealing with his/her case (because the partner isn't allowed in, or to make decisions) choose long-term care facilities or amputation or all sorts of other potentially life-destroying things without the input of the life-partner who knows the injured party (and probably their health-care wishes) best? Having loved ones as physical guardian angels saves lives in hospitals--not only do they catch visible changes, they also can catch medicine errors, and health care professionals are more likely to stick to the safety-book (eg, wash their hands between every patient) if a non-patient is awake and watching them.

Isn't the government specifically endangering the lives of each gay-partner who checks into a hospital by not granting spouse-status?

(And that's not even counting the faster, better recovery times/lowering of mortality rates associated with having loved ones supporting you in treatment and recovery.)

I think the endangerment is real. (Andy et al: are there lawsuits on this yet? Wrongful death etc.?)

(Full disclosure: I used to work in a health system. And I have a deep deep distrust of establishment medicine, which predates but wasn't helped too much by said employment.)

LC: DADT: If the military made it clear to their members that homophobic actions (including hatespeech) would no longer be tolerated, wouldn't that be a more just approach to the question? I can tell you that in a very minor way I suffered under a cultural DADT policy during college--respected as a person up until the point someone found out I was Catholic. DADT pretty much sux.

Andy said...

KR: only legally recognized spouses have the right to sue for wrongful death. That is one of the more than 1,000 rights, benefits and protections that comes AUTOMATICALLY with the signing of a civil marriage license.

DJRainDog said...

I'm going to try to make this my last addition to this thread for today. Because I'm tired. Because my work is not yet done. And because I keep having to say the same things over and over, and people don't understand why I'm mad enough to kill.

Due process and equal protection do NOT protect gays from discrimination OR hate-crimes. The latter occur despite these safeguards and go frequently largely unpunished, especially in the South and in rural areas of this land. (I can cite examples, but I'd ask that you do your own homework here.) ("Jurisdiction" is a word derived from the language of the Romans; you, as an Italian-American, should know how to spell it.) Marriage is, for MY intents and purposes, and for the government's, a civil institution. And incidentally, the civil institution of the justice system is NOT what was at issue in Brown, but rather the educational system. The same standards were later held applicable to public transportation, restaurants, rest-rooms, and the gamut of other PUBLIC institutions. Like marriage (Loving v. Virginia, again). And by the way, if you're not allowing homosexual couples the same rights to marriage and the legal privileges allowed to heterosexual couples, YOU'RE DISCRIMINATING AGAINST THEM! How many times do I have to type it for you to read it and understand it?!

I like the idea of protecting homosexuals from homophobes. More than that, I like the idea of homosexuals beating the living shite out of homophobes. More than that, I like the idea of everyone being well-educated enough not to be homophobic. Or violent. But that's neither here nor there.

And on the origins of bigotry against homosexuals in the South being in individuals, rather than the government, to attempt to divorce the two is to split hairs. The government is comprised of individuals. Those individuals make unjust laws or commit miscarriages of those laws, and consequently, homosexuals can be fired from their jobs for being homosexual, or various other things can happen. A lot of Americans hate homosexuals more than they hate the ter'sts. Worse yet, they consider the homosexual populace AMONG the ter'sts. Take the blinders off, man. Seriously. I'm stopping now.

Andy said...

KR/LC: I think I can also further clarify the judicial power over constitutions by saying that no state constitution may contravene the federal constitution, so therefore federal courts are the arbiters and can and have overturned parts of state constitutions (see Romer v. Evans, 1996).

little-cicero said...

I'll be back tommorrow, but two things:

1) Can Andy or someone else explain in what instances homosexuals are fired for being homosexuals. I have this suspicion that he's referring to the guys who dress up as women and expect to get a job as host/hostess in a restaurant, only to freak out paying customers. He may mean something else- I have no clue.

little-cicero said...

Oh, oops, continuing
2) PLEASE lay off of such minute spelling errors. Like you, I haven't got all day to spend on my computer. Since spell check is not an accessory on blogger comments as of yet, and as I am a slow typist as it is, I do at times make spelling errors that aren't corrected. If I'm so moronic in my reasoning, surely you can stick to substance in your criticism. I do appreciate the rest of your comment, but you've done this in the past- and I just want to express my annoyance for the record.

DJRainDog said...

Poor spelling is a HUGE pet peeve of mine. MASSIVE. And you consistently misspell "jurisdiction". And "stereotype". And a handful of other words. If it looked like a typo, and if it weren't a recurring event, I'd leave it alone. Just add it to the list of important things you have to learn. (I'm aware this might be unkind. My patience? Gone 'til the first class I teach tomorrow morning.)

kr pdx said...

Ah, stupid question (wrongful death), sorry (big wince) ... but still, a rash of such lawsuits across the country, even though they would all be thrown out as soon as they actually hit the courts, might open fencesitters' eyes to the human factors. (And might put some hospital administrators who don't already let Partners in "on notice.")

In any case, the example was aimed at LC, to show that all the civil miscellaney that constitutes "marriage" in America actually has definite protective aspects for heterosexual couples, including life and health, that are in fact not being extended to homosexual couples--that people very likely die (or are treated against their wishes, which can be viewed a a form of physical abuse) because they lack these legal protections.

And Andy, I know that state constitutions have to bow to the federal. My broken thought showed that I was going to take up your error, but I saw you corrcted it. I left it in partly to show LC that I wasn't only reading his stuff critically, but the whole string (not negatively, "critically"--lest anyone be offended).

LC: The times I've heard laws argued in the press regarding hiring discrimination / discrimination in the workplace ... I think this would be, over the last 15 years, arguments in Washington, Oregon, and parts of Colorado (when Focus on the Family moved into Boulder) ... it has generally been presented as "you are homosexual, which is evil, this is a Christian establishment, you can't work here." Yes, they reputedly argued it was for some physically observable trait that gave the Wrong Impression (hair too long, walks funny, lisps, piercings ... all the regular suspects ... I don't remember any dresses on men being mentioned) ... but the hiring choices were made because of what that visual(/audio) cue represented, not the cue itself ... and then the owners sometimes added, "If the person just wouldn't flaunt(!) it:" visual Don't Ask Don't Tell.

Yes, there are reasons to have workplace dress codes (not least safety) ... but "don't dress like who you are," if others haven't got dress codes besides "be tidy," seems ... dissonant.

DJR: Aside: my apologies for my typos. I have as many excuses as the next person--but I'll try to be more aware. (And if I make a repeated mistake I like to be told what the correction is, so I can stop!)

Andy said...

LC: here. Now, I know you'll get all excited because this says "fewer gays" are being fired. Well, in 2004, 653 people were expelled from the military for the single reason that they admitted to being homosexual.

The military will now take high school dropouts with histories of mental illness and criminal records because of their plunging enlistment numbers, but they won't take an openly gay person.

As for civilian sector jobs, only 25 states and the District of Columbia include "sexual orientation" in their non-discrimination laws. ("Liberal" New York was not able to add the words "sexual orientation" to its non-discrimination law until 2002.) This means in the rest of these places, yes, you can indeed be fired simply for being homosexual.

Andy said...

And ps, LC, DJ's right, and I've told you before. Spelling counts.

LeshDogg said...

As your former English teacher, LC, I am HORRIFIED that you are defending poor spelling as typos.

Copy, paste, check in Word, for goodness' sake if you're that unsure of it.

grrrr...

I realize I'm not perfect, but I try to catch it before someone calls me on it and give a good mea culpa.

little-cicero said...

Frankly, were I a homosexual, I would be offended by the idea that homosexuals are "dressing like what they are" as kr explains. To be a homosexual, all joking about fabulous fashion sense aside, the only thing that sets you apart from any other person is that you have sex with someone of the same sex. You don't have to wear an earing or long hair just because you have sex with a certain type of person. In fact, I think this whole "gay culture" notion is more than a little damaging to homosexuals in that it alienates them from Christians like me. But, it's neither here nor there.

Is it smart for an employer to value appearance over other qualities? Not at all, but I'm a great believer in giving people the right to be stupid.

But, the question is, is it constitutional to rule in favor of the defense in a discrimination suit? In that, it certainly is the case that the equal protection and due-process laws obligate jurists to consider discrimination as being in effect when an employer fires and employee because they have a lisp or an earring (if other employees have earrings), etc.

As for marriage or adoption, no- I see no correlation between marriage and the equal protection/due process clauses.

So, in the degree to which it's relevant, I do agree that homosexuals have been denied civil rights in states wherein discrimination laws do not include homosexuality as a basis for discrimination. While I question the status or marriage as a civil right, I can by no means question the fact that access to judicial apparati (?) is a civil right.

little-cicero said...

On the spelling- my English teacher is right that I should not defend bad spelling, but amid debate I tend to find it condescending and unneccessary to bring up spelling when there is such potential for real discussion. I believe I'll write a post on this. I do honor your opinion on this subject, but I do not fully agree.

kr pdx said...

OK, holy crap.

In case anyone else interpreted the dressing thing the way LC did, let me explain about Portland.

Just about every person above age 14 in Portland would be fired for one of those visual cues. I am like the ONLY GenXer who doesn't have a tatoo or weird piercing. (Yet.) Guys DO wear dresses sometimes--het guys too, starting sometimes in jr high ... we were way ahead of Beckham on the metrosexual thing. My hair was fire-orange and spikey last Fall, and really having waited until 31 was pretty conservative (but I was breastfeeding--yes, in public--from 26-31, and was nervous about absorbing the chemicals).

Not that everyone dresses that way all the time, but always some people do.

"Dressing like yourself," if yourself is fabulous (any sexual orientation) or just thinks long hair is sensous (again, anyone)--or that short hair is your thing--or whatever, isn't in my world an indicator of sterotype. It was the stereotypes--interpreted as such by the people involved at the time--I heard discussed in the firings I heard discussed. I was saying that the "problems" were less outre than your question of "wearing a dress and wanting to be a hostess."

The only guy I knew was gay before I graduated high school was Andy. The couple of other guys I was pretty sure were gay dressed almost as normatively as Andy. I've since of course run into some flamers, but they are themselves ... not indicative of the group, any more than my nutcase clothes in high school were indicative of my group. I am not trying to propigate sterotypes, I am trying to show how damaging and ridiculous they are.

little-cicero said...

Well, if on that subject you want my true opinion, it is that when one is an employee, one only has the right to "be yourself" insofar as the employer tells you to. The self is an accessory to the employee- the employee being a uniformed drone whose purpose is to fulfill the needs of the business. That's not to say that the self is not supremely important to the success of fulfilling those needs, but the self is secondary to the "employee".

No one ever said the depersonalization of employment is a good thing- but it is the reality of this point in the cycle of economic transformation.

DJRainDog said...

The problem with what you said, l-c, isn't the depersonalisation of employment; zillions of people have dealt with the reality of "Corporate America" for years. The problem is your assumptions that the only homosexuals who'd be fired are those who dress flamboyantly, dye their hair, have piercings -- "flame," in the language of "the tribe". Worse yet is what appears to be an assumption that we are all "like that." On the average day, I'd bet you couldn't pick me out of a crowd as "the queer", and that's true for the majority of my friends as well. We are your doctors, your lawyers, your accountants, your teachers and even your construction workers (in addition to being your waiters, your hairdressers, your retail-workers, your secretaries and your designers).

little-cicero said...

Funny that you took it that way- I don't expect you to read what I say to kr, but I was objecting in an earlier comment to her assumption that gays were dressing "like what they were". So I'm in full-agreement- that is why I don't see why a homosexual should object to being told not to "dress like what they are". Homosexuality doesn't come with a dress code. I can't imagine why a homosexual who I couldn't pick out of a crowd because they look so normal would be fired just for what they do in their private life. If that is the case- I would conclude that those employers are being idiots, and they probably won't be employers for long.

But, constitutionally, like I said, you're absolutely right that it is unconstitutional to leave homosexuality out of a case as a form of discrimination IF THAT IS THE CASE. Of course it would be a shame if this was abused, and every time a homosexual's fired the call of "Discrimination!" rings throughout the streets. But that has little to do with Constitutionality.

By the way, if at any point I've misspelled Constituionality wrong, I apologize in advance. I find myself stubling through the many S's and T's in the word. :) By the way, I hope you read my post on spelling. It's what I call intellectual nudity. Champipple! :)

Andy said...

By the way, if at any point I've misspelled Constituionality wrong...

ROTFLMAO.

LeshDogg said...

The point on grammar and spelling, LC:

poor grammar and spelling will automatically cheapen what would be a good argument because of the careless nature of which you CHOSE to use the English language (IMHO).

Think of it this way: I believe Bill Maher makes excellent points and should be listened to by all. Conservatives, such as yourself, would not listen to his points because they are laced with crudeness and indecency. You would not hear the message beyond the language.

So to, would someone tune out your message because of poor grammar and spelling. Or even discredit your message (which you are right to call cheap, but it is an easy tactic to take, so why give them the out?).

Plus, and a little more narcissistically, it reflects poorly on me (your self-professed English teacher) when you excuse your grammar for the sake of argumentation.

Fair 'nuff?

little-cicero said...

Mr. Leshdogg, I'll try, but being an agitator I tend to turn out comments faster than I can check them for spelling and grammar. I will try, but until we see the results, let us all join in prayer that some day, blogger will grace our comment threads with a little ABC icon for us to click, and all of our spelling problems will be over. Amen.

Andy- Umm, yeah- I DID know that I spelled Constitutionally wrong. He he. Funny huh. Yes, that was intentional! Indeed it was.

DJRainDog said...

l-c: People are harrassed, bullied, fired, beaten and murdered for what they do in their private lives all the time. I'm glad you're finally recognising that discrimination is discrimination. And I wouldn't worry too much about homosexuals crying "discrimination" too often; I should think my people would be far less likely to take up that cry at the drop of a hat as to do so reveals one to be a purported homosexual. Outing oneself is not something most groups who suffer discrimination have to worry about. (There are those cases, however, like light-skinned black people, who are discriminated against by both ends of the racial spectrum, whether they're trying to pass as white or asserting their blackness.)

Jarred said...

The problem with that approach, LC, is that their are just sum things a spell checker won't catch. Spell checkers are not a replacement for self-discipline when it comes to proper language use or effective communication.

Yes, there are two mistakes in the above paragraph. They were intentionally introduced to make a point. I would have used the infamous "spell checked poem," but didn't feel like searching for it.

If you find more than two mistakes, the rest are honest goofs and LC is free to pick on me about it.

little-cicero said...

Good point DJ, which leads me to wonder: are homosexual discrimination trials kept anonymous in cases in which the accuser is closeted?

As far as spelling, I no were your going with this Jarred, and its a good point, but spell check would certainly solve a significant number of spelling deficencies, insofar as the juristiction of spell check can reach such errers. :)

LeshDogg said...

like ... fingernails ... on ... chalkboard ... brain ... exploding ...

LeshDogg said...

is this where I insert an emoticon to ensure the "snarkiness" intended?

little-cicero said...

:J or :S

might indicate snarkiness. I am by no means an emoticon expert, but...

kr pdx said...

As the resident emoticon overuser, I would choose
;P
--the "wink-but-I'm-still-sticking-my-tongue-out-at-you!" emoticon.

(I like :S , though ... perhaps, "I'm nauseated"?)

I'm glad this blog doesn't enable those little yellow-head emoticons. I hate those. So undignified ;).

little-cicero said...

Hey, I've used those in e-mails to you! Huh!

kr pdx said...

The yellow-heads? My emailer de-graphicked them, I guess, 'cause I don't remember them.

:J and :S I'm sure I translated through context ;).