There are monetary benefits that derive from the State in order to lend support to the family unit, which the State considers the basic unit of the society. Gays are legally permitted to form “civil unions” – which give them the legal benefits of marriage other than tax and SS benefits. They do not find “civil union” to be enough – it has to be “marriage” in order to qualify for the monetary benefits. I think that’s what it all comes down to.

Okay, that sounds like a new one: call it (13). Now, given that these monetary benefits accrue to opposite-sex marriages, doesn’t it violate the right to equal protection to forbid those benefits to same-sex unions?

(And, just to forestall one side-track, I’d agree in an instant that “affirmative action” has the same problem.)

If the answer is that people thought that blacks were not fully [rational] human beings, then it seems reasonable – the idea would be that like children, they didn’t have the reasoning ability to form contractual obligations.

But that’s not consistent with allowing two blacks to marry. I don’t doubt that great-grandfather Jeff might have made just that argument, but as you say, it isn’t true, and it doesn’t seem to fit the situation.

It’s not like the reason for those laws wasn’t well known, even explicitly called out: it was to prevent the “mixing of the races”, miscegenation. The Loving v. Virgina page cites the trial judge:

Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. And but for the interference with His arrangement there would be no cause for such marriages. The fact that He separated the races shows that He did not intend for the races to mix.

Of course, seeing as I’m the product of just such a miscegenation, I don’t find this awfully convincing either.

There are monetary benefits that derive from the State in order to lend support to the family unit, which the State considers the basic unit of the society. Gays are legally permitted to form “civil unions” – which give them the legal benefits of marriage other than tax and SS benefits. They do not find “civil union” to be enough – it has to be “marriage” in order to qualify for the monetary benefits. I think that’s what it all comes down to.

>>do you think the state of Virginia was entitled to forbid blacks and whites from marrying?>>

Legally I don’t know enough to answer the question. Morally, I’d say no. But that’s here and now. When was the law made and why? There are a _lot_ of really stupid laws on the books, usually made to address certain particular needs of a society at a particular time – and then when the immediate problem is solved, the laws are forgotten until someone decides to use them for something arcane. If the answer is that people thought that blacks were not fully rationable human beings, then it seems reasonable – the idea would be that like children, they didn’t have the reasoning ability to form contractual obligations. Once that assumption is disproved, then it’s no longer valid.

You can form your own associations, and you are [not] legally impeded from those associations. What gays want are the benefits associated with a legal status they do not qualify for.

That’s all Mildred Jeter and Richard Loving wanted, too: the benefits associated with a legal status for which, being of different races, they didn’t qualify.

Maybe we can get at this another way: do you think the state of Virginia was entitled to forbid blacks and whites from marrying? Do you think that the Supreme Court was wrong to conclude that “equal protection under the law” was violated by that law?

If so, say so, and explain to me why. If not, then can you explain what argument you have for distinguishing Mildred Jeter and Richard Loving from, I dunno, George Takei and his long-time partner? Is it one of my 1–12 above, or do have one to add to the list?

I think the thing here is that there are really two questions tied together.

First question: does the state have the right to regulate marriage? Now, I’m reading “right” here as in “natural right”, “Rights of Man”, a “right” as Jefferson used it in the Declaration. And in that sense, no, it’s not a right — it’s merely a law, passed more or less by agreement, which varies from jurisdiction to jurisdiction, and which is subject to and can potentially be superseded by those natural rights.

Second question: given that the state does assume the authority to make such a law, is that authority being justly administered according to the Rights of Man? My conclusion is that in the case of same-sex marriage, it is not.

Most of the bits of my argument are already above, so I’ll run through it in outline:

- First (and something I think has been a mutual assumption, but I’ll state it outright now), people whose desire it is to form a family with a person of the same sex are indeed members of the human race and inhere all of the Rights of Man.

- Second, that among those natural rights is the right to be treated equally under the law; this was (in my opinion) recognized by the 14th Amendment — recognized as opposed to granted.

- Third, that the ability of the state to define a contractual or civil relationship of marriage is subordinate to that natural right.

Now, as with a lot of these things, we end up with some conflicts among rights. For example, one of the restrictions we put on the ability to form that association is that we don’t allow people below a certain age to marry. This is, at the root, based on when we judge someone is competent, and in fact many states allow marriage with parental consent before it’s permitted otherwise. Many of these decisions are in some sense arbitrary; some states allow first cousins to marry, others don’t.

Some of these restrictions were from tradition and even prejudice which was then imposed as law. In many southern states, that included the rule that people of different races could not marry. In the court cases I cited above, various courts agreed in the 40’s and 50’s that these laws were invalid, superseded by the natural rights, as recognized in the 14th Amendment, of the people involved.

Now, sometimes the state is allowed to legally restrict some person’s natural rights under the Constitution, which is our written agreement about these rights: if you commit a crime, they can put you in jail; if you commit treason, the state can kill you. The state can’t, however, punish or impair under the law, an entire group: equal protection is an individual right. For me to be, for example, forbidden to purchase alcohol because I’m an Indian violates that right. Taking the property of, and imprisoning, all people of Japanese descent because there had been an attack on America by Japan violates that right.

What are the arguments we’ve seen for the state impairing the rights of some people to form that association with someone of the same sex?

(1) Some gay people do ooky things, and that makes gays unfit to marry.

(2) Some gay people are promiscuous, and that makes gays unfit to marry.

(3) Some gay couples may not be as good parents as some straight couples, and so that makes gays unfit to marry.

(4) Some gay couples get divorced, so that makes gays unfit to marry.

All of these are dressed up with statistics, but that’s basically lipstick on the pig, a spurious attempt to make the argument look in some sense scientific: the underlying argument is that because some members of a group behave badly, that justifies punishing and impairing all members of the group.

(5) Marriage is a Sacrament, part of a Covenant with/from (I’m not sure what the right technical phrasing should be) God. Since God says marriage is between a man and a woman, that civil association ought to be forbidden to people of the same sex.

(6) Sexual activity between individuals of the same sex is sinful, and since marriage implies possibly having children (by adoption for both, through sperm donation for women), the civil association ought to be forbidden lest children be exposed to sin.

Both of these then lead to the next question: whose God wins? My God(s) may not be yours, and some people don’t believe in God(s) at all. There’s been the suggestion several times that since the majority believes such and such, the majority ought to dominate the minority. Certainly that’s sometimes the way things work, but the whole point of laying out a Bill of Rights was to establish the places where the majority could not, under the Constitution, impose their will on the minority. The very first one in the list includes the right not to be forced to submit to the majority’s religious opinion.

(7-10) some gay people do ooky things, are promiscuous, may be bad parents, may be more prone to divorce: thus allowing gay people to marry will harm their children. Thus that civil association ought to be forbidden.

Again, all of these may be true for some gay people, but we don’t allow a whole group to be punished or impaired for the behavior of individuals. What’s more, some straight people do ooky things, are promiscuous, are bad parents, and are prone to divorce; we don’t therefore impair the ability of opposite-sex couples to form that civil association. Since we’ve assumed that gay people have the same natural rights inherent to being human, the fact that one group is not impaired for the same kinds of behavior would impel us to see impairing another group for the same behavior as a violation of their natural right to be protected equally.

(11) Allowing gay people to form that civil association — or sometimes, more restrictively, allowing them to form that association and call it “marriage” — will harm the ability of opposite-sex people to form that association, or demean or impair that relationship among people of the opposite sex.

It seems that most all the arguments for that come down to variants of 1–4 or 7–10, and seem to me to fall on the same arguments.

(12) We started, way up above, with the notion that marriage is a Sacrament, and that allowing marriages that didn’t receive (invoke?) that sacrament necessarily degraded those that did. I don’t have an opinion on that per se; I’ve been a Buddhist for 40 years, and before that I went to Baptist Sunday School. We didn’t talk about sacraments, so I don’t know.

But if it’s true, didn’t my marriage, between a genial agnostic raised Methodist and a Buddhist, with no discussion of Sacraments, performed with the “attendance” of K’uan Ssu Yin the Bodhisattva of Compassion, have the same problem? It certainly wouldn’t be considered as having fulfilled the Sacrament of Marriage as I understand Catholic Dogma. That’s why it’s important to Catholics (and a lot of other Christians) to have a “church marriage”, no? For that matter, doesn’t a marriage in a Baptist Church have the same problem for Catholics, ie, it impairs the sanctity of the Sacrament? It’s something called a “marriage” that isn’t a real marriage, no?

Doesn’t this argument, just inherently, come down to an insistence that my concept of “marriage” ought to be subordinate to your religious beliefs?

So, that seems to be the list; have I left any out?

Oops. “you are _not_ legally impeded”…

You can form your own associations, and you are legally impeded from those associations. What gays want are the benefits associated with a legal status they do not qualify for.

Do you also park in Handicapped parking spaces?

Do you not comprehend what a straw man is?

On, I do, yeah. But she quoted “full authority over all externals.” It’s hardly a straw man if I believe her.

Do you not comprehend what the benefits of civilization vis a vis barbarism, is?

Better, perhaps, than most. Which is exactly why I think the desire of the human spirit to be treated as others are treated, to be able to form one’s own associations and not to be subject to legal impediments for unjust reasons, is so important. So if this is an argument at all, I see it as an argument in my favor.

It could be defensible… To be honest, I don’t know enough law. The Supreme Court’s job is to test laws against the Constitution. The Constitution specifically says “all men are created equal”. Given that, and given that blacks were accepted as “men”, it seems pretty clear. It also took a while before all women were considered as “men” in the Constitution – and equal under the law. Could you accept these principles and still defend segregation and its attendant laws? Probably not – although I’m not sure Jeremiah Wright would agree. There are no perfect societies, just as there are no perfect people.

Again – you can say you agree with my statement of the question being what right does the State have to define “marriage”, but it appears to me that you then ignore the basis of the question. _What_ right has the State, and why? Are you simply accepting that the State has the right to make any rules it chooses? Might makes right? That could, in fact, be the simple truth – the might of the majority… The fact that the State grants licenses to marry indicates that marriage is _not_ a right in and of itself, but that is the basis of the claim of gays – the _right_ to marry.