Federal judge: Oklahoma’s ban on gay marriage is unconstitutional

posted at 6:41 pm on January 14, 2014 by Allahpundit

He’s a Clinton appointee but he’s been sitting on this case for, if you can believe it, nine years. Maybe that’s because he was waiting for the Supremes to tackle the issue or maybe he just didn’t want to touch it in a state as red as Oklahoma. Either way, the plaintiffs were unhappy. They’re happier today.

“The Court holds that Oklahoma’s constitutional amendment limiting marriage to opposite-sex couples violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution,” U.S. District Court Judge Terence Kern wrote.

The ruling will not go into effect immediately, Kern decided, issuing a stay of his decision based on the recent Supreme Court action granting a stay in the case challenging Utah’s ban on same-sex couples’ marriages…

Human Rights Campaign president Chad Griffin praised the ruling in a statement, saying, “Judge Kern has come to the conclusion that so many have before him – that the fundamental equality of lesbian and gay couples is guaranteed by the United States Constitution. With last year’s historic victories at the Supreme Court guiding the way, it is clear that we are on a path to full and equal citizenship for all lesbian, gay, bisexual and transgender Americans.”

Here’s the opinion, which is standard as far as equal-protection analysis of gay marriage by federal judges goes these days. His first task was to decide what to do with SCOTUS’s ruling in the Windsor case last year, which found Section 3 of DOMA unconstitutional on equal-protection grounds. Should he find that Oklahoma’s traditional marriage law is unconstitutional for the same reason, or should he give the state more deference than the feds got from the Supreme Court with DOMA? Ultimately he decides on both: States, being the historic locus for marriage laws, get more deference, but that deference isn’t unlimited. If they want to discriminate against gay couples, they need to show some rational reason for doing so. “Moral disapproval” isn’t a rational reason per the Supreme Court’s ruling in Lawrence v. Texas, the landmark case from 2003 that declared Texas’s anti-sodomy law unconstitutional. The upshot of Lawrence is that you can’t legislate morality when you’re targeting intimate relationships between consenting adults. You can regulate those relationships if you have some other rational reason for doing so, but the state couldn’t produce one here: “Encouraging procreation” doesn’t fly if you’re not also excluding straight infertile couples from marriage and “encouraging mother/father households” doesn’t fly if you can’t show how banning gay marriage would actually encourage the formation of those households. As I say, all of this is S.O.P. for federal SSM jurisprudence lately. The only real novelty is that, between this ruling and the ruling in Utah last month, the new legal battlefield over gay marriage lies in America’s reddest states. That may be an extra inducement for SCOTUS to deal with this sooner rather than later.

Kern, the Oklahoma judge, seems to think he knows which way that’ll go too:

ep

Anyway, you don’t want me blathering at you about law and gay marriage, especially when it’s another loss for social conservatism. What you want, via Ace, is … devil baby. Cleanse that palate.


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Bmore !
.

listens2glenn on January 16, 2014 at 11:46 AM

Schadenfreude ?

listens2glenn on January 16, 2014 at 11:50 AM

. . . . . . . . . anyone ?

listens2glenn on January 16, 2014 at 11:51 AM

HellOOOooo . . . . . . . . . . (echo chamber)

listens2glenn on January 16, 2014 at 11:53 AM

Everyone left … that’s kinda’ “gay.”

listens2glenn on January 16, 2014 at 11:54 AM

Hey, I’m still here waiting for JetBoy to reply!

Vanceone on January 16, 2014 at 11:57 AM

JetBoy demanded we provide our reasons for opposing gay marriage. In particular, he stated that I made some great points.

I didn’t “demand” anything. I asked. So right from your first sentence, you’re full of shiz. Which is usually a good indicator of where the rest of the comment here is going to go.

He also stated he would reply. I’ve not seen any replies yet to anyone, JetBoy. Just name calling against another poster.

I did. And apologize for not being more prompt. Who did I “name-call”? I did say I wouldn’t believe a word ND30 says…so if that amounts to name-calling, I’m guilty.

The arguments advanced included only one “Because the Bible says” argument, which is traditionally the gays standard ‘you only hate us because of the Bible!!” Which, hey, means that being gay means you aren’t a real Christian if you dismiss the Bible, but whatev.

So you’re in favor of a Christian theocracy in the US? And here I thought the first immigrants to Plymouth came here to escape religious persecution. Dang history books. And for the record, my ancestors came to Salem in 1630.

Not to mention, but again…I’m Catholic, so I am familiar with scripture, thanks. And for the gazillionth time, I don’t associate with the large Leftist liberal gay groups…I abhor them, and they me. Maybe someday in the near future, you’ll finally understand that, but I ain’t holding my breath…because that would ruin the narrative you like to perpetuate.

Other reasons included things like mine, where gay rights are fundamentally opposed to freedom of religion–by choice of the gays. Against freedom of speech, freedom to assemble (ask any gay if they think the Boy Scouts should be allowed to keep out gays) and in general, the argument is that if you don’t like homosexuality you aren’t allowed to be in the public square at all. Can’t work, can’t employ others, can’t sell or buy. Ask a baker if that’s the case.

As for the Boy Scouts, they weren’t forced by anyone to accept gay scouts…they voted internally on it. So if you have an issue with gay kids in the Scouts, you’ll have to contact the BSA about it.

As for the baker and the gay wedding cake…once again, your narrative about me takes precedence over what I’ve repeatedly said: The gay couple that sued that baker should just move on, get another baker, and be done with it. But alas, once more I won’t hold my breath on that actually sinking into your brain anytime soon.

The larger picture here, tho, is…should public businesses be able to deny services to gays or same-sex couples based only on the basis of “gay”? If so, then why not let the same businesses deny blacks or Asians as well? I eagerly await your answer on that.

There are arguments about protecting children (which horrifies JetBoy; why should protecting children from predatory gay men be such a horrifying idea?). Oh yes, the comments to the link provided are full of accounts of other homosexual men adopting and or raping little boys, and their friends are a-ok with it. Russia won’t let Same sex couples from the US adopt anymore. Good for Putin!

And here you go again…spouting more bs than Jay Carney. Ever consider working his job for Obama? You’d be a shoe-in.

Honestly, that entire comment is so insanely ridiculous it merits no more attention. And by the way, Putin said “no” to all US adoptions of Russian children. You can’t even get that right. And again, it’s just a part of your narrative that won’t let facts get in the way.

There’s an argument from the standpoint of governmental power, and that allowing the government to be defined as the source of rights is wrong.

The government should protect the rights of it’s citizens, they are not the source of the rights. I think we may agree on that.

There’s an argument about homosexuality being abnormal (which it is) and why are we enabling something that has bad societal effects. Incidentally, we tried an experiment with no fault divorce. Sure as heck, that one has been negative on society. Why should we throw gay “marriage” onto the pile as well?

If you want to babble on about homosexuality being “abnormal”, go ahead. Trust me, I don’t lose any sleep over it. And how is gay marriage equal to no-fault divorce?

JetBoy, it’s been a day. When are you going to address these arguments? Any of the other gay rights supporters going to try? Because none of you have!

Vanceone on January 16, 2014 at 11:17 AM

There you go.

JetBoy on January 16, 2014 at 12:59 PM

JetBoy on January 16, 2014 at 12:59 PM

Ha! Pwned!

Well done, sir.

This is for you.

alchemist19 on January 16, 2014 at 1:49 PM

Thanks for the reply. I had one mostly written when Hotair reloaded the page and killed my post, and I don’t have time now–I’ll get to it later.

Short part: JetBoy–you aren’t the GLAAD’s of the world. What you would do isn’t what is happening, is it? I”m not worried about you, I’m worried about GLAAD and company and what they want to do.

Vanceone on January 16, 2014 at 1:52 PM

This is for you.

alchemist19 on January 16, 2014 at 1:49 PM

Thanks

Thanks for the reply. I had one mostly written when Hotair reloaded the page and killed my post, and I don’t have time now–I’ll get to it later.

Short part: JetBoy–you aren’t the GLAAD’s of the world. What you would do isn’t what is happening, is it? I”m not worried about you, I’m worried about GLAAD and company and what they want to do.

Vanceone on January 16, 2014 at 1:52 PM

It happens. Nice to see the change of tone, in any event. And no, I don’t support GLAAD or the HRCF or any of those groups. Remember, the loud and vocal groups of any demographic are going to get the most attention, but that doesn’t meant they represent everyone they claim to.

I’ve been ban-hammered by more than one online LGBT forum for daring to hold conservative views. And I’m called a “traitor” and “Uncle Tom” and an “idiot” who can’t see that I “associate with groups that hate me and want me dead”…exact quote.

I’ll check back later.

JetBoy on January 16, 2014 at 2:49 PM

Tell me you’re not championing the least representative, least responsive, most doctrinaire body of government over the one that is most responsive and elected by the people?

When it comes to safeguarding the rights of all the people, including the minority, I would take the most independent, least beholden to political whims branch of government any day of the week.

What doctrine
.
.
.
If that’s the type of simplistic framework you need to place it in, by all means wallow in your doctrinaire and elitist view.

While many types of majorities could theoretically be formed in many different states, including a gay-friendly one (which probably does already exist in places in Massachusetts) they are all still bound to respect the rights of citizens as spelled out in the federal Constitution. As to the final clause of the 14th Amendment, is it your position that a Constitutional right isn’t in effect unless there is a separate act of Congress to enforce those rights by law?

Again, I have to cite for you that it was the people of Illinois that would have have been happy to pronounce Dredd Scott free.
.
.
.
.
but you can’t ignore that they restored the discretion of states against an authoritarian interpretation of who were meant to be citizens and who weren’t.

I’m unpersuaded by pre-Fourteenth Amendment jurisprudence in discussions of how the Fourteenth Amendment is properly applied.

On top of this it was the representative bodies that adopted and ratified the 13th, 14th, and 15th amendments–which you can’t even read without ignoring the last section of each of these amendments and making a cogent argument. Why would Congress be empowered to legislate to enforce these amendments if courts were already understood to be the arbiter of whether a state complied with this amendment?!! (Well, it’s all moot because the courts have taken that power, right?)

You’re saying it again so I’m forced to ask again because I’m so incredulous. Is it your position that the proper redress for state violations of your Fourteenth Amendment rights is through the national legislature? So if your state were to violate your right to equal protection today your only recourse would be an act of Congress? So when an interracial couple challenged Virginia’s law against interracial marriage in the 60s and national polling on those types of marriages were way lower than what it is for same-sex marriage today that couple would only be allowed to marry if Congress acted. That’s the system you’re saying we should have?

There was no express repeal of the 9th and 10th amendments and no statement that these superseded all previous principles which could be said to contrast. I also can’t believe that those people fought a war so that we could ratify Taney’s elitist version of “substantive due process” immediately afterwards, when it was the right of self-government and a state’s right to disdain slavery which was the main call to arms. When the court had acted to counter the “Northern Aggression” of free citizens moving into frontier territories, to bring to a head the conflict between the Missouri Compromise and the citizens of a state being able to determine their laws, when they were adopted as states, threatening the slavery-tolerant balance of powers.

Why would the 10th Amendment have to be repealed? It talks about powers the states or the people have but makes mention of powers the states are prohibited from having by the Constitution. Prior to passage of the 14th Amendment the 10th Amendment meant the states did indeed have the ability to deprive a person of due process and equal protection. When the 14th was passed it specifically took those powers from the states. Pretty straightforward really.

But, I at least can credit you with your championing the doctrine of the interchangeability of the sexes in their roles in society and the equality of orifices, over the discretion of the people–with the express stipulation of toleration of the minority. You sir, are a fine champion of an attenuated, often specious and sophist–sometimes even disingenuous–lines of argument. Thank you, sir, for rightly distrusting me and my motives and setting me in the stands as a spectator to the failed experiment called “self-government”. We’re finally addressing the inequality and preemption of personal liberty, life and limb based on birthdays with the codified and calcified (or novel induction of) groups by which we chose protected from protectors (and unequally actually–substantively protected) by allowing people who want to consider themselves equal in marriage as equal in marriage, against the bigotry of people who had a difference of opinion on whether it was even a right, let alone “equal”.

You’re putting words in my mouth. I haven’t considered anything about “equality of orifices” because it’s not a big deal to me. You’re veering into sex acts in a discussion of an issue where sex acts aren’t central, and such sex acts have already been found to be legal. The only thing I am perhaps guilty of is reading and understanding the Constitution, which includes the protections of some people to do some things you or I might not personally like.

In addition, the manifesto of preemptive federal government that you proclaim as being secular was originally intended by a number of the federalist framers to be without the only worthwhile part of the Constitution of you true-believers in the Constitution-as-manifesto, the Bill of Rights, until a number of anti-federalists insisted that the stark secularism of the federal government include language similar to the secular-infidel states’ constitutions as to guaranteed rights, conceived and ratified by the people of the respective states.

Long live the legal mathematicians in the non-formed function that is the indefinable rights of man!

We can parse quotes from the Framers all day. What matters is what the document they wrote, signed and the states agreed to (and subsequently amended) actually says.

Also, to give you a really black-is-white scenario to chew on. Some of the jurists have recognized that the laws preferring traditional definition of marriage were not drafted with an intent to be discriminatory–but have that net-effect nonetheless. And in your defense, you argue that you intend marriage equality, but do not intend to squelch the speech of dissenters–despite that in numerous cases it has had that effect. And that judges just like those that have argued the equality of marriage, have argued the involuntary service of private entities–thus giving precedent to a convincing case of the effect of denying the right to dissent. Can you live with yourself if you aid and abet the denial of express freedoms (“privileges and immunities”) by the moral disapproval of anything construed by an attenuated argument to be “intolerant” of the equality of sexual orientation?

I’ve said every time it comes up that I oppose any anti-discrimination law on principle. I’ve excused some of the judges who are compelled to enforce those laws and I’ve pointed out that if the question of the Constitutionality of those laws is not before a judge then they’re powerless to strike them down, but there’s a difference between understanding why something is and cheering for it.

Also, from previous discussions with you, I understand that you would like to engage SSM in a way that doesn’t cause the same disregard for marriage as Europe has seen. Thus that is not your “intent”, but can you say without being doctrinaire and authoritarian that it can’t happen here? Is this not isomorphic of “just-the-right-implementors-of-socialism”? At least arguably? Is it really strictly rational to ignore the empirical data that we have on this specie of action?

Yes, because if you frame it right, and convince yourself of the right things, such as name it right, and frame it right. You’re on the side of the white-hats, while I’m on the side of the black.

Congratulations, you are unique among the people who can convince themselves of a position that they are inclined to hold.

Axeman on January 16, 2014 at 2:26 AM

The bolded part above is asking me to prove a negative and that, of course, is impossible. Europe might be instructive to look at but I think the far better example would be to examine the states in this country were gay people are already granted access to civil marriage.

Gay couples can get married right now in 16 states, Illinois has civil unions and has passed a gay marriage law but it hasn’t gone into effect yet and another four states have some other type of legal partnership like civil unions for same-sex couples. Those 21 states combine to account for about 44% of the US population. In those states heterosexuals are still getting married, babies are still being born and the rain of hellfire and brimstone have been conspicuous by their absence. So if we’re trying to discern what will happen in America when gay marriage comes, rather than looking at Europe if we instead look at the nearly half of America where gay marriage or something a lot like it has already happened it looks like the issue is every bit the giant nothingburger that the repeal of “Don’t Ask, Don’t Tell” was.

alchemist19 on January 16, 2014 at 2:57 PM

alchemist only recognizes the receiving end of a pawning. He has plenty of experience with that. – blink on January 16, 2014 at 2:52 PM

And, we are supposed to take your postings seriously, I don’t think so. Perhaps you can have a discussion with ND30 and many heterosexual couples you engage in what you refer.

SC.Charlie on January 16, 2014 at 4:26 PM

Correction:

alchemist only recognizes the receiving end of a pawning. He has plenty of experience with that. – blink on January 16, 2014 at 2:52 PM

And, we are supposed to take your postings seriously, I don’t think so. Perhaps you can have a discussion with ND30 and many heterosexual couples who engage in what you refer.

SC.Charlie on January 16, 2014 at 4:29 PM

No ND30 is a lowlife sodomite, who would probably not have a job if there had not been a gay rights movement.

SC.Charlie on January 16, 2014 at 6:32 AM

Projection. There were employed gays before, there are employed gays now. You just have to be worthy of holding a job instead of coasting on your sexual orientation, which is what I think is giving you the most heartburn.

As for the baker and the gay wedding cake…once again, your narrative about me takes precedence over what I’ve repeatedly said: The gay couple that sued that baker should just move on, get another baker, and be done with it. But alas, once more I won’t hold my breath on that actually sinking into your brain anytime soon.

The larger picture here, tho, is…should public businesses be able to deny services to gays or same-sex couples based only on the basis of “gay”? If so, then why not let the same businesses deny blacks or Asians as well? I eagerly await your answer on that.

JetBoy on January 16, 2014 at 12:59 PM

The reason leftists like JetBoy obsess over discrimination is pure projection. They discriminate and would do so unchecked without laws, so they presume everyone else does.

When you throw out decency and morality as gays and lesbians like JetBoy have done, the only thing you have left is laws. Furthermore, laws are only as good as their enforcement, and as we see with gays and lesbians in positions of power protecting child molesters, enforcement is subject to the whims of the enforcer.

northdallasthirty on January 16, 2014 at 10:11 PM

So if we’re trying to discern what will happen in America when gay marriage comes, rather than looking at Europe if we instead look at the nearly half of America where gay marriage or something a lot like it has already happened it looks like the issue is every bit the giant nothingburger that the repeal of “Don’t Ask, Don’t Tell” was.

alchemist19 on January 16, 2014 at 2:57 PM

Except for this.

Funny. Gay-sex marriage was supposed to DECREASE STD rates, and here they are shooting up.

Probably because gays and lesbians are, as they admit, opposed to monogamy and instead push and promote promiscuity, teach children to be promiscuous, and so forth.

northdallasthirty on January 16, 2014 at 10:16 PM

Okay, I’ve got my reply to you. Did you know that in fact we have had a theocracy at one point in the US history—after the Revolution, I mean? Yep, for a few short years, the territory of Deseret (later Utah) was a theocracy.

Funny, that. Everyone’s rights, including non-mormons, were fully respected. In fact, the LDS church helped pay for a Catholic cathedral. But then the Federal Government sent an army and things all went to heck.

The boy scout thing I was referring to was their exclusion from public spaces in places like Philly and San Diego (I think). They were kicked out of their rented office space in civic centers and told they couldn’t use communal property like parks. Because of the same argument you are using—they could discriminate against gays, but then they didn’t have a place in public society. They lost their rights. For instance, in Philadelphia they had had the same office space since gosh, the early 1900s’—like 1908. The city had rented it to them at like a $1 a year or something. They were removed because suddenly they were no longer “acceptable.” These kinds of things are what the gay groups want—to punish and exclude people who disagree with them.

Jetboy, you may not be associated with GLAAD and its ilk, but they are out there and they want to destroy Christianity that disagrees with them. They openly admit that gay rights trump the 1st amendment, and they are pushing to make that the law.

Shouldn’t those of us under direct threat be allowed to fight back? I don’t care that two men think they should be “married,” I care that those same two men will sue my faith, try to get me fired for disagreeing with them, and in general force me to convert. Radical gays and radical islamists are the same: they have the attitude “convert or die.” I don’t know why you have a problem with people fighting back against the gay fascists.

Or do you honestly think that once the Supremes legalize SSM across the country that everyone will say, “Great! We got what we want, let’s move on!”? Because all your posts seem to assume that once SSM is there, this issue is done. That’s incredibly naive. Gay radicals have openly spoke about their long term goals, and it certainly doesn’t stop with SSM. When are we allowed to fight back, JetBoy?

Evidence is how they punish dissenters. Phil Robertson was fired, and only a great outcry got him back. Who’s going to protect the guy in San Francisco who gets fired because his boss hears that he goes to a mormon church? It happened during prop 8. Who protects little old ladies from the angry gay mobs assaulting her?

The gay movement is making it impossible to coexist with and still follow your faith. You agree that they should have found a different baker—but they didn’t. They searched out one they could sue and drive out of business. It’s going to happen more and more.

Do Christians have a right to be in the public square? Do they have a right to run a business? Why should they be forced to choose between their consciences and their ability to make a living? Should the price of a business license be “you agree that your religion is put on the shelf and cannot impact your business?” Increasingly, the gay rights supporters are saying that if you are a devout Christian, you do not belong in America. You cannot speak, as your views have no value and worse, are hate speech. Liberals in general are pushing this argument, and the gay lobby is in lockstep.

Should public businesses be able to deny services to gays? Why not? Does not that sign say “no shirt, no shoes, no service?” Does that mean anything? What’s so special about gays that makes me serve them? If a topless lesbian walks into my restaurant, can I kick her out? What if two men start making out? What then? When can I kick them out, JetBoy? Ever? Or is being gay the “I can do whatever I want and you can’t stop me!” card? For wedding photographers it now is—they can demand a photographer do whatever they want and how can the photographer refuse? They can’t. Gays get privileges now the rest of us don’t. What about blacks then? Well, being black isn’t a choice (except for Micheal Jackson, of course……).

Let’s use your logic. Can the KKK come into a black photographer’s shop and demand that she take pictures of a KKK wedding? Under the gay logic, yes, they can. After all, when she opened her shop, she left her morality and revulsion on the shelf, right? She can’t judge, and has to offer all the services, right?

What’s the difference between the KKK wedding to a black and a gay wedding to a devout Christian? Both are morally repugnant. YOU may not see it the same way, and no doubt you are offended, but it’s the truth. And if it’s a San Francisco wedding, the straight Christian may very well have a reasonable fear for her safety.

Moving on— I think you are running from the awful truth about homosexual child abuse. I’ve seen the statistic that 7% of the population commit 40% of all child sexual abuse. That 7% is homosexual men. That’s an awfully high number, Jetboy. It’s a serious concern. Plus, NAMBLA is, as another poster mentioned, feted in San Francisco and the gay pride parades. There’s a long running history of older gay men preying on younger gay men—clear back into the bathhouse days. A goodly chunk of children who grow up to be gay were sexually abused by older men. It’s a vicious cycle.

Certainly not all homosexuals are child abusers, but a disturbingly high number, percentage wise, are. And you can’t separate them with “pedophilia is totally different than homosexuality!” Gay literature, homosexual history clear back to the Spartans, is intensely focused on “Man-boy love.” Heck, even look at the film Airplane! The captain is totally hitting on that 8 year old boy.

I’m not sure how you square your homosexual behavior as normal, and yet believe Catholic doctrine. That’s your job—go ahead and convince God that it’s okay. Good luck with that.

Let’s talk philosophy for a bit. Homosexuality IS wrong, it IS abnormal, and here is one of the many reasons why.

Homosexual behavior is in all shapes, ways, and forms disastrous for the fundamental unit of society: the family. Clearly, two men or two women cannot have a family with children.
Further, SS relationships are build exclusively on the concept of sex. The “Eros”, not “Agape” style.

Most things liberals push are detrimental to the family. They focus on selfish behavior, not selfless. Adultery, promiscuity, homosexuality—all direct attacks on the family. All “Mainlined” by liberals.

Another reason it’s wrong—it reduces humans to animals who cannot control themselves. I don’t care if it IS something you are born with— you can rise above it. The argument about “But you are denying gays the chance to be happy if they can’t have sex!” I reply: are nuns or priests happy? Can they be happy? If so, then what’s the issue?
Frankly, with how unhealthy sodomy is anyway, no one should be engaged in it.

Vanceone on January 17, 2014 at 12:17 AM

Vanceone on January 17, 2014 at 12:17 AM

Thank you for your post. I hope more people get to read it even if they don’t agree with it. It’s well thought out and frames the argument perfectly.

Most people confuse tolerance with acceptance. Just because people tolerate certain behaviors doesn’t mean we need to accept them. It certainly doesn’t mean we need to glorify them in the public square.

Thanks again.

njrob on January 17, 2014 at 1:06 AM

Hey, Alchemist, some of your points were good. I’m going to concentrate on two parts.

When it comes to safeguarding the rights of all the people [as elaborated and filtered by "the most independent, least beholden to political whims branch of government"], including the minority, I would take the most independent, least beholden to political whims branch of government any day of the week.

alchemist19 on January 16, 2014 at 2:57 PM

Kings had political pressures, sure. But the more independent they were, the less beholden to the the whims of others they were.

I guess I was wrong to call you authoritarian, then. You’ll be happy to know that white is again white. There’s no way that you could be authoritarian preferring the preemption of the least reachable branch of government available.

You’re putting words in my mouth. I haven’t considered anything about “equality of orifices” because it’s not a big deal to me. You’re veering into sex acts in a discussion of an issue where sex acts aren’t central

We can adopt an agnostic view of sexual relationships. We can take the view that we don’t really know what makes one person one way or another, or we can’t even classify with any completeness what they do when they get together. But then, we really don’t have any basis to say that those relationships should be recognized on an equal basis with a relatively defined traditional manogamous sexual relationships, do we?

You’re argument seems then to be no matter what it is that they are doing if they want to count it equal to marriage, the state violates equal protection–forget it, it’s not “protection” now–treatment under law. But isn’t a rational application of law really only supposed to treat equal conditions equally?

But I was so mean to call you authoritarian, I was mean about the most authoritarian branch of government in not considering the virtue that they are the least beholden and most independent. Those are good things!

And how boorish of me to actually consider the details of what makes–up, you know, the details of authoritarianism or details the sexual relationships. Life’s a lot easier without details that would argue toward and authoritarian. What I need to do is construct a fully rational argument–that also has to be recognized by you as rational–and just avoid any details that might be mean or needlessly vulgar.

That’s all. Maybe I can get Sisyphus to help.

and such sex acts have already been found to be legal.

But, I’m told, legality is not endorsement. Do you think that the law should suffer the invalidity of my applying the word “authoritarian” to you? I mean I’ve used words that are manifestly untrue, right? Should the law suffer my untruth? Well, the courts have affirmed the right to lie about medals of honor–of course, lying about your being authoritarian can probably be slander, so maybe I shouldn’t be able to say something. And talk about orifices is just gross and sounds like hate speech, so many I shouldn’t be allowed to say those things either.

So we’ll have to adopt a flat plane of rights, unfiltered through the winds and temperaments of the courts, where for some unforeseen reason, the state should have to suffer my slander and mention of orifices, how does that make that speech equal to your ever so legal championing of rights?

However, if the state had to act on speech, I would prefer that low quality speech, such as my own would be curtailed first. And why is that, because it’s legality never made it equal of the same consideration. It is a different situation, thus equal protection might not apply in the same way. For example, if you had slandered somebody, simply taking their preference for the least responsive–er beholden branch of government, that is as actionable as my slandering you.

So, being that legality is not endorsement, and legality says nothing about comparability, your mention of the legality doesn’t address equality in the slightest.

Axeman on January 17, 2014 at 11:30 AM

The Constitution protects good speech and bad speech. It doesn’t pronounce them worthy of equal treatment. Thus, there is a clear reasonable line between protection and treatment. If all you can cite is that two things are treated unequally, by an the most general use of the word and legal sense of the word “protection”, it doesn’t comprise a lack of protection except in the hot-house-flower world of court precedence and the way they are custom to use words.

However, equal treatment never becomes what was ratified under the 14th amendment, it remains the Court’s construance, at least in the mind of any person who can keep two concepts separate. Also, although courts have addresses this relating to groups, it never becomes the language. The ratified language is always of “persons”. Thus it might be a current argument of the court that the way that they have had the most success in ensuring this in in considering disparate treatment among groups. But it doesn’t make it any the less the letter of the amendment that persons will receive equal protection.

And the more you argue that equal protection is some sense treatment by law, then the more you argue that persons unequally treated by law, suffer the same lack of “protection” under that law. And your emphasis on groups might in fact create customs of resolution which obscure the same delivery to persons that you do to groups.

So then how does law select between the circumstances of one individual and another? It has to discriminate conditions which bear a sufficient to consider another case of treatment. If we can simply declare by different outcome unequal “protection” (straining the word for the person in the same sense of a group).

It seems that the legal reduction of people to members of groups is actually the supremacy of the naturalistic-reductionistic-and-yes-de-facto-American liberalconcept of the relationship between government and man.

As long as we go around refusing to define rights in totality that we might not stamp on a single gossamer strand, do I not have the right not to be treated reductionistically by my government?

Now, before you trivialize this idea. I have an undefined, unreduced relationship to my government from which it has a role of defending whatever I am against whatever those people outside the country are and whatever those beings found guilty of crimes inside this country are. I have a bag of unreduced, undefined rights by which the tension of that relationship and the balance of powers is established. My rights and my circumstances is my representation to the adjudicating court. Thus if it can’t reduce my rights, how can it reduce the holder of those rights to a simple group membership? If I am to be reduced independent from my rights, in what pocket, in the natural world am I keeping my rights. What is the attachment from the world of reducible things to the gossamer strands of irreducible rights? Thus central to my irreducible rights is my right not to be reduced.

Reduction of the individual to group membership is a denial of a central right of man, should he be said to have any. Thus a court only considering my jeopardy as a member of a group is imperfectly considering my rights, but successfully delivering according to the American Progressive vision. My rights under law are then no more than a species of my rights where they intersect with the progressive vision. Now, how much does it alarm you that the indefinable cloud of rights has some instances in the complement of the court’s recognition, that I might be denied the recognition of some rights?

You might say “unimportant”. Or you might say “impractical to address every pre-identified right I may or may not have”. But should they exist in that intersection of the compliment of you are showing no concern about the rights I have that are out of view.

The Court is an imperfect system, you might defend. It does the best. Yes, there are some winners and some losers but as long as we have lettered and wise men to navigate these waters, the damage is not that bad.

So what makes gays insufferable as losers if their penalty is to not receive benefits equal to some other cluster of situations where we don’t have a defined function of comparison that do? Why would you insist that their “right” (to benefits) is a heinous denial of rights if sometimes we have to suffer losers to receive a lessoning of benefits?

Again the instance of a “loser” in the court’s meting out of operating room for one’s rights against another’s means that one persons rights have been diminished below what they should have been.

How is the presence of a loser in an imperfect system less heinous than if we simply imperfectly apply equality in a known case and create a gap?

In addition, what is usually cited is the main “right” that is being violated is the right to be treated equally. And then we get another layer of protection, because in not treating them equally and respecting that “right”, they are unfairly deprived of a right to receive the same benefits–or be treated equally.

The argument has largely been circular, and to restrain that argument I need to come up with not only a fully rational answer, but one that you will accept as fully rational.

What we need is less of this: When you dismissed my “rights” above, I can take it that you DISMISSED MY RIGHTS!!!, I can then equate it to the fullness of conditions where we could say those words. As well, you can take a case where I may not have recognized everything you recognize as rights–or the court recognizes as rights, and you have the option of making that that I’m DISMISSING RIGHTS!!! and then attribute to me a gradient of the worst things that can imply.

You want the law to embody good will. I get that. From where would the law get good will?

Axeman on January 17, 2014 at 3:00 PM

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