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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Nope. Are you one of those people who attacks Christian Conservatives because you feel their viewpoints affect your own selfish view of “freedom”?

kingsjester on January 15, 2014 at 1:21 PM

Nope. Conservative Christians have a lot of viewpoints I agree with. If anyone, conservative Christian or otherwise, tries to force their views in violation of the Constitution though I’m not afraid to call a spade a spade.

alchemist19 on January 15, 2014 at 1:37 PM

And currently, one class of people have the right to marry in accordance with their sexual orientation and another class of people do not. The exact same thing.

libfreeordie on January 15, 2014 at 12:11 PM

“in accordance with their sexual orientation” has no objective meaning in an equal protection context and does not invoke equal protection in the slightest. It is a request that the Court invent additional rights based on subjective behavior preferences, a request never accorded equal protection status nor mandated by the 14th amendment. There actual rights of marriage are identical for each group which is all equal protection requires.

tommyboy on January 15, 2014 at 1:38 PM

Again, I ask, if FDR could tell the Supreme Court to pound sand, why doesn’t the governor of Oklahoma do the same to this feral “judge”?

Nutstuyu on January 15, 2014 at 1:39 PM

Who said anything about being anti joy or happiness? We’re just not in favor of dangerous, unhealthy, unnatural sexual activity.

Nutstuyu on January 15, 2014 at 1:30 PM

What about those who get their joy and happiness from engaging in dangerous, unhealthy or unnatural sexual activity?

You’re raining on their parade.

That is what this is all about, really. That and their wanting to jerk around the Christians.

fadetogray on January 15, 2014 at 1:42 PM

BTW, the SLT release an opinion poll in Utah:

Link to picture.

Couples allowed state-issued marriage license: 48 YES – 48 NO
Couples couples have civil unions / domestic partner: 72 YES – 25 NO

Statistic tie for SSM in Utah … wow.

ZachV on January 15, 2014 at 1:42 PM

BTW, the SLT release an opinion poll in Utah:

Link to picture.

Couples allowed state-issued marriage license: 48 YES – 48 NO
Couples couples have civil unions / domestic partner: 72 YES – 25 NO

Statistic tie for SSM in Utah … wow.

ZachV on January 15, 2014 at 1:42 PM

http://www.sltrib.com/sltrib/news/57391605-78/marriage-sex-percent-state.html.csp

ZachV on January 15, 2014 at 1:43 PM

Vanceone on January 15, 2014 at 1:23 PM

I was speaking specifically about what the federal government does and does not do, and the feds stepping into marriage issues isn’t standard. The actual prohibitions against polygamy and against same-gender marriages are state matters and the states are free to regulate marriage for themselves so long as they’re doing so in accordance with Constitutional principles.

The fact the feds may have gotten it wrong with Mormons back in the 1800s is not a good reason for the feds to get it wrong today in the 2000s and let states discriminate against gay people for no rational reason.

alchemist19 on January 15, 2014 at 1:44 PM

alchemist19 on January 15, 2014 at 1:37 PM

It is not your place to determine what violates the Constitution.

That is way above your paygrade.

kingsjester on January 15, 2014 at 1:44 PM

alchemist19 on January 15, 2014 at 1:37 PM

Oh, and the Constitution was written by Christian men.

kingsjester on January 15, 2014 at 1:45 PM

Vanceone on January 15, 2014 at 1:23 PM

Just so I’m clear, I do think Utah or any other state that wants to would be within their rights to pass a law legalizing polygamy. It might not be the wisest thing to do but I do think they have the ability to do so.

alchemist19 on January 15, 2014 at 1:45 PM

alchemist19 on January 15, 2014 at 1:45 PM

Then, they were in their rights to ban “gay Marriage”, according to you, then.

You can’t have it both ways.

kingsjester on January 15, 2014 at 1:47 PM

alchemist is OPPOSED to – one man marrying multiple women

I don’t get that at all. Polygyny is an historically normal and widespread form of marriage. Why should a man who is able to provide for many women be forced by law to have only one wife?

It has the additional benefit of creating a class of unattached beta males for waging war against the state’s enemies.

With gay marriage even if there is no war to fight, those unattached males who aren’t worth a woman’s time can hook up with each other. Most males are remarkably versatile with regard to their “sexual orientation,” as we know from our prisons.

And it is only a small part of the picture. I don’t see why he opposes it.

fadetogray on January 15, 2014 at 1:52 PM

Just so I’m clear, I do think Utah or any other state that wants to would be within their rights to pass a law legalizing polygamy. It might not be the wisest thing to do but I do think they have the ability to do so.

alchemist19 on January 15, 2014 at 1:45 PM

Okay. That’s consistent, although I still think you underestimate the value of polygyny.

fadetogray on January 15, 2014 at 1:55 PM

Thank you…as much as your entire comment turns my stomach (to put it mildly), more than any other on this topic…or any topic…I’ve seen in all my years on HotAir, I will address the points you made give you kudos for for the honest answer.

[...]

I promise I’ll get into everyone’s more detailed opinions.

JetBoy on January 15, 2014 at 12:54 PM

Turned your stomach? I was thinking your types are able to swallow anything…

And do not bother “getting into detail”, I’m not interested one yota. I’m not American, so do not blame my views on American conservatives.

Wonder how gays are managing to detect these threads anyway and pile up, do they reading this blog on regular basis as I do or they organize twitter-mobs?

Rookie on January 15, 2014 at 1:59 PM

Just so I’m clear, I do think Utah or any other state that wants to would be within their rights to pass a law legalizing polygamy. It might not be the wisest thing to do but I do think they have the ability to do so.

alchemist19 on January 15, 2014 at 1:45 PM

Ok, but on what basis can you say that the 14th amendment DEMANDS state recognition of gay marriage but doesn’t do the same for polygamy?

gwelf on January 15, 2014 at 2:04 PM

… nor shall any State … deny to any person within its jurisdiction the equal protection of the laws.

The judge lore that has grown up around this statement is that restriction on individuals can be tolerated as long as no single group suffers the greater burden. But that’s not what it says. It’s not about groups , it’s about persons, “any person“. And that makes the argument about groups capricious.

One of the reasons that rights aren’t enumerated in the 14th amendment is that from the beginning the founders felt that the entire field of rights was too ephemeral and thus, ineffable to be given a fixed form which could be litigated.

However, the judges reaction to this is to recognize rights by unequal treatment by membership in select (and doctrinaire groups) –and also any grou they decided needed “protection”. If we allow for the ineffability of the full expression of rights, how is it any better to recognize rights by the lack of equal treatment among the favorite groups that judges like to think of?

Doesn’t it kind of tamp the “right to be considered an individual” if you can never consider the individual a group in himself or herself? And doesn’t that kind of reduce the idea of individuality before the law? Thus one view of groups, that the invidiual is a sset of persons with his own unique collection of traits and behaviors is entirely consonant with the plain language of the amendment ratified by the states, (or as close to it as this one came).

Thus if “equal protection” is violated anytime a group is considered for its differences, then anytime we sum up the differences by which an individual is judged under law, we fail to protect that individual to the same extent as other individuals.

Before, I get on with this, I want to bring in the picture of America for many conservatives. Chances are there is a flag and men who died to protect it. However, if we look at it a bulk of that, most of it comes from a 19th century invasion of seceded states, per the retained rights from the Articles and the 9th amendment and four 20th century wars in Europe and Asia where men were involuntarily enlisted in the military, simply based on the fact that they were born on one day and not another.

Now, the price we asked of these young men, in a temporary suspension of liberty in life and limb, must be such that we have to view that survival of the United States was at stake. So for the sake of this arm of the argument, we will not waver in saying that our very country and freedom depended upon the involuntary servitude of these young men. Otherwise, it makes the disparate impact of the draft all that much worse.

If it was only for the interest of the Americans in power at the time, to put the sacrafise of these men in some scale with the equality of whatever you wanted to call marriage being recognized by the state, is to miss that while these men were being specifically NOT protected–and arguably providing the protection of others, others enjoyed the protection of home.

How odd that some current strain of thought or musings in a judges mind could provide some attenuated academic reading of the 14th amendment, decide that conscription was “unconstitutional”, weaken our position in Europe, give Wernher Von Braun more time to complete the atomic bomb and hand it over to Hitler, or decide that every-freakin’-body had to be at the front to “play fair”, and equally protect–in the most basic form of the word “protect”–every person.

Could we have survived? Possibly. History doesn’t provide a control group. For example, perhaps Von Braun was already nearing completion of his bomb, and like Oscar Schindler had become disheartened and would never have trusted the bomb to the Nazis. Perhaps the Nazis, as the greenies of their day, might never have conscienced the distruction on nature on such a wide scale. Perhaps this, perhaps that. But winning a war makes the debate about how close we were to actual destruction academic.

But let’s say that liberty is a good enough guarantor. Let’s say that were our country in jeopardy, enough men would have volunteered. What would they have been volunteering for? A stale understanding of academician, an exact calculus of rights and Constitutional theory or a picture in their head of what America was?

We could call them “myths”. Are “myths” rational? We could easily say “no”. So when “myths” and sentiment have given you a country to argue this in, based on the unequal and legally involuntary and arbitrary hand of government, the ineffable moral qualities of citizens of this country have already given you way more than academics ruling your lives by their select game of telephone.

In addition the plain language of the 14th, separates into 3 separate cases the “privileges and immunities” of citizenship, deprivation of “life, liberty, or property without due process” (which has come in theory to mean substantive due process, invented by a judge Roger Taney, who argued in Dredd Scott, that blacks could in no sense ever be full citizens, all part of our rich heritage from American oligarchs.) and the equal protection of laws. In the 20th century, judges–the least representative, most authoritarian form of power in our republic–have ordained themselves 1) definers of rights, privileges, and immunities under the heretage of ineffable and not strictly definable rights (thus, also not strictly rational), the determiners of “due process”, and finally the arbiters of equality.

Even more, although these cases are laid out in 3 separate clauses, the current set of judges are arguing that things are rights, privileges or immunities based on a constrained lack of “equal protection” and munging the whole thing up into Taney’s invented “substantive due process” which is ultimately the judges correcting everybody’s homework.

Oddly enough, I have to credit Oliver Wendell Holmes for saying that the law must not become some sterile academic moral calculus, which prohibits discretion and discernment. Perhaps, since he could see the ACLU ascending, he was seeing signs of what is to come.

Axeman on January 15, 2014 at 2:08 PM

If a state cannot define a marriage as between one man and one woman then they cannot define it at all. The 14th amendment doesn’t say anything about gays or women or minorities or any other subgroup of citizens. It says that the state must use due process before depriving people of life, liberty and property and equally apply the protection of it’s laws.

So, if the state benefits tied to “marriage” are covered by the 14th amendment then the state cannot keep them from anyone. Any group or individual that doesn’t get the government benefit can claim they are being denied their “rights” and any rational basis for denying them can simply be turned aside by saying that giving benefits to anyone is in the state’s interest and that only hatred and animus and moralizing can be behind singling out only a select group of people who get the benefit.

gwelf on January 15, 2014 at 2:11 PM

Libfree or die

“Not having a disease is a condition of marriage now? You people really *are* trying to find a way to reinscribe exclusion based upon pre-existing conditions aren’t you?”

Not having a disease has been a condition of marriage for well over a hundred years in law. For many hundreds of years in social custom. Are you married? Did you have to get a blood test? Did you pass your blood test? You argue like you failed it. Why do you think a blood test is required? LForD, you are truly a waste of life. There is an internal organ that sits in the top front of your head. Don’t let it go to waste.

Old Country Boy on January 15, 2014 at 2:14 PM

When you think about it siblings who want to marry deserve the state’s recognition and benefits. The state’s not going to stop these people from being together and having kids so we need to bring them more fully into the institution of marriage and supporting them so they can be as successful as possible by granting them state benefits and protections. Otherwise were just throwing their kids to the wolves. Don’t these kids deserve to have their family dignity respected by the state?

/Things you’ll never hear Kennedy say because he’s a hack

gwelf on January 15, 2014 at 2:16 PM

kingsjester on January 15, 2014 at 1:47 PM

It wasn’t banned, because it never existed.

It isn’t “gay” because there’s only disease and physical danger, not joy and hapiness.

It isn’t “marriage” because there is not one of each gender involved.

Nutstuyu on January 15, 2014 at 2:18 PM

And just to be clear: Utah CANNOT pass a law legalizing polygamy. It is against the state constitution, that part cannot be amended, and as part of Utah’s state charter, they cannot have plural marriage.

So if in fact plural marriage were legalized in Utah, Utah would cease to be a state. That’s a pretty compelling state interest, don’t you think?
I find it rather incredulous to think that the people who passed the 14th amendment and forced all of those restrictions on Utah regarding multiple women in a marriage would have been hunky-dory with SSM.

I further find this incredulous: the SSM lobby’s definitions of what’s right and wrong.

So I’m married to my wife. If I decide to marry another woman, that’s polygamous and wrong. Unless I get a divorce first. If my wife divorces me and marries another woman, that’s perfectly fine. If my wife and I want to marry the same woman… we deserve to go to jail. Alchemist thinks that is perfectly reasonable.

Vanceone on January 15, 2014 at 2:18 PM

So morality isn’t a reason to proscribe something in the law?

So age of consent is right out then.

Also, I’d like someone to name a single law that isn’t fundamentally based in some sort of morality.

gwelf on January 15, 2014 at 2:19 PM

I don’t get that at all. Polygyny is an historically normal and widespread form of marriage.

There’s a key terminology break here. Polygyny or polygamy or whatever is not a form of marriage: it’s simply being involved in more than one marriage. If marriage is just a union or contract, then there’s no reason a person can’t be involved in more than one just like they can be in more than one LP or LLC. But at the core, there was always a marriage between one man and one woman. It’s just that one man would then marry another woman, and another, and so on.

Given that teh gheys have successfully determine “marriage” is no longer a unique separate word, but merely a synonym for a contract, there is no equal protection or freedom of assembly reason why I can’t be in more than one.

Nutstuyu on January 15, 2014 at 2:22 PM

So morality isn’t a reason to proscribe something in the law?

So age of consent is right out then.

Also, I’d like someone to name a single law that isn’t fundamentally based in some sort of morality.

gwelf on January 15, 2014 at 2:19 PM

Its just based on taste, ask any “rationalist.”

In some societies you greet your neighbor, in others you eat your neighbor.

Murphy9 on January 15, 2014 at 2:23 PM

This is how you distract yourself from engaging the actual issues and engaging the very real fact that the debate on same-sex marriage, at least in terms of the law, is about to come to and end. The Supremes will have taken care of this before the 2016 primary begins.

libfreeordie on January 15, 2014 at 9:58 AM

Good, authoritarian!

Axeman on January 15, 2014 at 2:26 PM

gwelf on January 15, 2014 at 2:16 PM

Can I tweet this (when I get to a computer where it’s not blocked)?

Nutstuyu on January 15, 2014 at 2:27 PM

So morality isn’t a reason to proscribe something in the law?

gwelf on January 15, 2014 at 2:19 PM

According to some of the atheists here “morality” can’t be defined apart from what is or isn’t proscribed by the law.

tommyboy on January 15, 2014 at 2:32 PM

Can I tweet this (when I get to a computer where it’s not blocked)?

Nutstuyu on January 15, 2014 at 2:27 PM

Sure. =)

I’d also add the only reason you could possibly and reasonably object to sibling marriages and families from getting the full protection and dignity of society and the law is because you hate them and are filled with animus.

/More things you’ll never hear Kennedy say because he’s a hack

gwelf on January 15, 2014 at 2:37 PM

Otherwise were just throwing their kids to the wolves. Don’t these kids deserve to have their family dignity respected by the state?

/Things you’ll never hear Kennedy say because he’s a hack

gwelf on January 15, 2014 at 2:16 PM

Wait, kids can be “thrown to the wolves” if their marriages aren’t recognized? I thought kids had no part in marriage? How is the kids dignity disrespected by the presence or lack of some wholly separate contract?

And isn’t “family dignity” outside of the state action a “moral disapproval”. While there is a firm (right!) argument for laws not being based on “moral disapproval” is it really the state’s role to make up for the the private moral disapproval of other citizens? Here we are not talking about the the inequality of treatment by state actors, but by private actors, if the state does not act. And what is the basis of the state’s action? Moral approval?

This is the type of two-second logic I read from judges all the time. You can’t make marriage NOT about raising families simply by arguing that draconian steps weren’t taken to prevent marriages without families.

When you’re trying to reach the conclusion you want to reach, there is a tendency to get sloppy and stipulative. Despite that the state will do all they can for the families of these unions because of these unions, themselves, we will still be dealing with the noise that the unions aren’t strictly about families. And they’ll do it for the children–which have nothing to do with marriage equality.

Stop following my hand!!

Axeman on January 15, 2014 at 2:38 PM

Oh, and the Constitution was written by Christian men.

kingsjester on January 15, 2014 at 1:45 PM

The men were Christians but the government they set up was secular, and the latter fact is what’s relevant.

alchemist19 on January 15, 2014 at 3:17 PM

Then, they were in their rights to ban “gay Marriage”, according to you, then.

You can’t have it both ways.

kingsjester on January 15, 2014 at 1:47 PM

I said the state could allow polygamy just like it can allow gay marriage. If it’s going to prohibit either practice it needs to at the very least establish it has a rational basis for doing so and in the case of gay marriage they keep coming up short and that’s why those bans keep getting struck down.

alchemist19 on January 15, 2014 at 3:19 PM

Excellent article on marriage published today:

Marriage Matters, and Redefining It Has Social Costs
by Ryan T. Anderson

What is marriage, why does marriage matter for public policy, and what are the consequences of redefining marriage? Adapted from testimony delivered on Monday, January 13, 2014 to the Indiana House Judiciary Committee.

INC on January 15, 2014 at 3:23 PM

Ok, but on what basis can you say that the 14th amendment DEMANDS state recognition of gay marriage but doesn’t do the same for polygamy?

gwelf on January 15, 2014 at 2:04 PM

There are a couple different ways to look at it. I think there’s a rational basis for not allowing plural marriages and at least as far as I’m aware, no one’s yet articulated a rational one for not allowing same-gender marriages. Beyond that, even if we ignore the historical gender imbalance issues in polygamous societies, prohibiting polygamy wouldn’t forbid any person from having a reasonable opportunity to access the legal status of marriage but forbidding same-gender marriages does restrict any reasonable opportunity for access by gay people. Even the interracial marriage prohibitions didn’t completely preclude marriage to anybody but the gay marriage bans do.

alchemist19 on January 15, 2014 at 3:25 PM

I have included only some of the embedded links. Any emphases in bold are mine.

Ryan T. Anderson is the William E. Simon Fellow at The Heritage Foundation and the Editor of Public Discourse. He is co-author, with Sherif Girgis and Robert George, of the book What is Marriage? Man and Woman: A Defense, and is a doctoral candidate in political science at the University of Notre Dame.

[You can watch video of this testimony here.]

I will be speaking today from the perspective of political science and philosophy to answer the question “What Is Marriage?” I’ve co-authored a book and an article in the Harvard Journal of Law and Public Policy with a classmate of mine from Princeton, Sherif Girgis, and with a professor of ours, Robert George. Justice Samuel Alito cited our book twice in his dissenting opinion in the Supreme Court case involving the Defense of Marriage Act.

The title of that book is “What Is Marriage?” An answer to that question is something we didn’t hear today from people on the other side. It’s interesting that we’ve had a three-hour conversation about marriage without much by way of answering that question.

Everyone in this room is in favor of marriage equality. We all want the law to treat all marriages equally. But the only way we can know whether any state law is treating marriages equally is if we know what a marriage is. Every state law will draw lines between what is a marriage and what isn’t a marriage. If those lines are to be drawn on principle, if those lines are to reflect the truth, we have to know what sort of relationship is marital, as contrasted with other forms of consenting adult relationships.

So, in the time I have today, I’ll answer three questions: what is marriage, why does marriage matter for public policy, and what are the consequences of redefining marriage?

INC on January 15, 2014 at 3:28 PM

What is marriage?

Marriage exists to unite a man and a woman as husband and wife to then be equipped to be mother and father to any children that that union produces. It’s based on the anthropological truth that men and women are distinct and complementary. It’s based on the biological fact that reproduction requires a man and a woman. It’s based on the sociological reality that children deserve a mother and a father.

Whenever a child is born, a mother will always be close by. That’s a fact of biology. The question for culture and the question for law is whether a father will be close by. And if so, for how long? Marriage is the institution that different cultures and societies across time and place developed to maximize the likelihood that that man would commit to that woman and then the two of them would take responsibility to raise that child.

Part of this is based on the reality that there’s no such thing as parenting in the abstract: there’s mothering, and there’s fathering. Men and women bring different gifts to the parenting enterprise. Rutgers sociologist Professor David Popenoe writes, “the burden of social science evidence supports the idea that gender-differentiated parenting is important for human development and the contribution of fathers to childrearing is unique and irreplaceable.” He then concludes:

We should disavow the notion that mommies can make good daddies, just as we should the popular notion that daddies can make good mommies. The two sexes are different to the core and each is necessary—culturally and biologically—for the optimal development of a human being.

This is why so many states continue to define marriage as the union of a man and a woman, many doing so by amending their constitutions.

INC on January 15, 2014 at 3:31 PM

Ironically, very ironically, as I mentioned yesterday on this thread, in June Obama himself initiated a national conversation on the importance of fathers. Indeed, he’s given numerous speeches on fatherhood, even as he has worked to destroy the family. No logic is evident in his thinking.

Here’s Ryan again:

So why does marriage matter for public policy? Perhaps there is no better way to analyze this than by looking to our own president, President Barack Obama. Allow me to quote him:

We know the statistics: that children who grow up without a father are five times more likely to live in poverty and commit crime, nine times more likely to drop out of school, and twenty times more likely to end up in prison. They are more likely to have behavioral problems or run away from home, or become teenage parents themselves. And the foundations of our community are weaker because of it.

There is a host of social science evidence. We go through the litany and cite the studies in our book, but President Obama sums it up pretty well. We’ve seen in the past fifty years, since the war on poverty began, that the family has collapsed. At one point in America, virtually every child was given the gift of a married mother and father. Today, 40 percent of all Americans, 50 percent of Hispanics, and 70 percent of African Americans are born to single moms—and the consequences for those children are quite serious.

The state’s interest in marriage is not that it cares about my love life, or your love life, or anyone’s love life just for the sake of romance. The state’s interest in marriage is ensuring that those kids have fathers who are involved in their lives.

But when this doesn’t happen, social costs run high. As the marriage culture collapses, child poverty rises. Crime rises. Social mobility decreases. And welfare spending—which bankrupts so many states and the federal government—takes off.

If you care about social justice and limited government, if you care about freedom and the poor, then you have to care about marriage. All of these ends are better served by having the state define marriage correctly rather than the state trying to pick up the pieces of a broken marriage culture. The state can encourage men and women to commit to each other and take responsibility for their children while leaving other consenting adults free to live and to love as they choose, all without redefining the fundamental institution of marriage.

INC on January 15, 2014 at 3:36 PM

On that note, we’ve heard concerns about hospital visitation rights (which the federal government has already addressed) and with inheritance laws. Every individual has those concerns. I am not married. When I get sick, I need somebody to visit me in the hospital. When I die, I need someone to inherit my wealth. That situation is not unique to a same-sex couple. That is a situation that matters for all of us. So we need not redefine marriage to craft policy that will serve all citizens.

INC on January 15, 2014 at 3:36 PM

Vanceone on January 15, 2014 at 2:18 PM

I admit I’m not in Utah so I’m not intimately familiar with Utah Constitutional law but this is an interesting. I see the section that is says cannot be revoked without the consent of the United States; can the Utah state constitution be amended by normal amendment procedures to first delete the necessity of the consent of the United States and then get rid of the polygamy prohibition? If the feds did try to step in to prevent Utah amending their state Constitution isn’t that in and of itself a violation of state sovereignty?

alchemist19 on January 15, 2014 at 3:39 PM

The future of society is grim without children who grow up into well-adjusted, mature adults capable of responsibility in all they do and in establishing healthy relationships.

Lastly, I’ll close with three ways in which redefining marriage will undermine the institution of marriage. We hear this question: “how does redefining marriage hurt you or your marriage?” I’ll just mention three in the remaining time that I have.

First, it fundamentally reorients the institution of marriage away from the needs of children toward the desires of adults. It no longer makes marriage about ensuring the type of family life that is ideal for kids; it makes it more about adult romance. If one of the biggest social problems we face right now in the United States is absentee dads, how will we insist that fathers are essential when the law redefines marriage to make fathers optional?

Much of the testimony we have heard today was special interest pleading from big business claiming that defining marriage as the union of a man and a woman would make it hard for them to appeal to the elite college graduates from the East and the West coasts. We heard no discussion about the common good of the citizens of Indiana—the children who need fathers involved in their lives. Redefining marriage will make it much harder for the law to teach that those fathers are essential.

Second, if you redefine marriage, so as to say that the male-female aspect is irrational and arbitrary, what principle for policy and for law will retain the other three historic components of marriage? In the United States, it’s always been a monogamous union, a sexually exclusive union, and a permanent union. We’ve already seen new words created to challenge each and every one of those items.

INC on January 15, 2014 at 3:40 PM

Here are the three words:

“Throuple” is a three-person couple. New York Magazine reports about it. Here’s the question: if I were to sue and say that I demand marriage equality for my throuple, what principle would deny marriage equality to the throuple once you say that the male-female aspect of marriage is irrational and arbitrary? The way that we got to monogamy is that it’s one man and one woman who can unite in the type of action that can create new life and who can provide that new life with one mom and one dad. Once you say that the male-female aspect is irrational and arbitrary, you will have no principled reason to retain the number two.

Likewise, the term “wedlease” was introduced in the Washington Post in 2013. A wedlease is a play on the term wedlock. It’s for a temporary marriage. If marriage is primarily about adult romance, and romance can come, and it can go, why should the law presume it to be permanent? Why not issue expressly temporary marriage licenses?

And lastly, the term “monogamish.” Monogamish was introduced in the New York Times in 2011. The term suggests we should retain the number two, but that spouses should be free to have sexually open relationships. That it should be two people getting married, but they should be free to have sex outside of that marriage, provided there’s no coercion or deceit.

Now, whatever you think about group marriage, whatever you think about temporary marriage, whatever you think about sexually open marriage, as far as adults living and loving how they choose, think about the social consequences if that’s the future direction in which marriage redefinition would go. For every additional sexual partner a man has and the shorter-lived those relationships are, the greater the chances that a man creates children with multiple women without commitment either to those women or to those kids. It increases the likelihood of creating fragmented families, and then big government will step in to pick up the pieces with a host of welfare programs that truly drain the economic prospects of all of our states.

INC on January 15, 2014 at 3:42 PM

Finally, I’ll mention liberty concerns, religious liberty concerns in particular. After Massachusetts, Illinois, and Washington, DC, either passed a civil union law or redefined marriage, Christian adoption agencies were forced to stop serving some of the neediest children in America: orphans. These agencies said they had no problem with same-sex couples adopting from other agencies, but that they wanted to place the children in their care with a married mom and dad. They had a religious liberty interest, and they had social science evidence that suggests that children do best with a married mom and dad. And yet in all three jurisdictions, they were told they could not do that.

We’ve also seen in different jurisdictions instances of photographers, bakers, florists, and innkeepers, people acting in the commercial sphere, saying we don’t want to be coerced. And that’s what redefining marriage would do. Redefining marriage would say that every institution has to treat two people of the same sex as if they’re married, even if those institutions don’t believe that they’re married. So the coercion works in the exact opposite direction of what we have heard.

Everyone right now is free to live and to love how they want. Two people of the same sex can work for a business that will give them marriage benefits, if the business chooses to. They can go to a liberal house of worship and have a marriage ceremony, if the house of worship chooses to. What is at stake with redefining marriage is whether the law would now coerce others into treating a same-sex relationship as if it’s a marriage, even when doing so violates the conscience and rights of those individuals and those institutions.

So, for all of these reasons, this state and all states have an interest in preserving the definition of marriage as the union—permanent and exclusive—of one man and one woman.

INC on January 15, 2014 at 3:44 PM

That’s Ryan Anderson’s column adapted from testimony he gave Monday in Indiana.

I quoted it in its entirety for several reasons.

First of all, too many people never read links. I hope by quoting it and putting some of it in bold that people will stop and read and think about what he said.

Second, he succinctly covers almost all of the issues and gives cogent answers.

Third, from comments here it seems many people are not married and/or have no children. Many have spent zilch time thinking about the consequences of redefining marriage for children, and for society—because the future of any society is its children.

INC on January 15, 2014 at 3:48 PM

So morality isn’t a reason to proscribe something in the law?

So age of consent is right out then.

Also, I’d like someone to name a single law that isn’t fundamentally based in some sort of morality.

gwelf on January 15, 2014 at 2:19 PM

Simple moral disapproval alone is not reason enough for a prohibition. You have to be able to clearly articulate a rational secular purpose.

When it comes to the age of consent, children have been found to lack the cognitive capacity to understand the potential ramifications of some of the serious choices they might make. Children are dependent on others for their survival and that makes them susceptible to coercion. I’m sure if you thought about it you could articulate a couple more for the list as well.

alchemist19 on January 15, 2014 at 3:49 PM

Many of the comments here reflect only a hedonistic desire to live a libertine lifestyle, that not only will destroy families, children, and society, but will eventually destroy themselves.

INC on January 15, 2014 at 3:50 PM

INC on January 15, 2014 at 3:50 PM

Spot on.

kingsjester on January 15, 2014 at 3:55 PM

kingsjester on January 15, 2014 at 3:55 PM

Hey, KJ! Thanks.

Ryan Anderson has been giving testimony, speeches, and writing columns on marriage day after day. He keeps getting better in his summary and explanation.

INC on January 15, 2014 at 4:00 PM

Simple moral disapproval alone is not reason enough for a prohibition. You have to be able to clearly articulate a rational secular purpose.

When it comes to the age of consent, children have been found to lack the cognitive capacity to understand the potential ramifications of some of the serious choices they might make. Children are dependent on others for their survival and that makes them susceptible to coercion. I’m sure if you thought about it you could articulate a couple more for the list as well.

alchemist19 on January 15, 2014 at 3:49 PM

There’s a lot of moralizing in there.

gwelf on January 15, 2014 at 4:03 PM

no one’s yet articulated a rational one for not allowing same-gender marriages.
alchemist19 on January 15, 2014 at 3:25 PM

Here’s the rational reason you’re looking for:

Many of the comments here reflect only a hedonistic desire to live a libertine lifestyle, that not only will destroy families, children, and society, but will eventually destroy themselves.

INC on January 15, 2014 at 3:50 PM

What is the rational reason for sex outside of marriage between one man and one woman?

questionmark on January 15, 2014 at 4:08 PM

No, Alchemist: As part of Utah’s admission to the United States, they were expressly forbidden from ever having plural marriage. And they took great care to make sure that there was no legal way, like amending the state constitution somehow, to get rid of that requirement. So no, it’s not an option.

Besides, there IS no state sovereignty anymore. According to the gays, and the federal courts, nothing a state can do, even enshrine into their state constitution by a 75% vote of the people, has any power at all if the feds decide otherwise.

Honestly, what’s the practical difference right now between Utah as a state and Utah as a territory? What benefits does being a state give us? Whatever the almighty Federal Government says, goes. Do I have any more rights as a citizen of Utah than as a citizen of American Samoa? Does Utah as a state have any power against the Feds that Puerto Rico doesn’t have? Sure, I get to vote for President and Congress. Those votes sure have protected my interests from a raging Fed government, hell bent on shoving gross perversion down our state throat. I get taxed a lot.

Why was Utah so hellbent on becoming a state instead of staying a territory? It’s not like statehood means anything nowadays–the liberals in government in DC rule on high anyway.

Vanceone on January 15, 2014 at 4:11 PM

There’s a lot of moralizing in there.

gwelf on January 15, 2014 at 4:03 PM

I stated a rational, secular purpose and that’s the challenge for any law. The age of consent laws easily clear that hurdle. It’s the prohibition on same-gender marriage that can’t seem to do it.

alchemist19 on January 15, 2014 at 4:14 PM

The men were Christians but the government they set up was secular, and the latter fact is what’s relevant.

alchemist19 on January 15, 2014 at 3:17 PM

Actually, they set up a secular federal government. This still had Washington and Adams announcing national days of prayer and fasting–which even Jefferson was pressured to follow suit, and secularist still to this day quote his reasons for his administration not doing so.

Still, it was mostly secular. Madison disagreed with military chaplains, but oddly enough, not a selfist who thought that he alone could determine the ultimate rational universal theory of law (despite being the chief author of the Constitution), expressly deferred to all the men of his respect who dissented.

Of course, there’s a difference there. National days of prayer, don’t tell you how to pray according to the standards of some sect , but chaplains tend to be of a particular sect, by definition.

Jefferson’s misleading letter notwithstanding, the states were sovereign and many were set up to have a religion that the state recognized. It is clear that the legislature that the people of the several states identified with was their own state legislature, they just wanted to make sure that Congress was restrained to act upon it. It was these legislatures, themselves, that Jefferson argued were the biggest defenders of the rights of the people.

So they set up nonsecular governments and a central government restrained from acting on the behalf of any sect.

Axeman on January 15, 2014 at 4:21 PM

When it comes to the age of consent, children have been found to lack the cognitive capacity to understand the potential ramifications of some of the serious choices they might make.

alchemist19 on January 15, 2014 at 3:49 PM

Bigotry against Children is what I hear there. “Oh, children. They’re all stupid and can’t be trusted.” If you said that about a black man, that would be RACIST!!

Children are dependent on others for their survival and that makes them susceptible to coercion.

And it is that victimized state and the state’s lack of will to address that state that keeps them dependent upon others. Sure, blame the victim!!

I’m sure if you thought about it you could articulate a couple more for the list as well.

I’m sure you could. Racist!!

Axeman on January 15, 2014 at 4:24 PM

No, Alchemist: As part of Utah’s admission to the United States, they were expressly forbidden from ever having plural marriage. And they took great care to make sure that there was no legal way, like amending the state constitution somehow, to get rid of that requirement. So no, it’s not an option.

Hmm, interesting. Like I said, I’m not intimately familiar with the legal aspects of Utah being admitted to the Union so if they did in fact completely surrender that one aspect of their state sovereignty in order to become a state then that’s something they did to themselves, and have no one to blame but themselves. I would like to thank you though; I rarely learn anything in any of the threads on this topic but now it appears I have. It doesn’t really relate to the topic but it’s way better than nothing.

Besides, there IS no state sovereignty anymore. According to the gays, and the federal courts, nothing a state can do, even enshrine into their state constitution by a 75% vote of the people, has any power at all if the feds decide otherwise.

No state has the power to violate the due process and equal protection laws of its citizens and that states agreed to that when they ratified the Fourteenth Amendment. The size of the majority in any state that wants to violate a person’s rights is totally irrelevant, too; if 99% of the state of Georgia voted to enslave all gingers within their borders we would all be (rightly) expecting the feds to step in and protect those ginger’s rights. There’s a big difference between what’s popular and what’s right.

Honestly, what’s the practical difference right now between Utah as a state and Utah as a territory? What benefits does being a state give us? Whatever the almighty Federal Government says, goes. Do I have any more rights as a citizen of Utah than as a citizen of American Samoa? Does Utah as a state have any power against the Feds that Puerto Rico doesn’t have? Sure, I get to vote for President and Congress. Those votes sure have protected my interests from a raging Fed government, hell bent on shoving gross perversion down our state throat. I get taxed a lot.

Why was Utah so hellbent on becoming a state instead of staying a territory? It’s not like statehood means anything nowadays–the liberals in government in DC rule on high anyway.

Vanceone on January 15, 2014 at 4:11 PM

If you think statehood was a mistake then you’re taking up that discussion in the wrong place. If you can’t raise support for dropping statehood in Utah and it’s that important to you then you could always move to Puerto Rico or American Samoa, I guess. I understand the latter has a fairly substantial LDS population and the weather’s generally beautiful!

alchemist19 on January 15, 2014 at 4:34 PM

No, Alchemist: As part of Utah’s admission to the United States, they were expressly forbidden from ever having plural marriage. And they took great care to make sure that there was no legal way, like amending the state constitution somehow, to get rid of that requirement. So no, it’s not an option.

And as I said before, you’re forgetting the pen-and-phone combination! Because polygamy will be such a good, EO-BO will issue and executive order that the US will ignore that clause in Utah’s Constitution.

Axeman on January 15, 2014 at 4:36 PM

Axeman on January 15, 2014 at 4:21 PM

Even if this were all true it’s irrelevant because the actions of the states are still bound by the Supremacy Clause to conform to the federal Constitution. Even if an individual state did set up a state religion they couldn’t use that state religion as a basis to deprive anyone of their Due Process of Equal Protection rights because the Fourteenth Amendment, which the states ratified, limits their ability to do that.

alchemist19 on January 15, 2014 at 4:42 PM

If you think statehood was a mistake then you’re taking up that discussion in the wrong place. If you can’t raise support for dropping statehood in Utah and it’s that important to you then you could always move to Puerto Rico or American Samoa, I guess. I understand the latter has a fairly substantial LDS population and the weather’s generally beautiful!

alchemist19 on January 15, 2014 at 4:34 PM

Again, you exhibit a middling understanding of arguments presented to you. You’re far from stupid, but you have a tendency when faced with something you can’t answer to answer to the particular frame of the argument, rather than on the class of argument.

Axeman on January 15, 2014 at 4:42 PM

Bigotry against Children is what I hear there. “Oh, children. They’re all stupid and can’t be trusted.” If you said that about a black man, that would be RACIST!!

Are you seriously comparing black people to children or did you just feel compelled to say something and this was the best you could come up with?

And it is that victimized state and the state’s lack of will to address that state that keeps them dependent upon others. Sure, blame the victim!!

I would pick this apart with a serious response but I get the distinct impression that due to a lack of anything substantive to say that you’ve resorted to trolling.

I’m sure you could. Racist!!

Axeman on January 15, 2014 at 4:24 PM

This low-level stuff isn’t your normal style so I’m going to assume it’s due to you not having much to go on.

alchemist19 on January 15, 2014 at 4:47 PM

Again, you exhibit a middling understanding of arguments presented to you. You’re far from stupid, but you have a tendency when faced with something you can’t answer to answer to the particular frame of the argument, rather than on the class of argument.

Axeman on January 15, 2014 at 4:42 PM

He was starting to wander off topic into questions of the merits of statehood and I’ve learned from experience not to chase people into the weeds. I wanted to acknowledge I read his point and wasn’t ignoring it but there’s just not a lot I can do with it in the context of the current issue because it doesn’t relate to the current issue at all.

alchemist19 on January 15, 2014 at 4:49 PM

Even if this were all true it’s irrelevant because the actions of the states are still bound by the Supremacy Clause to conform to the federal Constitution. Even if an individual state did set up a state religion they couldn’t use that state religion as a basis to deprive anyone of their Due Process of Equal Protection rights because the Fourteenth Amendment, which the states ratified, limits their ability to do that.

alchemist19 on January 15, 2014 at 4:42 PM

So what? Is that how little you care about accuracy, that you can issue a bland summary like “they set up a secular government” only to revert to the point is now moot, owing to an amendment ~70 years later?

So by “they” you mean the founders and a generation 70 years removed? Pathetic.

Axeman on January 15, 2014 at 4:56 PM

So what? Is that how little you care about accuracy, that you can issue a bland summary like “they set up a secular government” only to revert to the point is now moot, owing to an amendment ~70 years later?

So by “they” you mean the founders and a generation 70 years removed? Pathetic.

Axeman on January 15, 2014 at 4:56 PM

Deep breath…

The Founders set up a secular federal government and that federal government remains secular to this day. While the states may retain their right to set up a state religion they, by virtue of passage and ratification of the Fourteenth Amendment, would not have the ability to govern in accordance with any tenant of that state religion if doing so would violate the protections of that or any other federal amendment. Is that a difficult concept to grasp?

alchemist19 on January 15, 2014 at 5:03 PM

And as always, the black pedophile inadvertently drops the truth.

I’m not here to wade into the insanity of the “sexuality is inborn or not” debate or the “how many gays are there” debates. There are fewer Jews than gay identified people, yet they’ve reached the threshold for protection against discrimination in this country. And being Christian is a choice, yet it is unlawful to discriminate upon the basis of religious faith. So the question of whether people “choose” to be gay or not is immaterial to this discussion.

libfreeordie on January 15, 2014 at 9:41 AM

It shows you how pathetic the curriculum of historically-black colleges is that one of its professors has never read or has any understanding of the First Amendment.

Religious belief is explicitly protected by the Constitution. Your pedophile needs to have sex with little boys is not.

And if you want proof that gay is changeable, here you go:

Prior to meeting Mr. de Blasio, Ms. McCray identified as a lesbian and had several long-term relationships with other women. In a seven-page essay she wrote for the September 1979 issue of Essence magazine entitled “I am a Lesbian” she frankly discussed her sexuality and expressed gratitude that she came to terms with her preference for women before marrying a man.

“I survived the tears, the isolation and the feeling that something was terribly wrong with me for loving another woman” Ms. McCray wrote. “Coming to terms with my life as a lesbian has been easier for me than it has been for many. Since I don’t look or dress like the typical bulldagger, I have a choice as to whether my sexual preference is known.”
She added, “I have also been fortunate because I discovered my preference for women early, before getting locked into a traditional marriage and having children.”

northdallasthirty on January 15, 2014 at 5:13 PM

While defenders of an activist judiciary often assert that an independent appointed judiciary does not hold political views, such claims are specious and are not confirmed by contemporary experience. As Thomas Jefferson long ago observed, it is naive to assume that judges do not have political views on most issues before them:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . and their power the more dangerous as they are in office for life and not responsible – as the other functionaries are – to the elective control.

Recent months have provided numerous examples of the people expressing a clear will on an issue and the judiciary then abrogating that will.

Courtesy: David Barton, wallbuilders.com

kingsjester on January 15, 2014 at 5:19 PM

Deep breath…

The Founders set up a secular federal government and that federal government remains secular to this day. While the states may retain their right to set up a state religion they, by virtue of passage and ratification of the Fourteenth Amendment, would not have the ability to govern in accordance with any tenant of that state religion if doing so would violate the protections of that or any other federal amendment. Is that a difficult concept to grasp?

alchemist19 on January 15, 2014 at 5:03 PM

But according to you, the Fourteenth Amendment DOES give the government the capability to discriminate against people for holding religious beliefs and invalidate any and all votes they take if people in black robes think they acted out of those beliefs.

This is the perversion of “secular” to mean “anti-religious” that creates the fundamental problem in the mentality of bigots like alchemist19. Alchemist19 simply screams that any outcome he doesn’t like is due to “Christian” beliefs and thus is unconstitutional.

This is the primary objection to gay-sex marriage; it is incompatible with the religious liberty and freedom explicitly protected in the First Amendment. Bigots like alchemist19 have made it so. Therefore, it should be opposed until such time as bigots like alchemist19 stop discriminating on the basis of religious beliefs.

northdallasthirty on January 15, 2014 at 5:20 PM

Is alchemist19 still trying to argue that children can’t get married because they’re cognitively impaired?

Perhaps it should educate itself a bit.

The American Association on Mental Retardation defines someone as mentally retarded if they 1) have an IQ below 70-75; 2) are limited in two or more adaptive skill areas (daily living skills needed to live, learn, work, and play in the community); and 3) if the condition is present from childhood (defined as age 18 or younger). An estimated seven million mentally retarded people live in the United States.

Mentally retarded individuals have the same legal rights to marry, drive cars, and own homes as any other American, says Dr. Richard Redding of the University of Virginia’s Institute of Law, Psychiatry, and Public Policy, and they need not pass any competency tests.

In short, children are no more limited than the mentally retarded, and the mentally retarded are allowed to marry.

Therefore, BY LAW and in the name of “equality”, all of alchemist19′s arguments fail the rational basis test that alchemist19 tried to impose.

northdallasthirty on January 15, 2014 at 5:30 PM

IF the supreme court decides to place itself as the ‘the FINAL arbiter of moral values’, what will be left of the constitution to prevent such a court from one day imposing Sharia law?

Freddy on January 15, 2014 at 5:30 PM

BTW, the SLT release an opinion poll in Utah:

Link to picture.

Couples allowed state-issued marriage license: 48 YES – 48 NO
Couples couples have civil unions / domestic partner: 72 YES – 25 NO

Statistic tie for SSM in Utah … wow.

ZachV on January 15, 2014 at 1:42 PM
http://www.sltrib.com/sltrib/news/57391605-78/marriage-sex-percent-state.html.csp

ZachV on January 15, 2014 at 1:43 PM

Don’t you love it when gay-sex marriage bigots try to use majority-rules arguments when they’ve screamed that the majority has no right to rule?

northdallasthirty on January 15, 2014 at 5:33 PM

Deep breath…

Wow, really impressed.

The bulk of the functions of government were not to be run by the diplomatic, mediatory, and military central government, but by the sovereign state governments, as sectarian as the people would permit.

It’s not that I can’t understand the arguments of the pro-authoritarian style of government from the 14th amendment, or the arguments that are possible from the 14th amendment, as much as I can’t understand why you confuse or misrepresent the form of government as it was set up with the government as it was revised.

I have no greater point than that your phrase was pap.

Axeman on January 15, 2014 at 5:38 PM

The Founders set up a secular federal government and that federal government remains secular to this day. While the states may retain their right to set up a state religion they, by virtue of passage and ratification of the Fourteenth Amendment, would not have the ability to govern in accordance with any tenant of that state religion if doing so would violate the protections of that or any other federal amendment. Is that a difficult concept to grasp?

alchemist19 on January 15, 2014 at 5:03 PM

They certainly did not give moral value decisions to any court. Regardless of any individuals definition of ‘moral value’, any court that takes such judgements upon itself will in fact become a ‘religous institution’.

The entire 14 ammendment extension into the ‘moral judgment arena’ is an absurd twisting of words.

Freddy on January 15, 2014 at 5:39 PM

In short, children are no more limited than the mentally retarded, and the mentally retarded are allowed to marry.

Therefore, BY LAW and in the name of “equality”, all of alchemist19′s arguments fail the rational basis test that alchemist19 tried to impose.

northdallasthirty on January 15, 2014 at 5:30 PM

Indeed. After all IQ simply means Intelligence Quotient. You divide it by 100 and that is the percentage that your “mental age” is of your age in years.

Thus an of-age man of IQ 70 has the mentality of a ~14 year old. What are we, hillbillies?!

Axeman on January 15, 2014 at 5:43 PM

According to some of the atheists here “morality” can’t be defined apart from what is or isn’t proscribed by the law.

tommyboy on January 15, 2014 at 2:32 PM

That’s one of the problems with extrapolated atheism. First of all there is nothing in atheism that suggests that a belief in “morality” is appropriate or even rational. Secondly, the context of the constitution, and especially the 14th amendment was around undefinable rights. First of all, to restrain Congress the rights not mentioned in the Constitution were left to the states and its people to argue and resolve. They were open-ended to restrict the federal government.

Then in the 14th amendment, Hudson, followed suit and cited the undefinability of rights as those the federal government would protect under the 14th amendment. And he quoted the heritage of this idea from the people who sought to limit the federal power to affirm or deny rights. Only this time it was the emanations and penumbrae of rights that the federal government would defend the people against states’ incursions.

In fact, Griswold and Row decisions reference the undefinability of rights. Yet, we’ve come to an attenuated expectation of strict rationality in a law that argues rights as some revenant spirit.

What’s that that extrapolative atheists call a belief in things you can’t prove (let alone define)? “Faith”. And faith is irrational. Their confidence that this can ultimately be rationalized down to the most rational of understandable principles notwithstanding.

This leaves them with a requirement to validate their claim that they can steal everything off the table, vacuum the God out of it, and replace it with exact duplicates minus God, and it all will work the same way.

This also leaves us with an inequality as extrapolative atheists in the insistence that everything will make sense once they control everything and diminish your influence (equality?) because they seriously and ardently and honestly think it will! And it is not just faith because they don’t think it is!

Axeman on January 15, 2014 at 5:48 PM

And, yet ND30 you are gay in a committed relationship. And, I am gay but never had a gay relationship.

SC.Charlie on January 15, 2014 at 8:10 AM

Yep.

Amazing how that works, especially given the gays like JetBoy and ZachV who are screaming and rolling on the floor that they can’t have a committed relationship without a marriage certificate.

northdallasthirty on January 15, 2014 at 5:50 PM

I said the state could allow polygamy just like it can allow gay marriage.

alchemist19 on January 15, 2014 at 3:19 PM

And it only took ~6 months for you to admit that polygamy can be put on the same footing as same-sex marriage, despite your adamant insistence that “marriage equality” was only about couples. To the point that you dismissed the expansive pattern of as invalid “slippery slopes”.

That must be a really slippery slope, there!

Axeman on January 15, 2014 at 6:09 PM

And it only took ~6 months for you to admit that polygamy can be put on the same footing as same-sex marriage, despite your adamant insistence that “marriage equality” was only about couples. To the point that you dismissed the expansive pattern of as invalid “slippery slopes”.

That must be a really slippery slope, there!

Axeman on January 15, 2014 at 6:09 PM

In the sense that polygamy could hypothetically be sanctioned by a state. In that sense polygamy and monogamy (heterosexual or homosexual) are on the same footing. That’s not the same as the slippery slope that says “If we do X then we must do Y & Z &…..”

Besides, if I remember my Rick Santorum correctly then before the Lawrence decision was even issued he was claiming that the if the Court ruled against his side and struck down of the sodomy laws that that would be the start of the slippery slope.

“If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.”

Note there’s no mention of gay marriage; he’s talking sodomy laws alone being enough to get us to those others. This was of course after striking down the statutes on interracial marriage was going to put us on the same slippery slope. Honestly we’ve been started down this particular slippery slope to incest and polygamy so many times it’s difficult to remember them all.

The alternate explanation is of course that Santorum is a paranoid idiot with no clue what he was talking about. If he was then it would be a shame if people are still falling for slightly repackaged versions of the same argument now more than a decade later.

alchemist19 on January 15, 2014 at 6:36 PM

Wow, really impressed.

The bulk of the functions of government were not to be run by the diplomatic, mediatory, and military central government, but by the sovereign state governments, as sectarian as the people would permit.

It’s not that I can’t understand the arguments of the pro-authoritarian style of government from the 14th amendment, or the arguments that are possible from the 14th amendment, as much as I can’t understand why you confuse or misrepresent the form of government as it was set up with the government as it was revised.

I have no greater point than that your phrase was pap.

Axeman on January 15, 2014 at 5:38 PM

Even if you’re totally correct about the way the government was set up (and I’m not conceding that point) it’s irrelevant because it’s the revised government under the amended Constitution that we’re living under here today.

I’m standing up for the freedom of individuals having their rights to Due Process and Equal Protection trampled on by, in some cases, tyrannical majorities and I’m the authoritarian?! Up is down, black is white and Odumbo is a great president.

alchemist19 on January 15, 2014 at 6:48 PM

And, yet ND30 you are gay in a committed relationship. And, I am gay but never had a gay relationship.

SC.Charlie on January 15, 2014 at 8:10 AM

I honestly wouldn’t believe one single thing ND says. Not one. But that’s simply my opinion.

JetBoy on January 15, 2014 at 7:37 PM

I’m standing up for the freedom of individuals having their rights to Due Process and Equal Protection trampled on by, in some cases, tyrannical majorities and I’m the authoritarian?! Up is down, black is white and Odumbo is a great president.
alchemist19 on January 15, 2014 at 6:48 PM

But you’re not, since you’ve already stated that people you don’t like due to their being sexually attracted to children, blood relatives, multiple people, objects, and animals should be denied their guaranteed right to state/recognized marriage to the sexual partner(s) of their choice.

Why do you deny these people their rights to Due Process and Equal Protection?

northdallasthirty on January 15, 2014 at 7:42 PM

I honestly wouldn’t believe one single thing ND says. Not one. But that’s simply my opinion.
JetBoy on January 15, 2014 at 7:37 PM

Of course not.

If people ever got the idea that being gay meant you could take responsibity for your own action and choices rather than being a Julia wannabe, there goes the bulk of your racket.

Not to mention that having to admit you use your sexual orientation as an excuse for idiotic behavior would crack your fragile psyche like an egg.

northdallasthirty on January 15, 2014 at 7:46 PM

If it’s so clear, why wasn’t it clear within the first generation after the 14th Amendment was passed?

14th Amendment passed, 1864
Plessy v. Ferguson decision, 1896
Brown v. Board overturns Plessy in 1954.

Because sometimes it takes society a while to catch up.

libfreeordie on January 15, 2014 at 9:41 AM

14th Amendment passed, 1864 — Equal protection under the law

Plessy v. Ferguson, 1896 — “Separate but equal” is an acceptable way to meet the requirement of equal protection

Brown v. Board overturns Plessey in 1954 — “Separate but equal” is separate, but not equal.

If that’s your argument, then you might as well have not bothered. No one ever claimed a new interpretation for the 14th Amendment in Plessy v. Ferguson. They argued that a “separate but equal” law was good enough under the existing understanding of the law. And the only reason that decision was overturned was because the court finally decided that separate but equal wasn’t actually equal.

The interpretation of the 14th Amendment did not change between 1864 and 1954. The only thing that changed was the the question of whether laws passed between those two times were in compliance with the Fourteenth Amendment.

Marriage predates the Fourteenth Amendment, the U.S. Constitution, the U.S. government itself, the British monarchy, the Christian faith, and Judaism.

So exactly how is it that an Amendment to the Constitution passed in 1864 outlaws marriage as it exists for the entire nation, and no one notices it for 130 years?

The answer is obvious. Anyone who suggested that the Fourteenth Amendment required recognizing marriages between men would have been laughed at.

It’s not that it “takes society a while to catch up.” It’s that, “it takes a while to indoctrinate society by appeals to false science.”

There Goes the Neighborhood on January 15, 2014 at 8:13 PM

I honestly wouldn’t believe one single thing ND says. Not one. But that’s simply my opinion.

JetBoy on January 15, 2014 at 7:37 PM

I’m with you on that. I’ve taken to working my way up through the comments so I can see the poster before I start it and if it’s ND30 or blink I don’t even read it.

alchemist19 on January 15, 2014 at 8:14 PM

Well, blink, I think it’s that it makes them (JetBoy and alchemist19) uncomfortable both because it’s something that’s unfamiliar and that has been cast in a negative light for them, and because they don’t like the idea they were wrong about something so rather than really think about their beliefs and consider changing your mind it’s much easier and more comfortable to ignore facts that are contrary to your point.

northdallasthirty on January 16, 2014 at 2:06 AM

I honestly wouldn’t believe one single thing ND says. Not one. But that’s simply my opinion.

JetBoy on January 15, 2014 at 7:37 PM

Nah, we should take the word of a “catholic” sodomite.

Murphy9 on January 16, 2014 at 2:12 AM

I’m standing up for the freedom of individuals having their rights to Due Process and Equal Protection trampled on by, in some cases, tyrannical majorities and I’m the authoritarian?! Up is down, black is white and Odumbo is a great president.

alchemist19 on January 15, 2014 at 6:48 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?

What doctrine do “the people” a definition of “the people” hold? Come on. You must be able to tell me. What indelible concepts are “the people” as definition of a people under self-government, required to maintain?

Isn’t a gay and gay-tolerant majority possible under a certain mix of people? And if it is, the principle of self-government would determine that this majority can enshrine gay marriage within their constitution?

How is championing the process of referendum more authoritarian than championing a certain interpretation of a social compact as a manifesto of rights, when it really is an agreement among states?

Yes, black is white and white is black and up is down and down is up, when you have no appreciation for the dialog or opinions with others. If that’s the type of simplistic framework you need to place it in, by all means wallow in your doctrinaire and elitist view.

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 it was Chief Justice Taney that pronounced that the intent of the Constitution was never to consider Africans equal to Europeans and the people of Illinois had no right (pre-14th amendment) to perform a taking of a citizen of Missouri’s property (i.e. someone else) under the 5th amendment and had to invent substantive due process (the proceedings of a court) as opposed to traditional due process (the regulated and codified process by which all similar laws were made), and so by the sophistry of an argument from silence –and in the face of that there had been free men of African descent from the founding of the country, deemed that citizens (again, pre-14th-amendment) had no right to construct their constitution in a way that could be argued to be overruled (by such as an argument from silence) by a judge. And as such, it was the interpretation that slavery was made legal in all states.

And again, it was the jealous regard of the people for self-government, by which their elected representatives and their voluntary self-sacrifice to invade a properly seceded (by some arguments) body of states to end slavery in the re-unified union. You can argue all you want that the racists whites didn’t really clap for tinker-bell in the full equality of African descendants, 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.

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?)

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.

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”.

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!

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?

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

ND isn’t a bigoted hypocrite like you, JetBoy. Aren’t you ashamed to be so dishonest intellectually? – blink on January 16, 2014 at 1:55 AM

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

As I say, these gay threads are just plain damn repetitive.

SC.Charlie on January 16, 2014 at 6:36 AM

As I say, these gay threads are just plain damn repetitive.

SC.Charlie on January 16, 2014 at 6:36 AM

So say something new.

I tried. I pointed out expanding what constitutes marriage in terms of government preferences increases the discrimination against single people to no rational purpose, and it increases the number of voters with a stake in preventing the elimination of that discrimination, but the only response I got was a dismissive “Thank you.”

It seems almost everyone (with a few notable exceptions) wants to keep arguing the talking points rather than seeking to look at what lies beneath.

So ‘repetitive’ it is.

fadetogray on January 16, 2014 at 7:04 AM

Yeah, SC. Charlie. Try saying that you support equality. – blink on January 16, 2014 at 8:10 AM

And, you will say that that there is nothing wrong with being actively gay, right? ………….. now why are we even having this discourse? I am not going to change your mind and I am not going to change yours. You just want an unhinged verbal fight.

SC.Charlie on January 16, 2014 at 8:46 AM

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

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

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.

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.

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!

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.

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?

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

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