It's because the two issues are very different - legally.
And I don't see how they are different, even from a legal standpoint, and the explanations you have given so far have been, let's say, unsatisfactory.
But first I have two questions: 1) Do you deny that your proposal puts states in the position of being able to deny marriage to two individuals of the same gender? 2) Do you think it is impossible that your proposal will culminate in a Loving v. Virginia-like Supreme Court case?
Forcing a situation that ends up in court is a common strategy for affecting legal change. I don't understand why you think that a situation culminating in a court case is a bad thing.
If the choice is to put in a proposed law that will NEVER PASS or to put in one that will pass and lead to a court case, the second is the better strategy to get the change you want. It just feels slower.
The point you are missing is that Steve is proposing a solution to a real world problem: what the members of the SCOTUS have the power to do, what they would be willing to do from a political perspective, and what possible outcome both sides in the court would be willing to entertain.
The republicans don't want gay marriage. States rights is also a big deal for republicans. A good compromise for them would be to let gay marriage stand federally and turn over individual definitions to the states. Within each state, the politicians can decide if a marriage is possible, but they will have no say if a marriage conducted elsewhere is valid or not. If a gay couple arrive in the state married, they are married. My own sister traveled to a different state to get married to her husband at a roadside chapel (the issue wasn't inter-race or gay marriage, but a divorce proceedings technicality from her fiance's previous marriage). Popping across the border or a trip to Vegas is already standard for marriages. Then, with federal backing, that marriage will still be valid back in your home state.
The democrats know that they can't force states to approve marriages. It would become a huge issue in the coming elections. But this compromise is fine, as it a huge step in the right direction, and puts off the issue for maybe a decade until old people die off and the population gets used to the idea that gays aren't evil. In a few years, once a new Democrat is elected president, and the old republican appointments on the SCOTUS die off or retire, they'll be able to have their way.
Morally the right thing is sweeping change at every level. It's just not going to happen, at least not for a few years yet. If the SCOTUS have to address this issue in the next few months or year, this solution is a pretty good one for both sides.
Nuri, I am fully aware that this is one form of political process and I would have been A-OK with all of this if Steve had labelled this the next step in the process. Instead, Steve labelled this a solution to the problem, and reacted incredulous when Jason and loc pointed out that this enables the violation of civil rights by individual states and that it will simply move into a Loving v. Virginia like scenario. What triggered me was that he essentially declared homosexual marriage and interracial marriage incomparable, something I find absolutely ridiculous considering the obvious parallels.
I also take exception to the idea that supporters of gay marriage are trying to change the legal definition of marriage.
If that were the case, then the Defense of Marriage Act would be unnecessary.
The problem is the presumption that marriage laws allow only de facto unions between couples of opposite gender. That viewpoint was until pretty recently bolstered by laws banning homosexual activity in much of the US, and by unjust social propaganda of the same ilk.
The two issues are completely different from a legal standpoint.
Interracial was completely legal under the traditional definition of marriage until it became illegal due to bad laws that discriminated based on race. Overturning those laws did not grant a right to interracial marriage but instead restored a right that had been taken away.
Gender neutral marriage is a huge change to marriage. It upends the traditional man-woman definition and replaces it with a more inclusive and progressive person-person definition.
Marriage has NEVER been defined as the right to marry whoever you want, the opposite gender requirement has been there for a shit-fuck long time. Making a moral argument in a legal battle will lead to fail. Interracisl marriage was banned via bad moral arguments and restored via good legal arguments .
My suggestion for SCOTUS is likely the best result possible for the world we live in. If we lived in Utopiastan it would be different .
@Jason - Do you have historical evidence that supports same sex marriage as being legal and in harmony with traditional marriage laws?
What triggered me was that he essentially declared homosexual marriage and interracial marriage incomparable, something I find absolutely ridiculous considering the obvious parallels.
He didn't say they are incomparable. He said that, for the purposes of politics facing the SCOTUS, the comparison didn't deal with the correct issues.
The closest thing I can think of was that same sex pederasty was tolerated, and sometimes even encouraged, in some parts of ancient Greece. Still, if/when you reached 30 or so, you were still expected to marry someone of the opposite sex and have children. I also don't think those pederastic relationships were ever considered "marriages" either.
The two issues are completely different from a legal standpoint.
Interracial was completely legal under the traditional definition of marriage until it became illegal due to bad laws that discriminated based on race. Overturning those laws did not grant a right to interracial marriage but instead restored a right that had been taken away.
Gender neutral marriage is a huge change to marriage. It upends the traditional man-woman definition and replaces it with a more inclusive and progressive person-person definition.
Marriage has NEVER been defined as the right to marry whoever you want, the opposite gender requirement has been there for a shit-fuck long time. Making a moral argument in a legal battle will lead to fail. Interracisl marriage was banned via bad moral arguments and restored via good legal arguments .
My suggestion for SCOTUS is likely the best result possible for the world we live in. If we lived in Utopiastan it would be different .
@Jason - Do you have historical evidence that supports same sex marriage as being legal and in harmony with traditional marriage laws?
Considering that anti-miscegenation laws were established in what later would become the United States (at the very least in Virginia) before they were the United States, I think we have a case where such laws were always in effect for the purview of the United States. I would also doubt whether any actual interracial marriages were established before the codification of this, though I have no evidence for that.
I would also be interested what exactly this "traditional definition of marriage" is you keep repeatedly using, considering marriage has been established several different ways. Churba posted a nice chart about the several different ways marriage is defined in the Bible for example, though we certainly don't have to restrict us to those alone. And I would be remiss if I weren't to point out that tradition is not anything that should hold any legal sway watsoever.
So no, I do not see any significant legal difference between these two.
What triggered me was that he essentially declared homosexual marriage and interracial marriage incomparable, something I find absolutely ridiculous considering the obvious parallels.
He stated that our legal system views them as two different issues. Which is true. I do not understand your outrage at him for stating a legal standard. Every Constitutional Law student learns this in their first year of law school.
I know, being a lawyer is bullshitting people into submission, but one would assume there should be at least the semblance of a reasonable argument. The only thing I get out of Steve's argument is that it's been less time since defining marriage as "between one man and one woman of the same race" than since defining marriage as "between one man and one woman" and thus it's easier to overturn the former, but that is not a reasonable argument. Maybe that's a realistic argument that sways the judge or jury, but that doesn't change the fact that it's bullshit.
The closest thing I can think of was that same sex pederasty was tolerated, and sometimes even encouraged, in some parts of ancient Greece. Still, if/when you reached 30 or so, you were still expected to marry someone of the opposite sex and have children. I also don't think those pederastic relationships were ever considered "marriages" either.
It was more of a master pupil relationship that was discouraged once the younger reached his 20's or started to have sex with a woman. This was very much a Greek thing however rather than a classical trend. The Romans for instance thought it to be unmanly and part of the reason for Greek effeminacy.
Legal training shows you how to interpret laws by gathering all relevant information. It teaches you how courts have reasoned in the past and why those reasonings matter going forward. It is not about bullshitting; it is about knowing what you are talking about. Many legal arguments are bullshit, but that doesn't mean it is the sole thing that legal training teaches you to do.
If you have no legal training, then stating that you don't see the legal significance is really not very persuasive. You probably haven't studied the history of the legal issue or read the cases involved in setting the precedents. We are telling you what courts have said on the issue when it has come up in the past. Courts have said the two issues cannot be addressed with the same legal argument.
Hey Chaos, the great thing about the US is that you can pester someone in charge until they do what you want. Go write your congresspeople and tell them there shouldn't be any difference as far as the law is concerned.
Also, outside of America, where we use a different kind of English, we "write TO our representatives" not just "write them". Writing them would be to write them as a character in a novel or something.
Also, outside of America, where we use a different kind of English, we "write TO our representatives" not just "write them". Writing them would be to write them as a character in a novel or something.
Steve: Why would Republicans want to pass the Defense of Marriage Act if the law implicitly states that marriage is only between one man and one woman?
Steve: Why would Republicans want to pass the Defense of Marriage Act if the law implicitly states that marriage is only between one man and one woman?
I bet you don't shoot dead bodies in the head to make sure they're not zombies.
My point is that gender neutral marriage was NEVER legal until just recently. Interracial marriage WAS legal before it was banned in some states.
Steve: Why would Republicans want to pass the Defense of Marriage Act if the law implicitly states that marriage is only between one man and one woman?
DOMA would never have been necessary if your legal argument was as strong as you suggest it is, Steve. Similarly, almost all of the current prohibitions of same-sex marriage, by state legislation and by state constitutional amendment, were made after DOMA, not before.
Two things immediately comes to mind: 1. Sucks to be him. 2. Why the FUCK does he care what the US law says?
Edit: And hell he can still write to his representatives in his government.
No, I don't live in the U.S., and quite frankly, I wouldn't want to. I really much rather live here in austria, where we enjoy pretty much all of the same legal and civil rights, sometimes even more, than the U.S. and I can get pretty much all the same pop culture exports, the only thing the U.S. really produces anymore, via the internet. But in addition to that I see several perks here, because for example the kids of my sister (I don't currently plant to have any of my own) will have accessible and good healthcare throughout their lives, and they will be able to go to college based on their grades, and not have to bury themselves under massive debt to do so. Also, here they don't have to fear that some nut with a gun will attempt to murder them at every turn. No, it does not suck to be somewhere else.
But that brings me to point 2, that while the social order in the U.S. is a god damn fucking garbage bin, the U.S. itself still has a great economic and military power. It could do so much great things, if the people in charge there weren't either absolute morons or heartless corporate shills, and thus I do the only thing I can really: Talk about it with people who could do something, and perhaps donate some money if I have it to spare and see that the people I'm sending it to could help the situation.
But don't worry, it's not only the U.S. where I dare to stick my head in and have the audacity to care how the people are being treated. If you go back a couple of pages in this very thread for example, you will find my repeatedly decry the anti-homosexual bill in Uganda which is unfortunately still on the table and could soon be law (even if it only gives live imprisonment rather than death for being gay), but I guess according to you I shouldn't care about that either since I don't live in Uganda.
2. Why the FUCK does he care what the US law says?
Because some people care about other people.
In any case, let's get back to the legal argument since there's some discussion to be had there - the ethical side that chaosof99 wants to argue is, I think, quite settled among everyone here.
Since SCOTUS is currently deciding whether or not they want to wade into this I thought I might propose a simple solution:
1) Since the states issue marriage licenses it is up to the states to decide what constitutes a marriage.
2) The feds will treat ALL married couples the same regardless of gender. As long as the issuing state says the marriage is legal feds will too.
Other states would likewise have to recognize the marriages just as they do other state issued licenses. Individual states could say,"we honor yours but will not issue any in our state." Just as they already do with other forms of licenses.
Other states would likewise have to recognize the marriages just as they do other state issued licenses. Individual states could say,"we honor yours but will not issue any in our state." Just as they already do with other forms of licenses.
While your hypothetical scenario is a relatively likely outcome, and would be a step forward, I do not see how it would force states to recognize marriage licenses issued within other states (i.e. with respect to affording the legal status associated with marriage within that state). I suspect that legally, and pragmatically (since it's not difficult to go to another state to get married), forcing states to recognize same-sex marriage licenses from other states would be 99% of the way to full legal equality.
They would have to recognize the marriage licenses because they already do. For a state to choose to only recognize some licenses but not all with the only determining factor being the gender of the licensed people would be in violation of the Constitution.
At that point (states not honoring legal marriage licenses from other states which the feds say are legal) we would have a situation nearly identical to the problems faced by interracial marriage.
DOMA being ruled unconstitutional is key because that law carved out the exception allowing states to not recognize gay marriage licenses issued by other states.
They would have to recognize the marriage licenses because they already do. For a state to choose to only recognize some licenses but not all with the only determining factor being the gender of the licensed people would be in violation of the Constitution.
On what specific grounds do you hold this? The Equal Protection clause of the Fourteenth Amendment?
If so, that applies equally to a state's restriction of its own marriage licenses to mixed-sex couples alone, and hence the states would no longer be allowed to refuse to issue licenses to same-sex couples.
So then the states would have to pass new laws to ban new gay marriages in their own state. They would have no support from the federal government, nor from the supreme court. The republicans on the supreme court will say "Look, we left it up to the individual states, it was the best we could do to support state rights."
Comments
But first I have two questions:
1) Do you deny that your proposal puts states in the position of being able to deny marriage to two individuals of the same gender?
2) Do you think it is impossible that your proposal will culminate in a Loving v. Virginia-like Supreme Court case?
Forcing a situation that ends up in court is a common strategy for affecting legal change. I don't understand why you think that a situation culminating in a court case is a bad thing.
If the choice is to put in a proposed law that will NEVER PASS or to put in one that will pass and lead to a court case, the second is the better strategy to get the change you want. It just feels slower.
The republicans don't want gay marriage. States rights is also a big deal for republicans. A good compromise for them would be to let gay marriage stand federally and turn over individual definitions to the states. Within each state, the politicians can decide if a marriage is possible, but they will have no say if a marriage conducted elsewhere is valid or not. If a gay couple arrive in the state married, they are married. My own sister traveled to a different state to get married to her husband at a roadside chapel (the issue wasn't inter-race or gay marriage, but a divorce proceedings technicality from her fiance's previous marriage). Popping across the border or a trip to Vegas is already standard for marriages. Then, with federal backing, that marriage will still be valid back in your home state.
The democrats know that they can't force states to approve marriages. It would become a huge issue in the coming elections. But this compromise is fine, as it a huge step in the right direction, and puts off the issue for maybe a decade until old people die off and the population gets used to the idea that gays aren't evil. In a few years, once a new Democrat is elected president, and the old republican appointments on the SCOTUS die off or retire, they'll be able to have their way.
Morally the right thing is sweeping change at every level. It's just not going to happen, at least not for a few years yet. If the SCOTUS have to address this issue in the next few months or year, this solution is a pretty good one for both sides.
If that were the case, then the Defense of Marriage Act would be unnecessary.
The problem is the presumption that marriage laws allow only de facto unions between couples of opposite gender. That viewpoint was until pretty recently bolstered by laws banning homosexual activity in much of the US, and by unjust social propaganda of the same ilk.
Interracial was completely legal under the traditional definition of marriage until it became illegal due to bad laws that discriminated based on race. Overturning those laws did not grant a right to interracial marriage but instead restored a right that had been taken away.
Gender neutral marriage is a huge change to marriage. It upends the traditional man-woman definition and replaces it with a more inclusive and progressive person-person definition.
Marriage has NEVER been defined as the right to marry whoever you want, the opposite gender requirement has been there for a shit-fuck long time. Making a moral argument in a legal battle will lead to fail. Interracisl marriage was banned via bad moral arguments and restored via good legal arguments .
My suggestion for SCOTUS is likely the best result possible for the world we live in. If we lived in Utopiastan it would be different .
@Jason - Do you have historical evidence that supports same sex marriage as being legal and in harmony with traditional marriage laws?
I would also be interested what exactly this "traditional definition of marriage" is you keep repeatedly using, considering marriage has been established several different ways. Churba posted a nice chart about the several different ways marriage is defined in the Bible for example, though we certainly don't have to restrict us to those alone. And I would be remiss if I weren't to point out that tradition is not anything that should hold any legal sway watsoever.
So no, I do not see any significant legal difference between these two.
I know, being a lawyer is bullshitting people into submission, but one would assume there should be at least the semblance of a reasonable argument. The only thing I get out of Steve's argument is that it's been less time since defining marriage as "between one man and one woman of the same race" than since defining marriage as "between one man and one woman" and thus it's easier to overturn the former, but that is not a reasonable argument. Maybe that's a realistic argument that sways the judge or jury, but that doesn't change the fact that it's bullshit.
Edit; Well I took my time posting then.
If you have no legal training, then stating that you don't see the legal significance is really not very persuasive. You probably haven't studied the history of the legal issue or read the cases involved in setting the precedents. We are telling you what courts have said on the issue when it has come up in the past. Courts have said the two issues cannot be addressed with the same legal argument.
1. Sucks to be him.
2. Why the FUCK does he care what the US law says?
Edit: And hell he can still write to his representatives in his government.
But that brings me to point 2, that while the social order in the U.S. is a god damn fucking garbage bin, the U.S. itself still has a great economic and military power. It could do so much great things, if the people in charge there weren't either absolute morons or heartless corporate shills, and thus I do the only thing I can really: Talk about it with people who could do something, and perhaps donate some money if I have it to spare and see that the people I'm sending it to could help the situation.
But don't worry, it's not only the U.S. where I dare to stick my head in and have the audacity to care how the people are being treated. If you go back a couple of pages in this very thread for example, you will find my repeatedly decry the anti-homosexual bill in Uganda which is unfortunately still on the table and could soon be law (even if it only gives live imprisonment rather than death for being gay), but I guess according to you I shouldn't care about that either since I don't live in Uganda.
In any case, let's get back to the legal argument since there's some discussion to be had there - the ethical side that chaosof99 wants to argue is, I think, quite settled among everyone here. While your hypothetical scenario is a relatively likely outcome, and would be a step forward, I do not see how it would force states to recognize marriage licenses issued within other states (i.e. with respect to affording the legal status associated with marriage within that state).
I suspect that legally, and pragmatically (since it's not difficult to go to another state to get married), forcing states to recognize same-sex marriage licenses from other states would be 99% of the way to full legal equality.
At that point (states not honoring legal marriage licenses from other states which the feds say are legal) we would have a situation nearly identical to the problems faced by interracial marriage.
DOMA being ruled unconstitutional is key because that law carved out the exception allowing states to not recognize gay marriage licenses issued by other states.
If so, that applies equally to a state's restriction of its own marriage licenses to mixed-sex couples alone, and hence the states would no longer be allowed to refuse to issue licenses to same-sex couples.