Massive, crushing defeat for Marriage Equality in New York

[Serafine666]

Here's an interesting question for you, Serafine, and a brief one so it should be easy to answer:

What about religious groups which do in fact marry homosexual couples? Would you object to legalizing the sanctification of their marriage rights on freedom of religion grounds?

I think that would fall comfortably within my "I may not support but would tolerate or even accept" caveat, Your Grace. The interaction between religious freedom (an explicit 1st Amendment guarantee) and other laws can be a complicated one. In Smith v. Oregon, the Supreme Court ruled that a law that intruded on religious freedom while clearly intending to address a totally unrelated issue had legal force. In the specific instance, it ruled that Oregon law classifying pejote (sp?) as an illegal drug was valid even though it intruded on the religious freedom of a Native American tribe that used the drug as part of a religious observance, reasoning that the law passed a rational basis test and that any intrusion on religious liberty was unintentional and unforeseen. I admit that I have no idea how a court would rule on the interaction between a law banning gay marriage and the religious liberty of a given church to legitimate the marriage of a homosexual couple. But again, it would fall into my "tolerate or accept" category.

[Serafine666]

Why exactly do you oppose changing the marraige laws to encompass gay marriage if you're NOT a stereotypical Chrisitian nutjob? Oh right sorry 'ruling social paradigm', 'justifiable to confine legal recognition to marriages that are commonly socially recognized', you're just absurdly conservative.

Guilty as charged, Stark. I make a conscious attempt to avoid being utterly absurd about my conservative viewpoints (thus why I'm trying to make my acceptance of Duchess' suggestion as clear as possible) but I occasionally stumble into silliness.

[Simon_Jester]

How do you establish that the First Amendment is fundamentally more important than each and every one of those "tidbits?" That it is any less a right, even if a bunch of random people in 1790 didn't think to label it as such?

Simply put, I establish that it's a civil right because it is indisputably a civil right. It may not have been a civil right prior to the adoption of the Bill of Rights but we're in 2009, not 1790, so the question of the five freedoms under the First Amendment being rights of US citizens living on US soil has been long settled. Moreover, either legislatures invented more than 1400 new rights or the 1400+ benefits of a state-recognized marriage include very few things that are actually rights.

"Indisputable a civil right..." Indisputable how? Who gets to decide whether a right is "disputable?" You? Me? Duchess Zeon? Bob Burns, the most average American? Does having one guy who doesn't agree with a given right make it disputable? A thousand? A million? Thirty million?

Because I can present examples of "indisputable" civil rights that a substantial chunk of Americans don't really support, or think are actively bad, or misunderstand so catastrophically that they effectively oppose them while claiming to support them. Like freedom of religion. Or protection against being compelled to testify against yourself: there are a number of "tough on crime" idiots who assume that the Fifth Amendment exists only to protect the guilty and is therefore namby-pamby liberal bullshit.

How do you know that the right to free speech and the right not to be forced to confess to crimes are indisputable and the right to marry whoever the hell you want is not, aside from the fact that you, personally, would dispute one but not the other?

Why is it, Serafine, that you regard social acceptance the standard for what should be considered the ethical law as opposed to other standards, such as harm being inflicted upon individuals?

There is a practical argument for at least trying to rally a base of support for social acceptance before establishing a right, because otherwise the backlash can wind up making things painful in a lot of ways (witness the conservative backlash that came about when the Supreme Court overturned the nearly universal state laws against abortion, and how that empowered an avalanche of nuttery in the decades afterward).

But that's tactics, not theory.

[Stark]

Why exactly do you oppose changing the marraige laws to encompass gay marriage if you're NOT a stereotypical Chrisitian nutjob? Oh right sorry 'ruling social paradigm', 'justifiable to confine legal recognition to marriages that are commonly socially recognized', you're just absurdly conservative.

Guilty as charged, Stark. I make a conscious attempt to avoid being utterly absurd about my conservative viewpoints (thus why I'm trying to make my acceptance of Duchess' suggestion as clear as possible) but I occasionally stumble into silliness.

So remind me how easy it is to be 'conservative' (ie, lazy and selfish) when you're on top and get everything you want?

[Serafine666]

So remind me how easy it is to be 'conservative' (ie, lazy and selfish) when you're on top and get everything you want?

I wouldn't know, Stark. I'm not "on top" and if I got everything I wanted, I'd be posting messages from a $10,000 computer in a penthouse suite with two whole rooms dedicated to my collection of original WW2 and early Cold War firearms. So you may have to ask someone else how easy it is when they're on top and get everything they want.

[Serafine666]

"Indisputable a civil right..." Indisputable how?
-snip-
How do you know that the right to free speech and the right not to be forced to confess to crimes are indisputable and the right to marry whoever the hell you want is not, aside from the fact that you, personally, would dispute one but not the other?

I use the standard of explicit enumeration. I regard a civil right to be indisputably a civil right if it is explicitly enumerated in the text of the Constitution. Whether someone believes it ought to be written there, whether someone actually understands it or not, whether someone hates it or otherwise, it is there and written in at least somewhat plain English (although you sometimes need a 1800s-era dictionary to know exactly what the words meant at the time of their writing). I recognize that there are rights that are not directly stated and have been established through means outlined in the Constitution but all of those, unlike the ones I regard as "indisputable", can be removed by nothing more than the Supreme Court of the right disposition getting an opportunity. I suppose the most concise way of putting it is thus: I see a right as indisputable if it is as secure as it possibly can be... which requires explicit enumeration.

[ray245]

"Indisputable a civil right..." Indisputable how?
-snip-
How do you know that the right to free speech and the right not to be forced to confess to crimes are indisputable and the right to marry whoever the hell you want is not, aside from the fact that you, personally, would dispute one but not the other?

I use the standard of explicit enumeration. I regard a civil right to be indisputably a civil right if it is explicitly enumerated in the text of the Constitution. Whether someone believes it ought to be written there, whether someone actually understands it or not, whether someone hates it or otherwise, it is there and written in at least somewhat plain English (although you sometimes need a 1800s-era dictionary to know exactly what the words meant at the time of their writing). I recognize that there are rights that are not directly stated and have been established through means outlined in the Constitution but all of those, unlike the ones I regard as "indisputable", can be removed by nothing more than the Supreme Court of the right disposition getting an opportunity. I suppose the most concise way of putting it is thus: I see a right as indisputable if it is as secure as it possibly can be... which requires explicit enumeration.

Doesn't that mean that slavery should be legal as well? What about inter-racial marriage, and consider inter-racial marriage as something isn't a civil right?

[Serafine666]

Doesn't that mean that slavery should be legal as well?

Constitution Amendment #13; fits into the "specific enumeration" standard I'm using.

What about inter-racial marriage, and consider inter-racial marriage as something isn't a civil right?

I... don't suppose you could rephrase that question? I'm pretty sure you're talking about something related to the Loving v. Virginia case but I'm not sure enough to answer.

[ray245]

Constitution Amendment #13; fits into the "specific enumeration" standard I'm using.

So you are saying that there needs to be an amendment before the SCOTUS can rule that homosexuals have a right to marry?

I... don't suppose you could rephrase that question? I'm pretty sure you're talking about something related to the Loving v. Virginia case but I'm not sure enough to answer.

Sorry about the phrasing.

The question should be

Is inter-racial marriage still a civil right, given that it is not explicitly enumerated in the text of the Constitution in the past.

[Alyrium Denryle]

I... don't suppose you could rephrase that question? I'm pretty sure you're talking about something related to the Loving v. Virginia case but I'm not sure enough to answer.

Yes. Loving V Virginia. Where the SCOTUS ruled that the right to marry was itself a fundamental right. Did they apply it to gay people? No. But they flat out say that it is one. Moreover we do have the 9th amendment...

[Pint0 Xtreme]

Why is it, Serafine, that you regard social acceptance the standard for what should be considered the ethical law as opposed to other standards, such as harm being inflicted upon individuals?

There is a practical argument for at least trying to rally a base of support for social acceptance before establishing a right, because otherwise the backlash can wind up making things painful in a lot of ways (witness the conservative backlash that came about when the Supreme Court overturned the nearly universal state laws against abortion, and how that empowered an avalanche of nuttery in the decades afterward).

But that's tactics, not theory.

There's no evidence of that behavior for the issue of marriage equality. In fact, it has shown that public policy favor marriage equality ends up moving public opinion much more favorably. Desegregation and miscegenation rulings were originally quite unfavorable as well. Maintaining marriage equality laws over the long term has never been a problem as far as tactics goes. It's gaining it in the first place that is.

And besides, by the way I read Serafine's posts, it seems rather obvious he places popular sentiment on a higher ethical pedestal than other considerations. It's quite bothersome when someone says a particular law isn't hurtful to anyone - and in fact, helpful to many - but decides it's wrong to enact because it's not popular enough. It's even more bothersome in this case since the proposed law would not only alleviate the oppression of a minority group but allow them the denied civil rights that the majority simply take for granted.

[Serafine666]

So you are saying that there needs to be an amendment before the SCOTUS can rule that homosexuals have a right to marry?

In that particular instance, I was saying that since abolishing slavery was an amendment, it fits into my standard for indisputable rights.

Is inter-racial marriage still a civil right, given that it is not explicitly enumerated in the text of the Constitution in the past.

It could be. I'm just laying out the civil rights I regard as beyond dispute; obviously, there are quite a few others that might be disputed and could indeed be abolished by 5 justices of the SCOTUS.

[Simon_Jester]

I use the standard of explicit enumeration. I regard a civil right to be indisputably a civil right if it is explicitly enumerated in the text of the Constitution.

That's circular reasoning: your rights are whatever the Constitution says they are, and no other rights are desirable or valuable enough to get excited over. How, then, would we go about amending the Constitution, as even the guys who wrote the damn thing realized would be necessary? How do we come back to the document, say, 85 years after the fact and say "Gee, we really need an amendment banning slavery?"

Slavery was not previously a violation of any right listed in the Constitution. Therefore, as I understand your argument, the right not to be a slave was not an "indisputable civil right" in 1865, and therefore not something that people should get all worked up over. To make matters worse, today it is undisputed that people have a right not to be a slave... but only because someone in 1865 decided to stick a "disputable" right in the Constitution.

This is what I would call "kneejerk conservatism:" if a thing happened long enough in the past that the arguments over it have settled it is good, and if not it is bad. That's not a coherent model for building a society, or a constitution.

I suppose the most concise way of putting it is thus: I see a right as indisputable if it is as secure as it possibly can be... which requires explicit enumeration.

But that isn't a prescriptive statement; it's a tautology. Rights are indisputable if you can't realistically imagine them being taken away, and the only rights that you should get worried about losing are the indisputable ones.

That's a recipe for complacency with respect to abuses of government power.
_______

There's no evidence of that behavior for the issue of marriage equality. In fact, it has shown that public policy favor marriage equality ends up moving public opinion much more favorably. Desegregation and miscegenation rulings were originally quite unfavorable as well. Maintaining marriage equality laws over the long term has never been a problem as far as tactics goes. It's gaining it in the first place that is.

Oh. Good. I was worried about that, because I think extending marriage equality is a good idea (if not an active good, a non-non-good in the "why the hell not do it?" sense)... but I was afraid of the consequences if trying to establish gay marriage touched off a reactionary storm the way Roe v. Wade did.

Could you provide me with some survey evidence of the stuff you're talking about? It would make for reassuring reading.

[Pint0 Xtreme]

There's no evidence of that behavior for the issue of marriage equality. In fact, it has shown that public policy favor marriage equality ends up moving public opinion much more favorably. Desegregation and miscegenation rulings were originally quite unfavorable as well. Maintaining marriage equality laws over the long term has never been a problem as far as tactics goes. It's gaining it in the first place that is.

Oh. Good. I was worried about that, because I think extending marriage equality is a good idea (if not an active good, a non-non-good in the "why the hell not do it?" sense)... but I was afraid of the consequences if trying to establish gay marriage touched off a reactionary storm the way Roe v. Wade did.

Could you provide me with some survey evidence of the stuff you're talking about? It would make for reassuring reading.

For a start, a somewhat recent poll in Iowa shows that Iowans are generally evenly split on the issue. Chances are a good majority of Iowans before the court ruling were not in favor of marriage equality laws. But I think the most telling part of that poll is the fact that 92% of Iowans say that it hasn't impacted their lives (Gee, I guess the so-called "consequences" of gay marriage that the bigots consistently fear monger about were bullshit after all!) As a result, it's only natural that opposition to marriage equality end up losing steam and the push to reverse those laws dissipate. Also, it should be noted that five years after Massachusetts legalized marriage equality through the court order, things have been pretty quiet since then. While "pro-life" advocates can continue to wave pictures of aborted fetuses to arouse opposition to abortion, what exactly can marriage equality opponents do to arouse opposition? The vast majority of people aren't affected by legal same-sex marriages and if they are, they are generally affected positively as the visibility of recognized same-sex relationships help breakdown homophobia and stereotypes of the LGBT community.

[Darth Wong]

So you are saying that there needs to be an amendment before the SCOTUS can rule that homosexuals have a right to marry?

In that particular instance, I was saying that since abolishing slavery was an amendment, it fits into my standard for indisputable rights.

You're an idiot. You're saying that there are no rights except for those which are already in the Constitution, and that freedom from slavery is a right because they added it to the Constitution. Therefore, by your argument, anything we can successfully add to the US Constitution becomes a morally self-justifying human right, but one day earlier, it was a worthless non-right.

[Serafine666]

That's circular reasoning: your rights are whatever the Constitution says they are, and no other rights are desirable or valuable enough to get excited over. How, then, would we go about amending the Constitution, as even the guys who wrote the damn thing realized would be necessary? How do we come back to the document, say, 85 years after the fact and say "Gee, we really need an amendment banning slavery?"

I'll point out that my ideal world isn't exactly practical, Simon. But while I may only view indisputable civil rights as something to fight for, there are numerous disputable ones and the entire slew of them are probably more likely than other ideas to be codified in the constitution. After all, banning slavery was an idea that became a heated argument that became an amendment; same thing happened with votes for women, the income tax, votes for 18+, prohibition, and anti-prohibition. I myself only may wish to fight for the indisputable ones but the disputable ones are hardly walled off forever to those who believe strongly enough in them. At some point, a constitutional ban on gay marriage was floated on the federal level; it'd be no surprise at all if the opposite rose to the same level.

Slavery was not previously a violation of any right listed in the Constitution. Therefore, as I understand your argument, the right not to be a slave was not an "indisputable civil right" in 1865, and therefore not something that people should get all worked up over. To make matters worse, today it is undisputed that people have a right not to be a slave... but only because someone in 1865 decided to stick a "disputable" right in the Constitution.

Exactly! By a democratic process (a significant majority of both states and houses of Congress), a civil right was added and effectively put beyond the reach of anything but another amendment.

This is what I would call "kneejerk conservatism:" if a thing happened long enough in the past that the arguments over it have settled it is good, and if not it is bad. That's not a coherent model for building a society, or a constitution.

I don't know about "knee-jerk", Simon... it's not as if my unconscious instinctive reaction to everything called a "civil right" is to call it meritless in absence of an amendment. I just end up being a really hard sell on "our civil rights are being violated" when I see people walking around free to do everything that I, a heterosexual, may do save call a legal loving devoted relationship "marriage."

But that isn't a prescriptive statement; it's a tautology. Rights are indisputable if you can't realistically imagine them being taken away, and the only rights that you should get worried about losing are the indisputable ones.

That's a recipe for complacency with respect to abuses of government power.

Only concerning oneself with the rights that are spelled out with the intent of constraining the government? I'm not seeing how that makes the government more able to abuse its power but you probably have a sensible point.

[Serafine666]

So you are saying that there needs to be an amendment before the SCOTUS can rule that homosexuals have a right to marry?

In that particular instance, I was saying that since abolishing slavery was an amendment, it fits into my standard for indisputable rights.

You're an idiot. You're saying that there are no rights except for those which are already in the Constitution, and that freedom from slavery is a right because they added it to the Constitution. Therefore, by your argument, anything we can successfully add to the US Constitution becomes a morally self-justifying human right, but one day earlier, it was a worthless non-right.

I'm pretty sure those two quotations were not in sequence to one another (my response was to a question about the 13th amendment barring slavery) but more accurately, before being added to the Constitution (thus becoming what I call an "indisputable right") it was a disputable one. That you can dispute its status as a civil right isn't the same thing as saying that it definitively is not a right. But I may well be an idiot... I'm probably not in a position to render judgement on that.

[Darth Wong]

So other words, your argument is that human rights are defined by the American political and legal process. In your world, human rights actually become indisputable when the American government says that they are.

[Serafine666]

So other words, your argument is that human rights are defined by the American political and legal process. In your world, human rights actually become indisputable when the American government says that they are.

I don't think that the American process defines human rights; that would be absurd since the US obviously doesn't encompass the entirety of humanity. America defines the civil rights that are valid within its borders, however, regardless of whether all human rights are included.

[Simon_Jester]

So other words, your argument is that human rights are defined by the American political and legal process. In your world, human rights actually become indisputable when the American government says that they are.

I don't think that the American process defines human rights; that would be absurd since the US obviously doesn't encompass the entirety of humanity. America defines the civil rights that are valid within its borders, however, regardless of whether all human rights are included.

In this case, wherever US civil rights do not match human rights, the US is committing a human rights violation. Which is probably a sign that we should be doing something differently.

You're an idiot. You're saying that there are no rights except for those which are already in the Constitution, and that freedom from slavery is a right because they added it to the Constitution. Therefore, by your argument, anything we can successfully add to the US Constitution becomes a morally self-justifying human right, but one day earlier, it was a worthless non-right.

This is more or less what I was getting at, only shorter and punchier.

I'll point out that my ideal world isn't exactly practical, Simon. But while I may only view indisputable civil rights as something to fight for, there are numerous disputable ones and the entire slew of them are probably more likely than other ideas to be codified in the constitution. After all, banning slavery was an idea that became a heated argument that became an amendment; same thing happened with votes for women, the income tax, votes for 18+, prohibition, and anti-prohibition. I myself only may wish to fight for the indisputable ones but the disputable ones are hardly walled off forever to those who believe strongly enough in them. At some point, a constitutional ban on gay marriage was floated on the federal level; it'd be no surprise at all if the opposite rose to the same level.

But why would you, personally, ever support any constitutional amendment, given your definition of indisputable rights? And if you think other people should agree with you (as most of us do), why do you think others ever should?

The logical conclusion of applying your standard of "indisputable" rights is that no one ever promotes anything as a right that wasn't an invincibly enshrined right yesterday. Again, that's not a coherent policy; that's just kneejerk dislike of anything you're old enough to remember an argument over.

I just end up being a really hard sell on "our civil rights are being violated" when I see people walking around free to do everything that I, a heterosexual, may do save call a legal loving devoted relationship "marriage."

If the gay marriage issue were only that simple in reality...

Only concerning oneself with the rights that are spelled out with the intent of constraining the government? I'm not seeing how that makes the government more able to abuse its power but you probably have a sensible point.

It's like this:

Let us imagine the United States of Serafinestan, a country very similar to this one except for the minor detail that a large majority of the population adheres to the standard of "indisputable rights" that you do. Let us imagine that the government is trying to fight crime by placing wiretaps and bugs on suspected criminals without a warrant. Someone appeals a conviction gained using evidence from one of the bugs, claiming that this violates their right to be free of unwarranted search and seizure as per the Fourth Amendment.

The defense in the appeals case argues that wiretaps and bugs are a form of search, in which the government intrudes its (automated electronic) agents into your 'space', much as if they had sent men to go through your personal papers.

The prosecution argues that wiretaps are not a form of search, that you have no right to the expectation of privacy over the phone, and no right to assume that no one can hear you just because you don't see anyone in a position to do so. So long as the government does not physically remove or examine any of your property, they cannot be said to have "searched" your property... even if they walked up to your house and slapped a microphone on the outside of your office window.
________

Now, the Fourth Amendment says nothing about wiretaps specifically, because it was written before the invention telecommunications. There is nothing in the Constitution that says that your telephone conversations (or any conversations) cannot be listened to by Federal authorities, warrant or no warrant. If the federal government could find a man with superhuman ears that heard everything in the world, and used that man's power to listen to everything in the world that anyone ever said, that would be OK under the original Constitution. If they find machines to do the job of that guy with super-hearing, likewise.

In the United States of Serafinestan, the Supreme Court would surely rule in favor of the Constitution, because the above argument would be of supreme weight. There is no "indisputable" civil right not to be listened to, because the "right" not to be listened to is nowhere in the original Bill of Rights. Thus, you get no protection from wiretaps or bugs due to the Fourth Amendment's prohibition on unwarranted searches, because "search" does not mean "listen to" by any reasonable definition of the word.
________

If you cannot imagine any number of ways for the government to abuse the power granted to it by that hypothetical Supreme Court decision, you have an extremely poor imagination. For instance, the government could use it to spy on political enemies of the ruling faction,* obtaining privileged information that could be used to weaken those enemies and secure the faction's continued rule. Using today's technology, it could set up massive data mining algorithms meant to process everyone's communications and single out anyone who said suspicious things for harassment. Or anyone who listened to suspicious things. There are no doubt other ways to abuse the power of warrantless wiretapping and bugging that I haven't thought of off the top of my head, too.

*This actually happened; it was called COINTELPRO.

[Serafine666]

In this case, wherever US civil rights do not match human rights, the US is committing a human rights violation. Which is probably a sign that we should be doing something differently.

Quite true, Simon. I haven't yet heard marriage elevated to the status of "human right" so for the moment, the United States isn't guilty of human rights violations.

But why would you, personally, ever support any constitutional amendment, given your definition of indisputable rights? And if you think other people should agree with you (as most of us do), why do you think others ever should?

I would if I regarded the right being established or the wrong being addressed to be a matter that, if left alone, would cause suffering or a division of primary and secondary citizens. This may have been the case for gay marriage in the past but when there is presently a legal construct to provide the precise same rights and privileges of marriage, the "suffering" argument loses quite a bit of water. The "primary and secondary citizens" side of things is sort of up in the air; the larger society may regard a civil union/domestic partnership as inferior but this does not necessarily mean that it is. Moreover, I have yet to hear an allegation that by being deprived of the right to title the relationship "marriage" (while being given all the legal benefits thereof), homosexuals are being deprived of anything else.

If the gay marriage issue were only that simple in reality...

Few things are although it'd be nice if simplicity was more common.

It's like this:
-snipped detailed example-
*This actually happened; it was called COINTELPRO.

Well, when you put it like THAT it makes perfect sense although in the real world, the Supreme Court has ruled that wiretaps and thermal imaging and other things fall under the protection from "search and seizure" and so are covered by an existing right; making a "right to privacy" to rule that thermal imaging is unconstitutional is unnecessary. I understand and agree with your point.

Just out of curiosity, how was this COINTELPRO special? Bugging political enemies is a practice as old as the United States if not older (although in the time of Madison and Jefferson, they were worried about their mail being intercepted and read by political foes) so what about COINTELPRO makes it the best example of the bad practice?