Shrub working on defining marriage as purely heterosexual

[The Duchess of Zeon]

People have lost sight of what marriage is. Despite the ignorant or downright dishonest bleatings of the fundies and other assorted homophobes, marriage is a legal concept in secular society. It cuts across lines of race, culture, and religion, and has done so since the founding of the nation. As a government-recognized legal principle, it should not discriminate. It's as simple as that.

Christians add extra meaning to the definition of marriage. That's fine for them, but the fact remains that marriage itself is a secular and legal construct, upon which the Christian church has no more exclusive claim than my auto mechanic.

Having said that, the homophobes' claim that it traditionally refers to a man and woman is correct. However, if "tradition" is the only argument they can mount, then they have no argument at all. The current definition is discriminatory, hence it is a violation of human rights.

The previous foundation of society, though, Mike, was inherently religious--everything in agrarian history, which was pretty much the history of civilization before (when was the modern steam engine instead of Hero's toy invented? 1698? Well, the Industrial Revolution didn't get going until the late 18th century)--was basically the history of religion being used as the defining "glue" of society. This is something which is dying hard, simply because it was so fundamental before!

I'm utterly not expected by this and don't think it a big deal. It's simply part of the process. Religion in society has been dying since the 18th century, since agrarian society started to transform into industrial society. That process is not done yet--and certainly great strides (or, possibly, forced ones) lead to reactions by those elements which cling to dying concepts. Society is being reordered as the reality of industrialization takes hold, and the end result on all aspects: On religion, on marriage (an institution which should certainly be, in legal terms, like a mutual and equal contract--and hardly just between two people, if more would desire to enter into it--but we'll see where it goes), and other aspects of interaction, none of these things are really known yet.

At least we have the bonus of being through the worst of it, I think; look at countries like those in Africa or the Mid-East which are still basically agrarian. They're going to have to transition at some time or another, and the effects on society truly are tremendous. That's what we're seeing the beginning of now there, and look what it's doing. Here it killed tens of millions of people with the agrarian reactionism of communism and the religious mishmash of Hitler. What's left? Things like this in industrial countries? A mere whimper, the last gasp of dying ways, swiftly being eradicated.

[Johonebesus]

A few comments:

Certain liberal Protestant denominations allow gays to marry, but unless they live in Vermont or Hawaii, those marriages aren't legally recognized.

Funny, I was under the impression we made an amendment to the state constitution outlawing gay marriage back in 1998.

I could very well be wrong about that. I confess to not having intimate knowledge of Hawaiian or Vermonter state politics.

I already addressed that.

tradition where? tradition isnt just a christian thing. native americans have
had same sex marriages for a very long time. ancient greeks were quite
keen on men hooking up with men (i dont know how their marriage
ceremonies went tho so i cant say). tradition is a relative term, as well as a
stupid term. we live by our own makings here and now not in the past. fuck
tradition.

The Greeks did not have homosexual marriage. While it was perfectly acceptable for a man to take pleasure with another male, and some poleis had established formal relationships between older men and adolescent boys, every man was expected to establish a household (I can't remember the Greek word at the moment, it is equivalent to the Latin familia). A household was made of a man, his wife, his children, other dependant relatives such as elderly parents, sisters, orphaned nieces or nephews, etc., and his slaves. The idea of two men setting up a household together would have been preposterous. Homosexual acts were either confined to particular formal relationships, such as between master and slave, an erastes and his eromenos, the Theban Band, or casual play between young friends. Of course, each city was essentially a nation unto itself with unique customs and mores, and the Classical period spans several centuries, allowing plenty of time for cultural change, but gay marriage did not exist.

I am only aware of one culture that allowed a form of homosexual marriage. Amongst Taiwanese farmers, women were seen essentially as possessions, yet descent was traced through the maternal line. If a woman could not get a husband but had some property or wealth in her own right, she might be able to persuade a family to let her marry one of their daughters. The woman would take the legal position of husband. Some man would perform the spousal duties to produce children, but the children would be considered the offspring of the two females, allowing the she-husband to have descendants to carry on her lineage and honor her spirit after she died. This practice of course was not really homosexual, for the women would not be expected to be lovers, and it was a last resort for a woman who couldn't find a man.

This of course highlights the difference between marriage and unions. In almost all cultures, marriages are not seen primarily as unions between two individuals for their own self-fulfillment, but as a means for producing and maintaining families. As much as I hate to admit it, when right wingers go on about marriage being for the purpose of making and raising children, they are on to something. If other cultures have condoned or even encouraged homosexual relationships, such relationships are always seen as being fundamentally different from normal, heterosexual marriage. We should be very clear, to legalize gay marriage is to fundamentally redefine marriage in a way that has no historical or traditional precedent. I am not saying that is a bad thing, only that we should be clear about what we are proposing. Koji, you are right that we should throw out appeals to tradition, but tradition does generally support the conservative argument.


And Mike, I try to avoid getting into debates about the role of spirituality in government, but you have to realize that government cannot live in a vacuum sealed away from society. Government must reflect the values of the culture it finds itself in. To demand that the government be so absolutely and totally secular that it not only does not reflect but even contradicts social norms and customs is, frankly, absurd. It might be ideal if the government could define marriage in a totally secular way that only emphasizes the spouses, not their potential children or their place in society, and I for one would be thrilled if gay marriage were legalized (not that I'll ever get to benefit from it), but what we really need to do is change society. Trying to use government to force change is generally not a good idea. It doesn't work for the left or the right. To do so will only cause backlash, as the recent polls indicate (thought I put little stock in media polls). When society has progressed to the point that the majority of people are at the very least ambivalent about an issue, then the government can be used to speed the process along a bit by overruling the minority of protestors. But trying to force a change that the majority are, at best, uncomfortable with will only cause anger and unrest and, in a democracy, lead to the opposition gaining power.

[kojikun]

oh, duchess, i didnt think the greeks actually had gay marriages, but
homosexuality for them was just part of life. they were entirely accustomed
to, and even expected homosexual relationships. not necessarilly
exclusively homosexual relationships, as i suspect they believed raising a
family to be ones duty, but the concept would have been more of an issue
of responsibility not of oddity. i imagine a good number of greek men were
entirely gay and noone cared, or that there were men with families because
it was their duty, not because they wanted a wife.

[The Duchess of Zeon]

The idea of two men setting up a household together would have been preposterous. Homosexual acts were either confined to particular formal relationships, such as between master and slave, an erastes and his eromenos, the Theban Band, or casual play between young friends.

One could call the Spartan Mess, though, as long-term homosexual relationships between adults--just not as the sole aspect of the sexual life of the Spartan adults, who of course had wives, but perhaps it could be indeed called the primary one. Certainly the Theban Band, I think, indicates that in Thebes such were accepted--we have indications of other relationships like that outside of the Band itself, if not very many (but of course our entire body of literature from Thebes is comparatively small), suggesting they were tolerated. Probably among a certain class that was wealthy enough to afford such a comparatively luxury in an agrarian society as not reproducing would be.

There are other indications of such relationships: In the Anabasis, Xenophon mentions a relationship between a two men, unusual because the younger was in the dominant position. I believe it attracted some ridicule for that, but more of the "light-hearted" sort if one will, and they served among the Ten Thousand and suffered no particular social ostracization.

I think one of the main things to consider is that homosexual relationships as a formal bond did not receive acceptance in these cultures because they could not produce children, and children, as many as possible, were the firmament of agrarian society. Industrial society, however, renders large numbers of humans unnecessary for labour, and for food production--making the "everyone have as many babies as possible" maxim of older civilization totally irrelevant, and the formalization of homosexual relationships a perfectly logical step.

[Howedar]

Having children is as important as ever; only the numbers required have changed.

[The Duchess of Zeon]

Having children is as important as ever; only the numbers required have changed.

Yes, but what that means in practical terms is that some people can have none at all, while those people who are so inclined will probably have more than the average. I mean, these days, three children is a lot--at one time, twelve would have been a large family. *shudders*

[Edi]

No. If two clauses of the Constitution are in direct conflict, neither one automatically overrules the other (if both grant freedoms), but instead the courts must decide which one gets precedence in any given case, because you're dealing with two equally powerful but opposed statutes, and the determination is impossible to make based only on the written law. They'll have to use first principles, and if such an amendment is ever passed, you can expect any such legal battles in the courts to get extremely brutal and ugly, and it'd also be guaranteed Supreme Court material.

This is not exactly true. The way our system works, an amendment can be specifically written to override another section of the constitution, either eliminating that section, or for the specific purpose, creating an exception, if that exception is specifically enunciated in the amendment.

Then there's something rotten in it. Freedom of religion is one of the fundamentals of your constitution, and there is an express prohibition of crafting laws respecting religion (any religion). The Constitution is a law (albeit on a higher tier in the hierarchy of laws), so the kind of amendment we're talking about here would itself be unconstitutional. You'd need to reword the First Amendment to remove the prohibition first before the amendment that restricted marriage to heterosexual only could legally fly (because it is expressly designed to respect religion), and somehow I don't see 1st Amendment being tampered with anytime soon...

Also, how are head-on collisions of equal statutes at the constitutional level handled if not by going to first principles? In order to get a normative ruling in such a case, that's the only way to arrive at a conclusion of any sort unless the people who make that decision just pull it out of their ass.

Edi

[kojikun]

erm. fuck sorry, i addressed johanubojiwolly as duchess. it must be the paragraphs upon paragraphs of text immediately following duchesses own paragraphs upon paragraphs.

duchess for real this time: but in an industrial society larger families = more workers for factories, and factory owners like that. i think the real reason homosexual marriages werent necessarilly seen as normal back then was the intent behind a marriage (that being to provide safe future for the children). if marriage was strictly defined as a union to keep offspring safe from all manner of things that come from too few parents, then that limits the people able to participate in a marriage to a male and a female (or multiples thereof), atleast until us queers start adopting or using genetic engineering to produce offspring from both partners DNA. but marriage has never been solely defined as the above, its usually more then just that, and as such we should indeed define, if we must, marriage as the legal union between two (or possibly more) consenting adults as well as the religious union if religion comes into play.

[Johonebesus]

I think one of the main things to consider is that homosexual relationships as a formal bond did not receive acceptance in these cultures because they could not produce children, and children, as many as possible, were the firmament of agrarian society. Industrial society, however, renders large numbers of humans unnecessary for labour, and for food production--making the "everyone have as many babies as possible" maxim of older civilization totally irrelevant, and the formalization of homosexual relationships a perfectly logical step.

While that has some truth, it is a bit of an oversimplification. The Greeks were not simply agrarian, they were also commercial. For many merchants and artisans living in the cities, too many children could be a liability. Extra children of both sexes could end up sold as slaves or exposed. And for the aristocrats, too many sons could be disastrous, leading to a fragmentation of the estate. The imperative to produce heirs was not limited to farmers or bound to economic need. It was a deeply felt commitment to the institution of the family or clan. Each member of the family had an obligation to see to the continuation of the clan, not just out of immediate economic need, but out of a cultural elevation of the family as a thing greater than any individual. Be careful not to fall into the trap of analyzing everything in terms of economics. Humans are very complex with other powerful motivations besides material interest. Does this paragraph even make sense? Damn I want to sleep.

As to the issue at hand, while the Greeks did not see homosexual acts as sinful and had no concept of sexual orientation, the preferred relationship was generally the conventional marriage. Playing around was OK, but gay relationships that too much resembled marriages were noted because they were rare. I question whether the derision directed at the bottoms was only "light-hearted". I would need to look at the sources. Generally, for a mature man to take the position of woman was shameful. Of course, as I said, we are dealing with many nations over many centuries, and we are also dealing mainly with aristocrats. They were the ones who wrote about their lives, and it is hard to be sure how representative their views are of general Greek society. Aristocrats in many cultures often like to flaunt their status by being deliberately immoral and libertine to show that they are not bound by the values of the lower classes. The Romans particularly viewed the Greeks as immoral and libertine. Now that is an interesting question for research, whether other peoples living under Hellenistic rule were unhappy with "loose" Greek morals. I know the Jews were. I don't know about the Persians. I can't remember much about the traditionalist revival under the Sassanids.

[kojikun]

Edi: Lets hope the House Subcommittee on the Constitution realize that defining marriage is the establishment of one religion over all others. Hopefully they get rid of the proposal before it even reaches a vote.

BTW, to keep track of the amendment heres the amendments page:

http://thomas.loc.gov/cgi-bin/bdquery/z ... .res.00056:

[Johonebesus]

Then there's something rotten in it. Freedom of religion is one of the fundamentals of your constitution, and there is an express prohibition of crafting laws respecting religion (any religion). The Constitution is a law (albeit on a higher tier in the hierarchy of laws), so the kind of amendment we're talking about here would itself be unconstitutional. You'd need to reword the First Amendment to remove the prohibition first before the amendment that restricted marriage to heterosexual only could legally fly (because it is expressly designed to respect religion), and somehow I don't see 1st Amendment being tampered with anytime soon...

Also, how are head-on collisions of equal statutes at the constitutional level handled if not by going to first principles? In order to get a normative ruling in such a case, that's the only way to arrive at a conclusion of any sort unless the people who make that decision just pull it out of their ass.

Edi

An amendment cannot be unconstitutional. It would precisely be rewording, or superseding, the first amendment. That's the point. The Constitution cannot be contradictory, because any amendment that contradicts an earlier part of the Constitution changes that part. That's what the word means, such an act amends, or changes, the original. It is perfectly possible to change any part of the Constitution in any way. That is how Hawaii overruled its Supreme Court, by changing their constitution. That's why it was made so difficult to make such a change, requiring super majorities in both houses and then separate ratification by ¾ of the states, to prevent careless changes being made to our fundamental law.

When other acts of equal status are contradictory, generally the newer act is considered to supersede the older act. If that is not satisfactory, then they are compared to the appropriate constitution.

[Johonebesus]

johanubojiwolly?

But I probably shouldn't ramble on so. Especially when my brain is only half working.

[Edi]

An amendment cannot be unconstitutional. It would precisely be rewording, or superseding, the first amendment. That's the point. The Constitution cannot be contradictory, because any amendment that contradicts an earlier part of the Constitution changes that part. That's what the word means, such an act amends, or changes, the original. It is perfectly possible to change any part of the Constitution in any way. That is how Hawaii overruled its Supreme Court, by changing their constitution. That's why it was made so difficult to make such a change, requiring super majorities in both houses and then separate ratification by ¾ of the states, to prevent careless changes being made to our fundamental law.

When other acts of equal status are contradictory, generally the newer act is considered to supersede the older act. If that is not satisfactory, then they are compared to the appropriate constitution.

That's a fucked up system if I ever heard of one. The amendments in the constitution that I've seen have so far only addressed issues that were not already covered, or cleared ambiguities or added rights. But if anything newer automatically supersedes older statutes, then that is simply fucked up beyond all reason.

Maybe we have a different approach to it, but if there is contradictory stuff in our constitution, first principles determine how conflicts are solved (such as prohibition of discrimination vs freedom of association, which are both prime level edicts in our constitution and have come into conflict). If the constitution here were to be changed by adding new things, and a conflict with some of the older stuff ensued, the older stuff is not by any means obsoleted by default. And it works one hell of a lot better than yours seems to, because it isn't open to abuse like that. IMNSHO.

Edi

[The Duchess of Zeon]

Then there's something rotten in it. Freedom of religion is one of the fundamentals of your constitution, and there is an express prohibition of crafting laws respecting religion (any religion). The Constitution is a law (albeit on a higher tier in the hierarchy of laws), so the kind of amendment we're talking about here would itself be unconstitutional. You'd need to reword the First Amendment to remove the prohibition first before the amendment that restricted marriage to heterosexual only could legally fly (because it is expressly designed to respect religion), and somehow I don't see 1st Amendment being tampered with anytime soon...

Article V (of the U.S. Constitution.)

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

Considering that the year eight thousand one hundred and eight is long gone, any change to the constitution can be enacted, except one which deprives a state of its equal suffrage in the Senate, which is completely and utterly permanent unless all states agree to it (instead of just two-thirds). And notice how in the exception in regard to the first and fourth clauses of the ninth section of the first article it refers to "affect"--the implication there is that an amendment can, in fact, have an affect on the constitution without re-writing it (though of course amendments have struck out actual sections of the constitution), or at least I suspect that could be argued.

I believe that, for instance, an amendment could be passed defining another, or defining an exception to another, and that this would in fact be perfectly constitutionally legal. For instance, Amendment XIX, which gave women the right to vote, simply re-defined suffrage; here is the language:

Amendment XIX

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex.


Congress shall have power to enforce this article by appropriate legislation.

Notice how it also forbids any state for denying women the right to vote. So this not only affects suffrage, but defines this aspect of suffrage in regard to the Tenth Amendment.

Also, how are head-on collisions of equal statutes at the constitutional level handled if not by going to first principles? In order to get a normative ruling in such a case, that's the only way to arrive at a conclusion of any sort unless the people who make that decision just pull it out of their ass.

Edi

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--(Amendment XI

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.)--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.


In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

"In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

And, in particular: arising under this Constitution,

In reality it was never intended for the Supreme Court to have the power it does in interpeting constitutional meaning--it got it through an interesting case in the late 18th century, the case of: Marbury Vs. Madison.

Marbury Vs. Madison

This is essentially what the Supreme Court does now when it strikes down laws--it judges them against the constitution. But even that power is one that it, one might say, "discovered"--though, arguably, existed legally, and has never been challenged or revoked, since as the highest legal court of the land it has to interpet those situations.

The problem is that it is intended to interpet them under the Constitution. Or, quite simply, the situation you postulate--two sections of the Constitution contradicting each other--is one in which the Supreme Court has absolutely no authority under the constitution itself; the Constitution establishes the Supreme Court only under the Constitution. It can interpet how the Constitution interrelates with Law, but not the Constitution interrelating with itself. It can't, because the Constitution is the end point of the court. There is nothing beyond the Constitution. That's it--there is no higher law established, and a Supreme Court attempt to strike down a portion of the Constitution would probably be one of several things I can think of in modern America which might cause civil unrest.

The solution, of course, is what I already outlined above. Such a situation would never exist, because a constitutional amendment is a very, very difficult thing to pass. One of them--the twenty-seventh (in order of ratification)--was first put forward in 1789, and not ratified until 1992. That is how difficult it is to amendment our constitution. On the other hand, those amendments, though exceptionally difficult to put through, can indeed change or modify anything--except for, again, the equal suffrage of the states.

So, yes, an amendment could be proposed which would create an exception to freedom of religion by establishing marriage as a christian institution or somesuch, if it were properly worded--and the Supreme Court could do nothing about it, or at least if it tried (if the wording were not precise enough, that a challenge was allowed), we would have a very, very serious situation on our hands. But would it pass? Never. The standard:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof,

Is that either two-thirds of both houses of Congress, or a constitutional convention called by two-thirds of the states, must call for the amendment. Then it must be ratified by the legislatures, or by conventions, in three-fourths of the states. Thirty-eight states would have to approve such an amendment, and I simply don't see that ever happening.

[Darth Wong]

To reiterate an earlier point: one must concede that traditionally, marriage is the start of a family. However, what the fundies do not realize is that their shrill "adopt, don't abort" slogan leads directly to the necessity for non-reproductive families. Therefore, gay marriage is as qualified as straight marriage for producing families.

[RedImperator]

Clinton never pulled this crap.

I remember Clinton very clearly stating that marriage was between a man and woman only.
What I don't remember is when, or in what context, exactly....

Clinton signed the Defense of Marriage Act. His hands aren't clean.

[The Duchess of Zeon]

To reiterate an earlier point: one must concede that traditionally, marriage is the start of a family. However, what the fundies do not realize is that their shrill "adopt, don't abort" slogan leads directly to the necessity for non-reproductive families. Therefore, gay marriage is as qualified as straight marriage for producing families.

Here's something interesting I found:

“Biological females wearing men’s garb and often men’s weaponry, performing men’s jobs and enjoying, at least to some extent, public recognition as men have been reported from time to time in the western Balkans since the first half of the 1800’s. The custom was until quite recently found in the Dinaric range of mountains stretching from Bosnia-Herzegovina to central Albania.”

“In both the domestic circle and the village I found no trace of skepticism regarding this person’s male sex, but older men from surrounding villages told me they had once heard the person referred to as ‘hadum’ (‘eunuch’) and as ‘ni zensko ni musko’ (‘neither female nor male’). …Sometimes we also hear a ‘social man’ declare self-assuredly, ‘I am a maiden with a man’s heart in my chest.’ The combination of both genders is also apparent in a term of reference such as ‘momak djevojka’ (‘boy-girl’) and in nicknames like ‘muska Nevena’ (‘male Nevena,’ Nevena being a female name).”

“Unlike ordinary females, who were unarmed, the female who became a social male could be completely armed and actively take part in feuds, raids and the like. Yet intentionally killing or wounding such a person while in full awareness of the fact that he was a female by nature was considered shameful and unworthy for a genuine hero. …This allowed them [the third-gender women] to kill males without having to fear being killed in retaliation. This gives some social advantage to the idea of a third-gender role.”

“Sexual tendencies toward females seem to be present in [some cases], albeit in a rather limited and repressed way. Although I found no trace of liaisons with women, cohabitation of masculine ‘sworn virgins’ with female partners is not completely unknown. I know of three such couples, in two of which a sexual relationship is actually indicated. At least two of these three couples were bound by ‘blood-sisterhood,’ a kind of ritual or spiritual kinship that, however, does not usually include living together. According to Tatomir Vukanovic, sworn virgins were in some places ill reputed for ‘certain abnormal sexual relations’ with their blood-sisters.”

(From the chapter “Woman Becomes Man in the Balkans” by Rene Gremaux; of “Third Sex, Third Gender:
Beyond Sexual Dimorphism in Culture and History”
Edited by Gilbert Herdt.)

In general one suspects that that older traditions have only really be wholly eradicated in heavily urbanized areas; while such customs have been quietly puttering along in areas like the Balkans or Anatolia for a long time, places where things have not really changed much at all in millennia, and very, very ancient traditions are still uphold--from when such a third gender functioned in a far more ancient society, before urban society had quashed it (and it's now, of course, being rediscovered as never quite gone in the first place).