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The Forever Culture War

One common rhetorical reflex of progressives is the idea that conservatives, and only conservatives, wage culture war. What they mean — whether they realize it or not — is that conservatives have the nerve to say “no” to whatever progressives propose today. If conservatives wage culture war, it is usually (but not always) a defensive one.

Samuel James takes issue with David Brooks’s idea [1] that because social conservatives have lost the culture war over the Sexual Revolution, they ought to make peace with this fact and change their focus. Brooks wrote in a post-Obergefell column [2] last summer:

Put aside a culture war that has alienated large parts of three generations from any consideration of religion or belief. Put aside an effort that has been a communications disaster, reducing a rich, complex and beautiful faith into a public obsession with sex. Put aside a culture war that, at least over the near term, you are destined to lose.

Consider a different culture war, one just as central to your faith and far more powerful in its persuasive witness.

We live in a society plagued by formlessness and radical flux, in which bonds, social structures and commitments are strained and frayed. Millions of kids live in stressed and fluid living arrangements. Many communities have suffered a loss of social capital. Many young people grow up in a sexual and social environment rendered barbaric because there are no common norms. Many adults hunger for meaning and goodness, but lack a spiritual vocabulary to think things through.

Social conservatives could be the people who help reweave the sinews of society. They already subscribe to a faith built on selfless love. They can serve as examples of commitment. They are equipped with a vocabulary to distinguish right from wrong, what dignifies and what demeans. They already, but in private, tithe to the poor and nurture the lonely.

The defining face of social conservatism could be this: Those are the people who go into underprivileged areas and form organizations to help nurture stable families. Those are the people who build community institutions in places where they are sparse. Those are the people who can help us think about how economic joblessness and spiritual poverty reinforce each other. Those are the people who converse with us about the transcendent in everyday life.

Those are beautiful words, meant sincerely. David is one of the most irenic and good-hearted people I know.

Here’s why he’s wrong, according to Samuel James:

I wrote shortly after this op-ed appeared that, though its appeal to a holistic kind of conservatism was well-intended, it ultimately presented a false choice. Conservatism in its very essence–especially religious conservatism–is about how to preserve good things from humanity’s inherent sinfulness. Because human sin and selfishness cannot be confined only to politics or sex, it’s impossible to cede the ground of human flourishing in one area in order to gain it another. Human nature just doesn’t work like that, thus, conservatism cannot either.

I had no way of knowing how well the Obama administration would prove my point.

James talks about how the administration, through its Title IX overreach, is forcing a radical view down the throats of the entire nation, with no debate. Even Michael Wear, who worked for the Obama White House as its faith outreach coordinator, was shocked:

James continues:

Brooks urges conservatives to spend their time on the “fragmentation of society” rather than the definition of marriage and family, but he misses the fact that such fragmentation begins with wrong ideas about those very things.

It is of course possible to believe in traditional things and yet live a broken, fragmented life. That’s why the partisan elements of the culture war are so deceptive. But this doesn’t mean that such belief is inconsequential or a mute partner to more “practical” life. What we call the “culture war” matters not just in the voting booth but in our daily perception of the world around us, a fact that the Obama administration clearly understands.

Read the whole thing.  [1]

Of course James is right. I’ve been working this afternoon on finishing the Politics chapter of my forthcoming Benedict Option book, and I’ve been thinking about the distinction Aristotle made between a good citizen and a good man. Ideally, there is no distinction, but as utopia is impossible, we cannot live up to that ideal. The best we can hope for is to maintain a tolerable, peaceable distance between the two categories, always striving to make the public square more virtuous. But for Christians, our liberal democracy has made that gap into a chasm. It’s not only about sex, but sex is at the heart of it.

If you want my longer take on it, read my essay “Sex After Christianity”. [5] In short, what we think about sex and sexuality goes much, much deeper than our opinion of body parts, geography, and pleasant friction. In his own post-Obergefell essay last year, Prof. Dale Kuehne prophetically anticipated this year’s developments [6], and explained why it matters:

By the time [Obergefell] came, the same-sex marriage debate was no longer about sex and had very little to do with marriage. Rather it was anchored in a redefinition of human identity itself. In the new world order, it is the individual, not biology or God, who determines identity. We are now “selves” of an increasing number of varieties and we are decreasingly male or female in a biologically meaningful sense. One day soon people will cease to use “same-sex” as adjectives for marriage. Every marriage will be the same: Selves who take vows. Two selves. Perhaps even three selves or more.

Moreover, “selves” won’t be limited to human relationships. Professor Sherry Turkle from MIT has written of the question of marriage to a robot. Marriage with animals is tomorrow as well, because it is already today in some places.

Accordingly, tomorrow’s political headlines will be of two variants. One variant are headlines that announce the expansion of the rights of transgender people as well as those whose identity goes beyond gender. Transgender is the next civil rights movement. The second set of headlines will concern the issue of religious freedom for churches and religious institutions whose views on traditionally-accepted morality are deemed discriminatory to “selves.”

What you think about sex ultimately has to do with what you think constitutes human identity. This is not something that any orthodox Christian can compromise on. Brooks writes, to Christians:

Put aside a culture war that has alienated large parts of three generations from any consideration of religion or belief. Put aside an effort that has been a communications disaster, reducing a rich, complex and beautiful faith into a public obsession with sex.

This has about it a whiff of “just burn the pinch of incense to Caesar, and get on with the rest of living out your wonderful faith.” For one thing, the Bible — both the Hebrew Bible and the New Testament — makes a big deal about sexual morality, and that, as Quaker Sarah Ruden has shown in her fantastic, must-read book [7], one of the big attractions of early Christianity to the poor in the Greco-Roman world was how it gave them and their bodies dignity, and rescued them from the sexual degradation and exploitation foisted upon them by the ruling classes. But for another, deeper reason, the meaning of the human person, in the Christian worldview, is inextricably bound with sex and sexuality.

All Christian churches are in decline, but there is a good reason why the churches that embrace the Sexual Revolution are dying much faster. [8]Sexually progressive Christianity is at best the last stop before apostasy. Maintaining Biblical sexual morality is non-negotiable for orthodox Christians — who, it must be conceded, have done a generally terrible job of countering the culture’s hedonistic catechism on this front. And, as James points out, the “culture war” touches every part of our lives.

Here are two examples from today. In the first, I was talking with a friend in Baton Rouge this morning about the Title IX thing. My friend said he went to a funeral in a small town south of Baton Rouge the other day, and was shocked to see that the funeral home had taped homemade signs over the men’s and women’s bathroom doors. The signs read: “UNISEX”.

“In Gonzales, Louisiana!” said my friend, still shocked. I was shocked too. Nobody is making them do this at a funeral home in Gonzales. They’re breathing it in the cultural air.

Another example is two comments by readers on the “NYC Hits Peak Gender Idiocy” [9]post. The first is from reader Gerbby:

A lot of readers here seem to think Rod exaggerating on the trans issue. As a millennial who recently left liberalism, I assure you, he is not. I too used to think that transgender identity was caused by some rare medical condition.

An important piece of the puzzle is that the number of people seeking treatment for gender dysphoria has skyrocketed. I don’t think there are any official numbers for the United States, but in Britain it has gone up 900% in the past 5 years. (source:http://www.bbc.com/news/uk-england-nottinghamshire-35532491 [10] )

It is hard for me to see this as anything but a cultural phenomenon. Alienated young people believe that changing their gender presentation will solve their loneliness and depression. Being part of the transgender community gives people a sense of purpose and belonging that is lacking for most of us in secular society.

There are transgender people who are also alarmed by the rapid increase in transitioners, and are wondering themselves what role social media and culture is playing in this trend. But the way the demographics work out, they are far in the minority.

The second is by reader PLJ, in response to above:

Gerbby, you’re on to something. I’ve noticed a similar phenomenon watching my daughter navigate from junior high to high school.

There’s nothing quite like having your 12-year-old come home from school and start ticking off which of her classmates are “bi”. I told my daughter it was statistically impossible for there to be that many bisexual students in her class, and that for most girls (and they all were girls), 7th grade was entirely too early to make pronouncements on their sexuality. In return I got a lot of babble about gender being fluid and non-binary.

I called a friend with another 7th-grader and asked her what the hell was going on. “Where have you been?” she laughed. “At least a third of the girls are calling themselves ‘bi’”. Man, did I loathe that 7th-grade year.

Adolescents want to feel unique and special without having to accomplish or earn anything unique and special. It’s just that stage of life. Now, thanks to SJW megaphones like Tumblr, they can declare themselves any one of a growing array of gender identities and BOOM! They’re unique and special. Moreover, they’re victimized, which really takes the unique and special to a whole ‘nother level.

The culture celebrates victims simply for existing as victims. Even our schools partake in it. Every year, my kids’ school hosts a Challenge Day program — six hours in the gym with 100+ of your classmates with no breaks. Six hours of “exercises” designed to “break down facades” and get students to reveal their “true selves”. Adults asking kids if they — or anyone they know — has ever been the victim of racism, homophobia, abuse. Adults handing twelve-year-olds a microphone and asking them to complete the sentence: “If you really knew me, you’d know that I . . . ” Disclose pain and victimization to a gym-ful of your peers? You get a gym-ful of applause. What a great lesson for the most narcissistic generation yet.

We didn’t allow our kids to participate. In a class of nearly 400, our kids were the only 2 to opt out. They sat in the library all day. The bus ride home had a few sobbing girls, but they couldn’t talk about Challenge Day — that would break the “trust”. Nope. Nothing creepy there.

Now, I’m not suggesting things like Tumblr or Challenge Day are going to actually cause transgenderism. I believe it’s a medical condition and I believe you’re born with it. But I do believe the culture at large and as it stands is going to encourage more lost and unmoored individuals to declare themselves transgendered, transracial, trans-species, or whatever type of “trans” will confer the attention and uniqueness that comes with victim status.

These people are destroying lives with bad ideas. And they must be fought. Again: I agree with Brooks that we orthodox Christians have almost entirely lost the culture war regarding the Sexual Revolution. But we cannot afford to become collaborators. To continue the war metaphor, we have no choice but to form a resistance to the Occupation, if only to save our own children and grandchildren from this insanity.

 

 

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135 Comments To "The Forever Culture War"

#1 Comment By Giuseppe Scalas On May 22, 2016 @ 8:19 pm

Michael Heraklios

It always has been a man’s world, and it always will be a man’s world. And it’s better off that day.

No, my dear friend. It’s always been a women’s world. And thanks God for that. They only time when it wasn’t was during the short time between the suffragettes and the Summer of Love.

In that interreign, women were silly enough to devolve their power for the worthless right to vote, that masculine monkey business.
But since they are better then us men, they quickly learned from their mistake and created the sexual revolution to claim their power back. Unfortunately, some of the damage done was beyond repair.

#2 Comment By Giuseppe Scalas On May 22, 2016 @ 8:23 pm

TB

Sorry, RD, we’ve decided against letting your armies regroup. Feel free to continue to write letters to your wives.

As far as I know, Rod is happily monogamous. However, polygamy of the polygynic sort is less unholy than marriage between two phallophores.

#3 Comment By Siarlys Jenkins On May 22, 2016 @ 8:49 pm

Marriage may or may not have been established by God, but it appeared early in human history as a social mechanism to provide some boundaries for the exercise of a powerful set of emotions that all mammals share, but only humans have to think about, or relate to a community setting created by more than instinct.

Those emotions exist because nothing more complex than a sponge would go through the complex and messy contortions necessary to reproduce the species unless it felt awfully good.

Whether any community has a duty to go further than that is debatable, but certainly not a matter of settled science, common decency, or equality.

#4 Comment By MichaelGC On May 22, 2016 @ 10:42 pm

John Spragge says on May 20, 2016 at 5:59 am:

Thus, the claim that Biblical morality condemns Gay men and Lesbians depends on particular readings of isolated passages in scripture and a particular understanding of creation patterns. That makes the claim of orthodoxy for this view contentious: it doesn’t appear in the creeds at all.

The bible does not condemn gays and lesbians; rather, it condemns the practice of homosexuality, as it also condemns the practice of adultery, murder, theft, falsehoods, idolatry, slander, gossip, envy, strife, divisions – all the multitudinous and perennial foibles rooted in the seven deadly sins and arising in the human heart because it is deceitful above all things and desperately wicked.

There is no “particular reading of isolated passages” required to come to this understanding about homosexuality or any of the other sins of commission or omission – the plain meaning of the passages is just there.

#5 Comment By Randal On May 23, 2016 @ 3:42 am

JonF says:

You appear to have (presumably wilfully) misinterpreted my comment about your “standing”, which was obviously directed at the logical contradiction inherent in your support for gay “marriage” and claimed opposition to other forms of marriage on the basis of a supposed “basic nature” of marriage, as some sort of personal attack on your status.

This is rather bizarre, as it is inherent in these anonymous comment forums that we each have no knowledge of the other’s wider standing, and our words stand or fall on their own merits.

There is no insult to you personally in my comment – that is a flat out falsehood (or perhaps more charitably a misunderstanding, though it seems unlikely) on your part. The insult is to your particular logical failure, to which I referred, and I need make no apology for such.

#6 Comment By Randal On May 23, 2016 @ 3:54 am

Donald Pretari says:

Randal,Can animals and robots enter into contracts?

No.

Presumably the next stage in your argument is to argue that marriage is a contract. But such a reductive definition of marriage is merely another one adopted using modern terms for the convenience of parochial modern argumentation. Marriage can be seen as a form of contract in some senses of the word, but it is not actually a mere particular form of contract – it is sui generis.

And the same argument still applies: if marriage can be redefined for social engineering purposes to apply to same sex partnerships rather than only to partnerships between men and women as, it was fundamentally conceived previously, then it can be reinterpreted in any other ways we find to be needed for the better engineering of our society (in the eyes of the particular ideologues in charge today, of course). Including to say that a man can marry his labrador, or his Ferrari.

After all, where’s the harm to counterbalance the “equality” argument?

#7 Comment By Randal On May 23, 2016 @ 5:23 am

John Spragge:

That statement exemplifies the logical fallacy of question begging, or using your conclusion as a premise of you argument. Contemporary thinking on sexual ethics grounds the notion of morality in matters sexual in the notion of adult consent, or more precisely free prior and informed consent.

I can see no question begging in my argument (I suspect you have perhaps been confused by the fact that my argument is based upon taking the position of most gay “marriage” advocates to its logical conclusion), but you would appear to be engaging in such by asserting that the modern obsession with consent must be regarded as morally fundamental.

Consent is clearly an important moral issue, but the idea that marriage requires active consent as opposed to an absence of coercion is clearly a result of modern attempts to make marriage fit into reductive social science categories as a form of contract. The idea of marriage to an object or animal that inherently cannot consent would have been in exactly the same category of inherent absurdity as the idea of marriage to a member of the same sex, until the recent attempts to re-engineer marriage for identity lobby purposes.

Indeed, to a considerable degree it seems Biblical sexual morality rests on consent and the ability to give it.

No more so than Biblical notions of marriage rested upon the fundamental male + female pairing. You can’t honestly dismiss one and seek to rely upon the other as holy writ.

Arguments against same-sex marriage exist, primarily based on the notion of limits to what we may permissibly consent to based on socially or divinely mandated restrictions. But the idea that anyone who disagrees about the restrictions may not address the issue of consent, or the limits to possible consent, such as lack of language or lack of sentience and self awareness; that argument fails.

It is implicit in the nonacceptance of the male+female basis of marriage that the established basis of marriage as it was almost universally known in the Christian world until the past few decades is open to question. Having based a position upon that, it is not open to those same people to then seek to claim other aspects of that established basis of marriage as beyond question. They can certainly say they agree with some bits but not others, but they can’t just pick and choose and define some bits as definitionally not open to variance, to suit their own convenience.

So yes, they can assert that active consent ought in their opinion to be fundamental to marriage, but those assertions have no more authority than the claims by opponents of gay “marriage” that the male+female basis ought to be fundamental to marriage, which they’ve already dismissed (mostly with contempt) as not remotely matching up to the supposed moral imperatives of fairness and “equality” that, they claim, drive their case for change.

So, contrary to your claim, the argument does not fail. It is not, as you appear to imply, an argument that people who support gay “marriage” cannot raise issues of consent at all. Merely that they cannot argue that there is any immutable basis to marriage that is not subject to redefinition to suit the needs of the moment, as those are seen by the elites of their particular society at the particular time in question. They’ve sold that pass. Active consent is merely another arguably useful (as they see it) attribute of marriage.

#8 Comment By Hector_St_Clare On May 23, 2016 @ 9:15 am

Marriage may or may not have been established by God, but it appeared early in human history as a social mechanism to provide some boundaries for the exercise of a powerful set of emotions that all mammals share, but only humans have to think about, or relate to a community setting created by more than instinct.

I think it’s fairer to say that marriage originated (as even Thomas Aquinas stated) to provide assurance of paternity. Emotions don’t necessarily enter into it.

#9 Comment By Franklin Evans On May 23, 2016 @ 11:01 am

Randal: I’ve been reading and silently ignoring your “logical” arguments so far, mostly because I couldn’t bring myself to take them or you seriously. Your recent posts suggest that you, at least, do take your arguments seriously.

The fallacy you perpetrate and perpetuate is the notion that an abstract discussion of concepts must necessarily govern the actual application of them. You conflate sacramental marriage with the actual contract defined and executed by a marriage license. That refutes your entire logical construction.

That conflation is at the heart of the moral objection to same-sex marriage. It demands control over the sacramental nature of marriage (which it never lost) while applying its strictures to the mundane and secular arrangement governed by the contract. While the comparison to interracial marriage bans is arguable, the link is the same: objections to mixed race marriages as legal contracts was based on prevailing moral demands, and no legal objection held any water. The same is true for same-sex marriages.

The proof is in the pudding. It is simple if tedious to make a (rather long) list of separate legal actions — power of attorney, declarations of joint property, etc. — that are efficiently executed by a marriage license, show efforts by same-sex couples to acquire them piece-meal, and further provide documentation of morally righteous people ignoring those legal documents or refusing to honor them.

That is the starting point for claims of unequal treatment under the law. That is the same-sex advocates’ starting point for demanding equal rights to obtaining and executing a marriage license. That is the point at which copious evidence is found that advocating for “civil union” statutes is a waste of time. The rest of your logic descends to non sequitur from there.

#10 Comment By JonF On May 23, 2016 @ 1:35 pm

Hector,

Marriage, and the things that surround it (courtship, the mythos of romantic love) serve multiple purposes. Paternity is one of them, but also more basically the need of women to have a secure source of support when their children are young. Human gestation and childhood are very long lasting periods compared with most other mammals, and humans are born so utterly helpless that woman without such a source of help would be at a terrible disadvantage, even in a tight knit hunter-gatherer clan. But beyond that, as Siarlys, posits, marriage fences sexual passion in ways that keep it from becoming too destructive. Exogamous (non-incestuous) marriage creates cross clan linkages which allow for large, complex societies to form with some protection against the clan rivalries that can tear them apart (see: the Middle East and parts of Africa).

#11 Comment By Randal On May 23, 2016 @ 2:16 pm

Franklin Evans:

Appears you are pretty much conceding my core point, that there is no plausible defence for advocates of gay “marriage” against the same arguments being used for other redefinitions of marriage. All you are doing if you claim otherwise is insisting that your personal concern with active consent (or whatever issue you hang the case on) should be treated as determinative, whereas conservatives’ concern with the male+female definition was merely their preference and could be dismissed as outweighed by the spurious “fairness” and “equality” issues.

Active consent, of course, is clearly merely a legal technicality when it comes to animals and objects, because it has no bearing on them and no possible harm is done by removing it (provided animal cruelty issues are addressed), so there is nothing to counterbalance the awful harm of the unfairness and inequality of life that such people currently labour under (as you yourself have implicitly admitted).

It is simple if tedious to make a (rather long) list of separate legal actions — power of attorney, declarations of joint property, etc. — that are efficiently executed by a marriage license, show efforts by same-sex couples to acquire them piece-meal, and further provide documentation of morally righteous people ignoring those legal documents or refusing to honor them.

That is the starting point for claims of unequal treatment under the law.

This is a basic confusion of “equal” with “same”.

Marriage treatment was “equal” before, because any man could (in principle) marry a woman and get all the same benefits, whether that man has a tendency to be tempted to homosexual sin or not. On the other hand, if it was not (as you assert) equal and fair, the exact same position applies now to those who want to marry their pets and their possessions. The only difference being that they don’t yet have a powerful enough political and business lobby group to get the definitions of words changed to suit them by state fiat.

#12 Comment By Franklin Evans On May 23, 2016 @ 3:20 pm

Randal: It appears that you prefer putting words into the “mouths” of others rather than attempting to comprehend their actual words and responding to them. When I labeled your logic non sequitur, I meant it, and no amount of spinning and creating strawmen will change that.

Perhaps I should be more specific: your logical leap from two humans to a human and non-human — animate or inanimate — has no support in the facts. That you ignore the obvious distinction between sacramental and secular — tempted to homosexual sin is the ultimate denial of it — denigrates your entire effort and permits me to call it quits.

Should you post something that both demonstrates comprehension of the distinction and attempts to make a position statement about it, I shall give it a respectful read. You’ve done neither so far.

Be well.

#13 Comment By Dr. Diprospan On May 23, 2016 @ 4:05 pm

Mr. Dreher, I too share your concern about the onset of progressive morality.
I understand your desire to protect more people against progressive morality, but the problem is that God created the freedom of choice for the individual.
Although we intuitively think that most people can not be wrong, however, God allows the majority to make the wrong choice, before deleting of the majority.
When there is a choice, there will always be some of the people who will behave negatively. 40 million HIV infected in the world. Since 1983, 25 million people have died from the infection. However, among young people in Europe it is becoming fashionably to play Russian roulette with HIV infected. I think there is no sense to pull the hair on the head in this situation. Whoever wants to – will be saved. Sometimes in these cases I think of of the Biblical Lot and his wife, who of the two chances, still prefer to choose the fatal chance. There is a nice little Russian story about defeat and the choice of fate, which I would like to share with you and the readers:
[11]

#14 Comment By Joys-R-Us On May 23, 2016 @ 7:48 pm

Randal,

there is no plausible defence for advocates of gay “marriage” against the same arguments being used for other redefinitions of marriage.

Of course there is. Marriage as understood today is an adult, human, sexually active relationship that involved the humanly responsible exchange of emotion, life-experience, partnership, love, and quite a few other things, many of which are optional, including children. That’s why the gay marriage movement has gained so much ground. A gay marriage can fulfill all of these requirements.

However, the kinds of “marriage” that you are trying to hold up as the equivalent, such as marrying a horse, a child, an inanimate object, and so on, don’t fulfill these requirements. The redefinition of marriage brought about by SSM simply doesn’t lead to any of these non-adult-human relationships you are proposing. And trying to redefine marriage so that they could would involve a massive change that no advocates of gay marriage are even thinking seriously about. The mere fact that marriage can be redefined to include SSM doesn’t mean that “anything goes”. What goes is pretty much the same thing that already goes for opposite-sex marriage these days.

On the other hand, polygamy is indeed a possibility, since it would involve human, adult relationships and responsibilities. There’s a long tradition for polygamy, and it’s already being practice in the traditional manner in many parts of the world, including especially Islamic cultures.

So yes, there are many plausible defences of your silly argument that SSM logically leads to all these other forms of marriage you say it must. It simply doesn’t. Marriage requires adult human sentience, and unless both partners are capable of that, it’s not going to fit the bill. Of course, a real exception to the “human” aspect of this definition would be sentient aliens, if we ever come into close contact with them. It’s certainly conceivable that a human and a sentient alien could marry, if the sex thing could be worked out.

#15 Comment By Siarlys Jenkins On May 23, 2016 @ 11:04 pm

However, the kinds of “marriage” that you are trying to hold up as the equivalent, such as marrying a horse, a child, an inanimate object, and so on, don’t fulfill these requirements. The redefinition of marriage brought about by SSM simply doesn’t lead to any of these non-adult-human relationships you are proposing.

Wishful thinking. Morally, accepting same sex marriage may, or may not, lead to any of the other affections you mention. But the logic of the legal argument that equal protection of the laws MANDATES that every state should license, regulate and tax same sex couples by offering them marriage licenses… would sustain the “right” to “marry whatever turns me on.”

Those who are infatuated with the beauties of SSM don’t want to hear it, but two men are not “similarly situated” to two women, much less to a man and a woman. There are innumerable human relationships that the state takes no notice of. No state law barred homosexuals from marrying, state law simply identified the union of male and female as something the state had an interest in providing with a statutory framework.

Jim Crow is about sorting people into groups and imposing different statuses on individuals by their group identity. No legislature even considered that there might be such an identity as “homosexual” in writing marriage laws.

So if “but this is the mystical essence of who and what I am, I have a right to official state-sanctioned celebration of my heart’s desire” is a constitutional argument, then those who want to marry themselves, a house, a horse, have an equally sound argument.

As a discretionary act of the legislature, there is no reason why we couldn’t license same-sex couples and decline to take notice of, e.g., the man who has a thing for a horse. But if it is a constitutional mandate, there is little to no boundary.

#16 Comment By Joys-R-Us On May 24, 2016 @ 2:53 am

the logic of the legal argument that equal protection of the laws MANDATES that every state should license, regulate and tax same sex couples by offering them marriage licenses… would sustain the “right” to “marry whatever turns me on.”

Well, no it wouldn’t. Not until horses or robots or inanimate objects are recognized as citizens of the state. To have a right to marry, you have to have rights, and to have rights, you have to be a human being. So the logic of SSM, whether you agree with it or not, simply doesn’t apply to any of those categories.

Whatever your definition of “similarly situated” might be, two men are both human beings, and they both have rights. That’s not in question, is it? They already have human sexual relationships and personal commitments, just like straight couples do. Right? You may of course argue that they don’t have this particular right, but those who disagree with you aren’t actually suggesting something totally out of the box. It’s really pretty much the same box, just oriented differently.

No legislature even considered that there might be such an identity as “homosexual” in writing marriage laws.

I’m pretty sure the same legislatures that once drafted the marriage laws also drafted laws against sodomy and other gay sex acts, and encouraged police to enforce them and harass gay men and women. And I’m willing to be that those same legislatures also spoke of homosexuals in scathingly lurid language. So yeah, they did consider gays to have a distinct identity. Anyone who’s ever been called a fag knows that.

#17 Comment By Randal On May 24, 2016 @ 4:43 am

Joys-R-Us says:

However, the kinds of “marriage” that you are trying to hold up as the equivalent, such as marrying a horse, a child, an inanimate object, and so on, don’t fulfill these requirements.

But these things you hold up as “requirements” have no particular force beyond being the current major (supposed) concerns of the particular culture of the moment. They can and will change, and they can and will be redefined as more or less important according to political needs.

The mere fact that marriage can be redefined to include SSM doesn’t mean that “anything goes”.

But clearly it does. The idea that marriage could not require male+female would have been at least as difficult to grasp or to view as anything other than absurdity if not outright evil, for the vast majority of the world’s population outside the particular, parochial context of the US sphere liberal democracies in the past couple of decades, as the notions of “marriage” to objects or to animals are to you now.

All you are saying is that the advocates of gay “marriage” don’t necessarily want the kinds of further changes I’ve suggested, and I don’t doubt you are correct in that. My point is that the same basic arguments the gay “marriage” advocates used to destroy resistance to their desired change (fairness and “equality” demand it, because otherwise it is denying the opportunity to marry to people who want to marry someone [or something] that falls outside the existing definition), apply equally to advocates of extending marriage to cover animals and objects. And the only realistic defence against those arguments – that marriage has a core definition that ought not to be changed arbitrarily for the political convenience of the moment – has been destroyed by them.

Marriage requires adult human sentience

So you insist. But your insistence has no more force than the insistence of those before you that marriage requires male+female.

#18 Comment By Randal On May 24, 2016 @ 4:47 am

Franklin Evans says:

“[Handwaving stuff insisting he’s right and I’m wrong]”

When you are ready to address the points made, feel free to do so. If you prefer not to, that’s fine too.

#19 Comment By Franklin Evans On May 24, 2016 @ 9:48 am

Siarlys, you and I have been around this carousel too many times, so I’m going to rudely assert that you resemble the following:

“People are stupid; given proper motivation, almost anyone will believe almost anything. Because people are stupid, they will believe a lie because they want to believe it’s true, or because they are afraid it might be true. People’s heads are full of knowledge, facts, and beliefs, and most of it is false, yet they think it all true. People are stupid; they can only rarely tell the difference between a lie and the truth, and yet they are confident they can, and so are all the easier to fool.”

Wizard’s First Rule, Terry Goodkind

Randal’s insistence on the slippery slope, edging towards shrill, is that kind of foolish.

#20 Comment By Franklin Evans On May 24, 2016 @ 10:19 am

Randal, your logical fallacies are clear, and have been clearly refuted in detail by a round dozen others on this thread. As for the rest, that you want a thing to be true is not proof of its veracity.

When you are ready to address the points I’ve made, feel free to do so.

#21 Comment By Joys-R-Us On May 24, 2016 @ 4:05 pm

Randal,

But these things you hold up as “requirements” have no particular force beyond being the current major (supposed) concerns of the particular culture of the moment.

As it ever was. All “requirements” for marriage merely reflect the current culture. When the culture was against SSM, it required opposite sex partners. Now that it’s not, it doesn’t. Pretty simple right?

They can and will change, and they can and will be redefined as more or less important according to political needs.

Undoubtedly. But that’s no reason to presume that because SSM is now legal and culturally accepted by a majority, that these other forms of marriage you are proposing will be. I suppose in some alternative universe that might happen, but you’re really not giving us any reason to think it would happen here in this one. Like I say, it would not just involve people “marrying whoever they want”, it would also involve our culture giving equal legal rights to machines and animals and underage children.

It also presumes that the pure motive of SSM, and of modern liberal culture altogether, is simply one of unrestricted sexual pleasure at all times with anything at all. That’s just not what’s going on with SSM, or with the culture in general, especially amongst leftist progressives, who are actually pretty prudish and conservative in the personal sense when it comes to sexual matters. The leftist sexual ideal is of an equal partnership in which people are highly self-aware and considerate of one another, and of their community. It allows all sorts of variations, but only if they are conducted in a certain manner.

The idea that marriage could not require male+female would have been at least as difficult to grasp or to view as anything other than absurdity if not outright evil, for the vast majority of the world’s population outside the particular, parochial context of the US sphere liberal democracies in the past couple of decades, as the notions of “marriage” to objects or to animals are to you now.

That’s certainly true for the most part. But that doesn’t mean that “anything goes”. When the US formed its democracy, that too was unimaginable to most of the world through most of history. It didn’t literally devolve into a chaos of mob rule and “anything goes”. Like everything in this world, it’s got its problems, but they are not a sign that it’s inherently wrong to have a democracy, and that we should be ruled by Kings and nobles instead. And SSM is indeed a reasonable evolution of democratic ideals. I’ve thought so since I was a kid.

All you are saying is that the advocates of gay “marriage” don’t necessarily want the kinds of further changes I’ve suggested, and I don’t doubt you are correct in that.

Good. I’m glad you’re being reasonable.

My point is that the same basic arguments the gay “marriage” advocates used to destroy resistance to their desired change (fairness and “equality” demand it, because otherwise it is denying the opportunity to marry to people who want to marry someone [or something] that falls outside the existing definition), apply equally to advocates of extending marriage to cover animals and objects.

This is where you are not being reasonable. The arguments favoring SSM simply don’t extend to non-humans or children. Not just because progressives aren’t willing to go so far yet, or even because as you say, they don’t even want that, but because there’s simply no plausible connection between the two. There would first have to be a revolution in our thinking about inanimate objects and animals that simply isn’t happening. I suppose the only way I could imagine something like this happening is 1) if robots became so advanced that machines really were sentient and virtually indistinguishable from humans, and were given equal rights accordingly, and 2) if genetic engineering of animals did the same for them. In those cases, marriage rights might well be extended to them, as would be appropriate. But that’s all SF, not something applicable to current animals or technology.

And the only realistic defence against those arguments – that marriage has a core definition that ought not to be changed arbitrarily for the political convenience of the moment – has been destroyed by them.

This doesn’t make sense. The definition of marriage you want to defend was itself simply a result of the political conveniences of past moments, and cultural needs of people living in other times. Mostly about passing on property and titles to heirs. Marriage has changed so much, long before SSM came along, that by now it actually is a reasonable thing. And all of those changes are the result of the culture itself changing, and having different needs than in the past. Those needs have to be met every bit as much as the needs of the past did in their time. And it’s definitely not arbitrary. It’s being done because gay people also need marriage. It’s not an arbitrary whim. It’s a fairly universal human desire based on millions of years of pair-bonding in our evolutionary history.

“Marriage requires adult human sentience”

So you insist. But your insistence has no more force than the insistence of those before you that marriage requires male+female.

It has the force of both logic and cultural necessity, not to mention basic human fairness and compassion. That much of the world has a long history of suppressing gay people and their ability to form lasting bonds of marriage with one another is not an argument that it’s right to do that. That argument has literally had its day in court, and it’s fallen short. So it’s not merely my insistence, it’s the insistence of the culture we live in. Disagree with that if you like, belong to a church that has different notions about marriage if you like, it’s a free country, but let’s not pretend this was some arbitrary whim. It even has the force of law behind it. And that is long overdue.

#22 Comment By Franklin Evans On May 24, 2016 @ 4:43 pm

Joys-R-Us: You have an apparently inexhaustible supply of patience that puts me to shame. I salute you.

#23 Comment By Franklin Evans On May 24, 2016 @ 4:49 pm

Randal, this is a sincere attempt to make my point without resorting to sarcasm.

Your entire logic fits very well under the post hoc ergo propter hoc fallacy. Perhaps I’ve misread you, and that would be my failing, but so far you’ve not offered any support to your logical conclusions about animals and objects beyond (my phrasing) “it will happen because it will happen”.

Because of this — same-sex marriage — therefor that — marriage with non-humans.

As for the details, Joys-R-Us ably speaks for me, and absolves me from penance for my impatience with you (that was self-directed sarcasm). Joys makes points of direct substance. Address those, and I promise to give your response a respectful reading.

#24 Comment By Siarlys Jenkins On May 24, 2016 @ 10:25 pm

Franklin, I don’t know why you would associate me with Randal. It is possible that Randal would be a bit happier living under my dictatorship than that of Joys-R-Us … if I could write the laws my way, that is, but that doesn’t mean our premises, methods, or purposes are identical.

Joys-R-Us speaks as her name suggests, of the joys of humanity, when we are talking about rather complex legal propositions.

Whatever your definition of “similarly situated” might be, two men are both human beings, and they both have rights.

They EACH have “rights,” not because they are men, nor because they are two, but because each of them is a human being. The two as a pair do not have a “right to marry,” EACH of them, independently, has a right to marry, to the same extent, and on the same terms, that apply to every other human being. As it happens, human beings come in male and female variants, and marriage has specifically to do with the relationship of one variant to the other.

A fundamental problem I’ve seen from Goodridge onward is that the courts have talked about the “right to marry” and examined whether some demographic group has been “denied the right to marry” without EVER stopping to DEFINE THE TERM. That is rationally, factually, logically, juridically, unsound. It is unworthy of a sentient person who expects to be taken seriously. Incidentally, the various legal teams defending “traditional marriage” never articulated this point coherently, and I will never forgive the obsessed fools for their omission.

There is nothing offensive to the federal constitution about a law that identifies a certain objective human bond, e.g. the union of male and female, and builds a statutory framework around it while ignoring a host of other human bonds, e.g., the possibility that two men might have mutual affections.

If, arguendo, marriage IS a legal framework for the union of a man and a woman, then any man, and any woman, may enter into it, and any prohibitions must apply equally to all (e.g., NO man or woman may marry a sibling, or, in many states, a first cousin).

They already have human sexual relationships and personal commitments, just like straight couples do.

WRONG. Very wrong. Blissful dream-weaving. Whatever they share, it is NOT “just like straight couples.” It is functionally, biologically, socially, physically, DIFFERENT, and different in significant potential outcomes. However blissful the relationship, it may be utterly irrelevant to the general community. In fact, I believe it probably is. I see a fundamental constitutional integrity to Lawrence v. Texas because it was based on the right to privacy. Sure, each of these men has a right to give their affections to a male partner and move in with them. But there is no reason that the legislature need take notice of it.

On the other hand, if a majority of the legislators in New York vote to license, regulate and tax same-sex couples, and issue them marriage licenses, well, again, so what? If they can do that and get re-elected, that means a majority of the population are OK with it, at least don’t consider it a critical issue to get exercised about. So be it.

those who disagree with you aren’t actually suggesting something totally out of the box

What box are you talking about? What you are saying betrays a pathetic ignorance of the function and history of a constitution. You are pursuing the line of emotion (not reason) that assumes if I want something bad enough or feel passionate enough about it, then BY GOD I HAVE A CONSTITUTIONAL RIGHT TO IT (or some poor oppressed demographic that my heart goes out to has a right to it).

A constitution is not the ultimate appeal to Get The Right Thing Done. It is a jurisdictional document. The thrust of Obergefell lies outside the jurisdiction of the judiciary (and I can cite from The Federalist Papers that judicial review is a real, intended, and necessary function). Defining marriage is within the jurisdiction of the state legislature. So, if you have a case about what would be good public policy, go to the legislature, not the courts.

To say “well, I have my opinion and you have yours” is the second to last refuge of the incompetent. The foundation on which you offer your opinion is a poorly chosen foundation. IF the whole SSM battle had been fought out in the legislature, then the hoary ominous images that legalized bestiality and pedophilia etc. are next would not arise. The legislature is NOT bound to exercise constitutionally valid discretion in exactly the same way for every conceivable circumstance. BUT, the appeal to “equal protection of the laws” did indeed open Pandora’s box.

Unfortunately, you are too chipper about the beauty of the victory you admire, and too hypnotized by the boundaries of what you consider sound policy, to see how you opened a door that could have been kept closed.

I’m pretty sure the same legislatures that once drafted the marriage laws also drafted laws against sodomy and other gay sex acts,

“I’m pretty sure” would get you laughed out of a high school forensics competition. It would have no standing as testimony in court or before a legislative committee. Grow up a little before you pretend that your vapid thoughts are serious argument.

And, assuming arguendo that you are right, so what? Marriage laws are a civil matter. Laws against sodomy are a criminal matter. The latter were, rightly in my seldom humble opinion, declared null and void on grounds of privacy — it is simply not a matter for the police powers of The State. Marriage is what it is, whether sodomy is a criminal offense or not.

I have yet to run across any sodomy statute which contemplated that there was such a thing as “a homosexual.” The demographic category was virtually unanticipated. Sodomy was considered a bad habit that a man might fall into… e.g., a husband might betray his marriage bed and endanger the health of his wife by indulging in a morally questionable past-time. EVERY man was considered vulnerable, and EVERY man barred from committing it. King, princes, courtiers, soldiers were, if anything, bisexual, rather than by nature “gay.”

One thing that socons and those delirious with the sheer beauty of gay marriage have in common is that they look at these arguments, first and foremost, as “pro-gay” or “anti-gay.” Lawrence was about “Celebrate Sodomy,” not a routine application of the well established right to privacy. Prop 8 was “anti-gay,” not a scruple as to the duty of the sovereign people to go out of their way to acknowledge every foible that some citizen somewhere might entertain. Etc. That syllogism has served us very badly.

Among other things, it has created a LEGAL framework that could EASILY be applied in precisely the manner Randal fears… and it didn’t have to be that way at all.

#25 Comment By John Spragge On May 25, 2016 @ 4:37 am

MichaelGC wrote this:

There is no “particular reading of isolated passages” required to come to this understanding about homosexuality or any of the other sins of commission or omission – the plain meaning of the passages is just there.

The passages from Genesis and Jude regarding Sodom plainly describe gang rape, and plainly indicate the men of Sodom routinely gang raped both strangers and young girls. The assumption their sin lay in the same sex nature of some of their sexual violence depends on an interpretation of the text. The text of Romans I plainly associates same-sex behaviour with pagan ritual, and in fact we have evidence, literary and archaeological of such rituals in Roman society at about the same time Paul wrote. That Paul would have had the same attitude to a committed, faithful relationship between two me depends, again, on the reading, the interpretation.

But the problem goes deeper, because many passages in the Bible have “plain” meanings that Jesus’s summary of the law (Matthew 22:37-40, Mark 12:29-33, Luke 10:25-37) contradicts. It follows that we must have read these passages incorrectly, however plain their meanings may appear to us.

Randall wrote this:

Merely that they cannot argue that there is any immutable basis to marriage that is not subject to redefinition to suit the needs of the moment, as those are seen by the elites of their particular society at the particular time in question.

Free speech gives you the right to use the word “marriage” for anything you want: I have seen the word used in relaion to engine components and the elements of a picture. The definition of marriage in both the Bible and in American society has continually evolved. In that sense, the definition of marriage has always depended on the needs of he society it takes place in. The logical flaw with Randall’s expressed view arises from the claim that allowing same sex marriage necessarily abandons any principle that would prevent a person from marrying the Asimo or Rover. Such a principle clearly exists, and current and traditional marriage laws clearly embody it: the [12].

#26 Comment By Franklin Evans On May 25, 2016 @ 9:43 am

Siarlys, I’m simply reminded of my frustration with your argument, and I regret the implied ad hominem.

You cannot say in one breath that every man has the right to a duly executed marriage license and the actual and implied contracts thereof, when the mere fact that the other person on the license is also a man is officially banned.

When the two men make the effort and spend the several months to a couple of years serially and individually executing the legal documents and contracts both actual and implied — which do not, officially or otherwise, exclude two people of the same gender, i.e. power of attorney — and government officials along with duly authorized providers of public services, i.e. hospitals, blithely ignore or violate them because the two parties are of the same gender, there is no such thing as equal treatment under the law.

I don’t know why you miss the point. This is not about similarly situated. This is about a clear act of discrimination and a clear violation of rights. You can argue all day about similarly situated — which smacks of “natural law”, which is forever stained by religion — and you will always stumble on the fact that the argument is from the sacramental marriage POV. The entirely secular nature of contracts has no bearing on religion, and the only link is that a religiously credentialed person is authorized to execute a secular legal document.

In the meantime, self-appointed religious righteous in city halls and departments of records are on the front line of the violation of rights.

By the way: what, if anything, do you see as ethical about this whole mess?

#27 Comment By Joys-R-Us On May 25, 2016 @ 2:38 pm

Siarlys,

Not sure what motivated you to engage in so much pointless ad hominem, but you should be aware that it comes off as very immature and it’s fruitless to counter most of it. So I’ll limit myself to the basic points you are trying to make.

About the right to marriage and discrimination: If Jack has a right to marry Jill, but Sally does not because of Sally’s gender, that’s a prima facia case of discrimination based on gender. To justify that discrimination, the courts must find just cause. That just cause can’t merely be some traditional “definition” of marriage, it has to meet a series of legal standards that are perhaps too complex to get into, but the gist of it is that there has to be a strong state interest involved. The age of consent would be one example of that. But the courts have not found anything that provides just cause to deny Sally the right to marry Jill.

What you have argued simply doesn’t meet the standards our constitutionally based legal system requires. That system does not bow to traditional moral notions of what marriage is, or your notion that it can only apply to the opposite sex due to biological differences. It only bows to the legal framework created around marriage over the years. Those laws already had no biological requirements to them other than gender, age, and close familial relations. The ability to produce children was not one of them. The latter two can be justified based on a number of factors that the courts find convincing. The first, they do not. Whether you oppose that view or not, you would still have to come up with a convincing legal argument that would persuade a learned court to allow discrimination based on gender. You haven’t done that, plain and simple.

Whatever they share, it is NOT “just like straight couples.” It is functionally, biologically, socially, physically, DIFFERENT, and different in significant potential outcomes.

There are many things that are different. Living in a mansion is different than living in a shack. Yet buying or living in them is protected from discrimination by federal law. A woman has the same right to these dwellings as a man. To rule otherwise, the court would have to find some compelling argument that requires the state to not merely allow, but to require discrimination based on gender, which is what it was doing in forbidding same-sex couples to marry.

EACH of them, independently, has a right to marry, to the same extent, and on the same terms, that apply to every other human being.

I agree. That’s why not allowing Jill to marry Sally when Jack can is a violation of the rights of both Jill and Sally. The terms are manifestly not the same. They don’t have the same rights that Jack has. The have ‘separate by supposedly equal’ rights, that have the effect of denying Jill and Sally their enjoyment of legal marriage with their chosen partner. If we had laws requiring that the state discriminate based on race in issuing marriage licenses, those laws would be struck down also. Oh, right, they were. Even though they were “equally enforced”, in that whites could marry other whites, and black could marry other blacks, etc. The courts simply couldn’t find a valid reason or just cause to justify that discrimination in the law.

The right to marry has already been ruled to be a fundamental human right by the court, precisely because so much ‘joy’ is dependent on it. You may disagree, especially if you have not had a happy life with the opposite sex, but many have. No one is legally entitled to joy, but they are entitled to pursue it as they see fit, unless that interferes with clear state interests. The burden is on the state to enter evidence of that state interest. In all the gay rights cases thus far, that has simply not been done. And you have not done that either. You have merely asserted a “difference” that doesn’t have legal standing, like the difference between a mansion and a shack. Both are still dwelling places, just as committed gay love-relationships are still committed love-relationships. They meet all the same qualifications as straight love-relationships, other than gender. And meeting your ‘requirement’ for gender simply isn’t significant enough a difference to justify excluding Sally from marrying Jane when Jack can.

Now, it of course may be significant enough a reason for you not to marry Jack, but that has no bearing on Jill and Sally. You are free to believe whatever you like about marriage, give it whatever definition you like. But the law is not bound to definitions that are unjust. It can require that justification for discrimination be shown, especially about something as important to many human lives as marriage. And it hasn’t been.

I have yet to run across any sodomy statute which contemplated that there was such a thing as “a homosexual.” The demographic category was virtually unanticipated.

This is absurd. Everyone with the slightest awareness of sodomy also knows that there are some men who attracted to the opposite sex and frequently engage in such acts. Everyone who grows up in this country knows that gay people exist, and always have. The Bible certainly noticed it, and outlawed that sort of thing. But that’s all cultural. Unfortunately, the laws of the land until recently reflected a culture that didn’t respect individual rights much, especially if one didn’t follow the mainstream.

Legally, you’re right that there is no category of “gay people”. But Obergfell wasn’t based on such a category. In fact, it struct down laws that seemed to support such notions. There have been many laws on the books, and there still are, that allow discrimination based on being gay, which means being someone who primarily engages in homosexual acts. Those two will probably not last. Obergfell didn’t have to create some new legal gender category of “gay”. It merely asserted that the right to marriage includes the right to marry whomever you want, as long as state interests were not violated.

You seem to assert the idea that ‘state interests’ can simply be asserted by the state, and the courts must oblige. But that isn’t how the legal system works. The burden of proof rests on the state to justify those assertions, not on the citizen. And that burden of proof has not been met. It’s really as simple as that.

#28 Comment By Joys-R-Us On May 25, 2016 @ 2:48 pm

Franklin, thanks for the shoutout. I appreciate your appreciation.

#29 Comment By Siarlys Jenkins On May 26, 2016 @ 10:58 pm

Joys-R-Us, not sure what motivates you to lead off with so much to quoque angst, but your immaturity is showing again. Relax, as you grow up, you will realize there is more to truth and justice than how you feel at the moment.

If Jack has a right to marry Jill, but Sally does not because of Sally’s gender, that’s a prima facia case of discrimination based on gender.

What a foolish piece of nonsense. As I said, one must define what this “marriage” thingy IS before one can meaningfully discuss who can marry whom, and if anyone has been “discriminated against.” And that’s before we even get to, is this INVIDIOUS discrimination or rational discrimination?

Reading further into your lengthy screed, virtually every argument you made fails on this ground alone. Your argument is tautological. I’m right, therefore, I’m right.

What you have argued simply doesn’t meet the standards our constitutionally based legal system requires.

What alternate planet are you living on? What do you know about “our constitutionally based system,” other than a fervent belief that what you personally consider good and right must therefore be constitutionally guaranteed? Cite precedent, offer at least a synopsis of a legal analysis. You’re just blowing hot air and declaring it to be “our constitutional system.”

Everyone with the slightest awareness of sodomy also knows that there are some men who attracted to the opposite sex and frequently engage in such acts.

That is not universal to human history. It is a very recent concept. Now there is a plausible argument that in the past, men who WERE oriented primarily to other men simply didn’t express it that way and married out of conformity, but that isn’t a proven fact either. I’m still wondering whether the prevalence of homosexuality as an issue was the result of increased mercury poisoning. Once we get the environment cleaned up, the the estrogens out of our food containers, maybe in one hundred years we’ll find the percentage of homosexual desire drops by a factor of three? Who knows?

The right to marry has already been ruled to be a fundamental human right by the court, precisely because so much ‘joy’ is dependent on it.

Are you referring to Loving v. Virginia? I can’t count the number of times I have debunked what is called “the Loving analogy.” The court which made that ruling had a very definite notion of what the definition of “marriage” was and what the “right” to enter into it consisted of. It was no coincidence that Mr. Loving was a man and Mrs. Loving was a woman.

Legally, you’re right that there is no category of “gay people”. But Obergfell wasn’t based on such a category. In fact, it struct down laws that seemed to support such notions.

Now you’re being delusional again. I know you are passionate about what feels right to you, but don’t mistake that for either truth or valid jurisprudence. The laws struck down by Obergefell by and large made no reference to “gay people” as a category. And, to claim “discrimination” they had to band themselves together AS a demographic category, unlike, e.g., people of African descent, who were TOLD in no uncertain terms that they WERE a category.

You seem to assert the idea that ‘state interests’ can simply be asserted by the state, and the courts must oblige. But that isn’t how the legal system works. The burden of proof rests on the state to justify those assertions, not on the citizen.

Here again, you spout vapid opinion and betray gross ignorance of constitutional law. Our constitution went to some length to RESTRAIN the police powers of the state, in enumerated ways, while keeping particularly the federal government, but to some extent the states as well, within certain defined powers that were granted.

But, to the extent that the state is exercising an authorized power, there is not a universal obligation that the state has a “burden of proof” every time it acts. Our constitutional jurisprudence protects the right to privacy, but that is a far cry from an affirmative obligation on the state to provide something merely because some citizen would like to have it.

Really, you must take some time to do some studying before you expect to be taken seriously. Spouting axioms is not proof of anything.

#30 Comment By Siarlys Jenkins On May 26, 2016 @ 11:21 pm

I now turn to Franklin, who often makes an effort to know what he is talking about, and writes very effectively because of it. Unfortunately, in this instance, Franklin is moved by compassion to the point that he loses sight of the legal issues.

Yes, Franklin, I know you are frustrated by my argument, because it is an obstacle to the compassion you believe is only right. Let me address that compassion first. There are reasonable arguments to be made, as a matter of sound public policy, that same-sex couples should be issued marriage licenses. I’m not particularly moved to make that a priority, but neither would I move heaven and earth to prevent such a thing.

However, just because something would be good public policy does NOT ipso facto mean that it is constitutionally mandated.

This is nonsense:

You cannot say in one breath that every man has the right to a duly executed marriage license and the actual and implied contracts thereof, when the mere fact that the other person on the license is also a man is officially banned.

Of course I can. What this all hangs on, again, is, what IS this “marriage” thingy everyone is talking about? Assume, arguendo (and I know you know what that means — it doesn’t commit you to the truth of the proposition) that marriage IS the union of a man and a woman? Historically speaking, marriage was created and defined around a specific relation of male to female. To say “a man has a right to marry” would therefore mean, the law will issue a marriage license to any man who presented himself with a woman willing to marry him.

To refuse a license to two men, or two women, does not mean “gays can’t marry,” but “you two don’t constitute a marriage.” There is a difference. You don’t want to look at this difference, because it interferes with your compassionate desire that your good neighbors who are gay ought to have a marriage license. Fine, vote for it. Every matter of good public policy is not constitutionally guaranteed. It might well be a good idea.

Now, I must of course back away from the arguendo and ask, if that is NOT the definition of marriage, then WHAT IS? Remember, you must offer a clear definition that has a more consistent rational basis than piling wish list upon wish list. As far as I can see, it comes down to something like “marriage is a contract binding two adult persons who want to share their household and perhaps their finances and in some manner stimulate each other sexually.” Frankly, if that’s what its all about, we might as well abolish marriage laws entirely. Its just laughably vague.

The clear act of discrimination you reference is, when two individuals have entered into a private contract, which is lawful for any two individuals to enter into (quite irrespective of whether there is a sexual motivation or not), and then agencies, public and private, REFUSE to honor what is objectively a LAWFUL CONTRACT on the ground that “we don’t like gays,” well THAT, ipso facto, constitutes invidious discrimination. That’s worth fighting about.

ONE possible solution would be, well, we’ll make it the law that they can get a marriage license, and THEN nobody will DARE to disregard it. But again, the issuance of a marriage license, or the notion that two persons of the same sex can constitute a marriage at all, is not constitutionally guaranteed. Suing the bastards for huge damage awards because they refused to honor a lawful contract is also a valid way to go. And yes, I know, attorneys are expensive, but so is the institution having to pay the successful plaintiff’s legal fees.

“Similarly situated” is of the essence to any claim that one has been denied the “equal protection of the laws.” It is at the heart of the earliest Supreme Court jurisprudence attempting to make practical sense of applying the Fourteenth Amendment. It does not originate in “natural law” or theology.

As to the “implied ad hominem,” a tendency to indulge in vapid rants motivated by passion but lacking in knowledge is one of the great ailments of our age, and I have indeed made a practice to come down hard on it. Generally, those who choose to pontificate their angst are immune to both facts and reason, but I have some hope that others, reading the exchange of comments, will recognize the distinction.

#31 Comment By Joys-R-Us On May 27, 2016 @ 5:36 am

Siarlys,

I think you must be the only one on this forum who takes you seriously. I’ve tried, but I give up.

#32 Comment By Franklin Evans On May 27, 2016 @ 2:53 pm

Siarlys, there are two distinct definitions of marriage. My core point, lost in both our ever-increasing amounts of words, demands that the two definitions be 1) codified in law and 2) administered as codified.

I call your attention to my poor attempt to describe the equal treatment under law reality. Allow me to reiterate.

Under the marriage contract, as established by the legal execution of the marriage license, is precisely equivalent — precisely — to a list of separate contracts, licenses and legal declarations all of which are available to any two or more people regardless of their genders.

Definition one: the solemnization of the custom of two people being recognized as a social unit under the strictures and beliefs of a common identity group usually referred to as a church or religion.

Definition two: the result of the execution of the marriage license.

Similarly situated is an opinion, a political position, and very often how religious believers try to hide the fact that the definition of marriage over which they demand control is the legal one, not the sacramental one. This has nothing to do with my compassion. Please accept my thanks for acknowledging me that way, I should have mentioned by now.

I am less well generally versed in litigation than you are. My area of confidence is quite narrow. I would be willing to listen to and be convinced of your argument if you can come up with an actual rebuttal to the simple fact that pile of separate documents available to every same-sex couple cannot be the basis for equal treatment when a man and woman have the right to execute a single document in the place of that pile, and further nearly every same-sex couple who has waded through and executed that pile still suffers unequal treatment under the applicable laws in violation of those documents, and nearly all of those cases because the violation is on the basis of a religious objection to same-sex marriage.

Equal treatment under the law gives neither attention nor credence to my compassion. So far, the only comprehension I obtain from the similarly situated argument is that it is a dodge. The courts may have ruled otherwise, may continue to do so, but I’ve not seen so far a clear justification for denying the power of attorney to a man who is legally and by his lights morally responsible to make decisions on behalf of the other party to the POA, who is also a man, and the mere fact that he is a man is taken as justification to deny his rights. As the first and only necessary test, when that violation is around the health and potential death of the second party, telling the couple to go to court first matches very well with my compassion while being an excellent reason to summarily sanction the violating party.

#33 Comment By Siarlys Jenkins On May 28, 2016 @ 7:34 pm

I responded briefly to Joys-R-Us’s Parthian shot (which I fear went astray).

Franklin, there is not much to disagree on in your latest reiteration. However, “similarly situated” is fundamental to Fourteenth Amendment jurisprudence, and you continue to try to brush it aside in your eagerness to arrive at a result you believe to be just.

We could start with the Nolo dictionary definition:

This term is often used in discrimination cases, in which the plaintiff may seek to show that he or she was treated differently from others who are similarly situated except for the alleged basis of discrimination. For example, a plaintiff who claims that she was not promoted because she is a woman would seek to show that similarly situated men — that is, men with similar qualifications, experience, and tenure with the company — were promoted. This term is also used to define the group of people on whose behalf a class action may be brought: Everyone in the group must be similarly situated as to the issue(s) litigated. For example, in a case alleging that a credit card company charged improper fees, only people who had a credit card with that company during the time when the improper fees were imposed could be members of the class.

There is a detailed analysis of the concept, in its history, and as applied to the question of SSM, at this url:

georgemasonlawreview.org/wp-content/uploads/2014/03/18_3-Shay.pdf

It reaches a conclusion you will be pleased with. However, it does give an idea of the depth and long standing of this term. I differ from the authors, because I apply Occam’s Razor to the question. Marriage laws as written are inclusive of all who wish to enter into marriage, and are not exclusive of any given demographic.

I am also not entirely satisfied with the cited scholarly article in which Tussman and tenBroek (1949) explained that

[a] reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law.” 53 “Similarly situated” could not mean merely that everyone in the class possessed the “classifying trait,” they wrote, because that would produce the tautological result that a law complies with equal protection if it “applies equally to all to whom it applies.” 54 If that were true, “a law applying to red-haired makers of margarine” would not violate equal protection. 55

There are some valid points in that analysis, but when the Supreme Court first addressed what “the equal protection of the laws” meant, the bare words could mean that five year olds are as entitled to vote as 35 year olds, etc. (We need not address, felons are entitled to live free from imprisonment, because the 13th Amendment explicitly allowed for deprivation of liberty upon conviction of a crime).

An early Supreme Court case that is of some relevance is Yick Wo v. Hopkins, 118 U.S. 356 (1886), an opinion which stated:

This erroneous view of the ordinances in question led the Supreme Court of California into the further error of holding that they were justified by the decisions of this court in the cases of Barbier v. Connolly, 113 U. S. 27, and Soon Hing v. Crowley, 113 U. S. 703. In both of these cases, the ordinance involved was simply a prohibition to carry on the washing and ironing of clothes in public laundries and washhouses within certain prescribed limits of the city and county of San Francisco from ten o’clock at night until six o’clock in the morning of the following day. This provision was held to be purely a police regulation within the competency of any municipality possessed of the ordinary powers belonging to such bodies, a necessary measure of precaution in a city composed largely of wooden buildings like San Francisco, in the application of which there was no invidious discrimination against anyone within the prescribed limits, all persons engaged in the same business being treated alike, and subject to the same restrictions and entitled to the same privileges under similar conditions.

For these reasons, that ordinance was adjudged not to be within the prohibitions of the Fourteenth Amendment to the Constitution of the United States, which, it was said in the first case cited,

“undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that, in the administration of criminal justice no different or higher punishment should be imposed upon

Page 118 U. S. 368

one than such as is prescribed to all for like offences. . . . Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application if, within the sphere of its operation, it affects alike all persons similarly situated, is not within the amendment.”

Now, the pro-SSM argument, with regard to similarly situated, would analogize that since same-sex couples and opposite-sex couples both are seeking legal recognition of a set of romantic affections presumed to include some sort of sexual hormonal attraction leading to long-term commitments commingling residence and finances… ergo, they are all similarly situated.

The opposite argument, which I believe has merit, would analogize that just as a man, or a woman, going into the laundry business, is different from a man or woman going into the insurance business, and the two lines of business may be subject to different regulation, so, a man and a woman making a mutual commitment as a couple is different from two men making a mutual commitment as a couple, which in turn is different from two women making a commitment as a couple. So long as any man or woman who chooses to enter into what the state licenses as marriage has equal opportunity to do so, the fact that the state does not impose the same licensure or regulation upon various other human relations that any man, or any woman, may lawfully enter into, does not violate the equal protection of the laws.

Your partner in the Evans-Manning designation has pointed out, correctly I believe, that there is a huge difference between saying each PERSON is entitled to equal protection, and saying that every conceivable institution or human relationship is entitled to equal protection.

This is by no means an exhaustive analysis. I have gone on at some tedious length with extensive citations simply to highlight that this is not a subterfuge for theological prejudices, it is not an appeal to natural law, it is a complex legal term about which reasonable minds may differ, but which needs to be addressed squarely in all its complexity. It is not a light consideration.

You provide similar lengthy and sometimes tedious analysis of how benefits law works, because you know a good deal about it, and many ideologically motivated commenters try to blithely brush it all aside because it is inconvenient to their preferred outcome. When one cites to the constitution, one must face the constitution, and constitutional jurisprudence, in all its complexity.

Now if I were called upon to prepare a brief refuting Judge Vaughn Walker’s ruling that overturned Prop 8, I could not do so in the same dismissive manner I respond to Joys-R-Us. Walker’s opinion is thoroughly cited, carefully reasoned, comprehensive, and it would take some detailed work, many hours of it, to produce even a plausible refutation. I believe it could be done, but it would not be light work.

#34 Comment By PoppaG On May 31, 2016 @ 12:03 am

Rod, you are incorrect on the question of the growth of the Orthodox Church.

While the Greeks and Ukrainians in America are shrinking for lack of immigration, just about everyone else is growing (for various reasons); the largest Orthodox nations are seeing real growth through post-Communist conversion:

Moscow Patriarchate holds the 2nd place in the world for the number of believers among other Christian Churches

Moscow, May 27, Interfax – Orthodox world unites over 300 million believers, over half of them are believers of the Russian Church, head of the Synodal Department for External Church Relations Metropolitan Hilarion of Volokolamsk reports.

“As to the number of believers it (the Russian Church – IF) holds the second place in the world after the Roman Catholic Church. The Russian Orthodox Church has 193 dioceses, 354 hierarchs, about 35,000 churches, about the same number of priests, almost 5,000 deacons,” the hierarch said speaking before chairs, lecturers and cadets of the Military University at the Russian Defense Ministry.

He told that since 1988, when the 1000-year anniversary of Russia’s Baptism was celebrated, the Moscow Patriarchate opened a thousand churches a year, which makes three churches a year.

“There has never been such unprecedented growth of the Church in history,” the metropolitan resumed.

[13]

[NFR: Wait, I thought we were talking about the United States. — RD]

#35 Comment By Gail Finke On June 1, 2016 @ 12:19 pm

Joys-R-S wrote: “Marriage as understood today is an adult, human, sexually active relationship that involved the humanly responsible exchange of emotion, life-experience, partnership, love, and quite a few other things, many of which are optional, including children. That’s why the gay marriage movement has gained so much ground. A gay marriage can fulfill all of these requirements.”

But that is not what marriage is, that’s simply how you say “marriage is understood today.” The only way to understand marriage this way is to change the definition from what it has been understood as for all cultures and religions through all time. If that’s okay with you, then you must acknowledge that there are multitude of other waysit could be “understood” that you don’t like, because anyone can change the definition. The only way to keep that from happening is through the exercise of power, because once you say YOU can redefine something (or agree with what someone else has redefined) only power will stop others from doing the same.