This is why the Constitution Might be Amended to ban Gay Marriage

[Meadmaker]

This is just not the case. The landmark civil union law in Vermont was legislative. It was prompted by a Supreme Court decision, but the decision did not specify how equal protection should be implemented, and left the mechanism up to the legislature. Civil Union was an entirely legislative invention.

I stand corrected, partially. The court directed the legislature to act. This is something that simply could not have happened in Europe, unless I don't understand their system.

 

[Meadmaker]

What I don't get is why some people believe the legalization of gay marriage will lead to the legalization of polygamis and/or incenstious marriages?

No one believes that. What some of us believe is that if you read the court rulings that have described the right to gay marriage and/or the simpler right to homosexual activity, there is no logical reason to say that the same right would not apply to incestuous marriages and/or activity.

No one expects that any court will discover a right to incestuous marriage, and that is precisely the point. The only thing that distinguishes the case for homosexual marriage from incestuous marriage is that there is no political will to allow incestuous marriages. However, courts aren't really supposed to consider that in their rulings. It's a way of pointing out that the rulings demanding homosexual marriage are what could reasonably be described as "activist" rulings. There exists a political will to create those marriages, and they did. There is no political will to create incestuous marriage, so it doesn't happen.

 

[Lonewulf]

....did Skeptic always make such irrationally stupid arguments, or is this some kind of new development?

 

[Fiona]

You asked if the legislature wrote the constitution, and the answer is, sort of. The process of ammending the Constitution is much, much, harder than the process of passing a new statute.

Yes, I know that. It was intended to be so, I believe.

The important difference, I think, is that in Europe, a judge makes a ruling that says, "the law says this".

OK.

Suppose the legislature is pretty sure the judge got it wrong,

The first redress would not involve the legislature because if the decision is wrong it can be appealed as perverse or on a point of law: as I outlined above

or that, perhaps he got it right, but they really didn't want the law to be whatever the judge said it was. What would they do? They would pass a new law that said, "No, really. This is what we meant." In America, that can't happen.

This is the heart of it. In this country you are correct: parliament could indeed change the law. In your country, for most matters, your legislature (state or federal) could do the same. However if the law in question is what the constitution says, then the legislature has a harder process to go through in order to change it. It is not different in kind, so far as I can see. But it is more difficult: and that is how it is supposed to be because your constitutional rights are held to be more fundamental than any legal right in this country. It is my impression that it is deliberately difficult to change the constitution because that is the basis of your freedoms; and they are not to be tampered with lightly or for fashion or temporary political advantage. If I am wrong about that then please disabuse me.

I have said before that this is something about the american system which I admire: and I have been surprised several times because americans do not seem to prize it. Our recent incorporation of european human rights legislation goes some way towards what you already have: I am pleased by this (and ed knows I am not generally in favour of the americanisation of this country: with absolutely no disrespect intended). But all systems do have drawbacks and for you this is one. It is not judge made law, however. Can you see the distinction or have I missed something vital ?

As to your last point: the question makes no sense as phrased because the system is not the same in every country: for example France has a codified legal system rather than one based on common law as yours and mine is very largely: I do not know how to change a French law but their system is very very different

 

[Alt+F4]

No one believes that. What some of us believe is that if you read the court rulings that have described the right to gay marriage and/or the simpler right to homosexual activity, there is no logical reason to say that the same right would not apply to incestuous marriages and/or activity.

Unfortunately, some people do believe it.

The "they banned interracial marriage and that was wrong so banning gay marriage is wrong" argument is no argument -- you can use it just as well to discover a "right" to polygamy or incest being recognized as marriage as you can for gay marriage.

http://www.internationalskeptics.com/forums/showthread.php?p=4669555#post4669555

The leap from "equal protection of the law" to "gay marriage must be recognized" is a rather large one. The same argument, you would notice, would mean that EVERYBODY'S union with EVERYBODY must be reognized as "marriage" -- including, say, homosexual incestual polygamy.

http://www.internationalskeptics.com/forums/showthread.php?p=4667854#post4667854

Why NOT recognize polygamous incest as marriage? Certainly the same -- indeed, the exact same -- arguments apply to recognize it as to recognize gay marriage.

http://www.internationalskeptics.com/forums/showthread.php?p=4666139#post4666139

 

[bruto]

I stand corrected, partially. The court directed the legislature to act. This is something that simply could not have happened in Europe, unless I don't understand their system.

Thank you, but for the other part, do please research the Connecticut civil union law. I am pretty sure I recall that there was no court case at all on that one, and that it was hailed as a landmark for that reason.

As for Vermont, the court directed the legislature to remedy the inequality, so in a realistic sense, the issue was judicially driven, but in theory, at least, this could have been done through a series of individual provisions, through other partnership arrangements that were not tied directly to sexual partnerships (proposed by the most vehement anti-gay faction later as a way to remove from civil unions the implication of normalizing homosexuality), or even by abolishing the protections granted by civil marriage. In any case, arguing not against you but against Skeptic, the court certainly did not discover a right to gay marriage lurking in the constitution, and never has done.

 

[Meadmaker]

Unfortunately, some people do believe it.

I'll let Skeptic correct me if I'm wrong, but I think that's a misreading of what he is saying. He doesn't appear to be saying that a court will recognize a right to incestuous marriage. He is saying, as am I, that a failure to do so by the courts is logically inconsistent, because all of the arguments that apply to homosexual marriage also apply to incestuous marriage. There is only one exception. The vast majority of us think that people who want to marry their sisters are weird, icky, people. That is no longer true of homosexuals.

 

[Meadmaker]

It is my impression that it is deliberately difficult to change the constitution because that is the basis of your freedoms; and they are not to be tampered with lightly or for fashion or temporary political advantage. If I am wrong about that then please disabuse me.

You are not wrong. In fact, you've hit the nail on the head. However, many of us feel that while the legislature cannot tamper lightly with the Constitution, there is no such check on the judicial branch.

The concept of "equal protection" is so broadly applied than it could apply to any perceived injustice, of any sort. The equal protection clause has been widely cited as the key to the elimination of many injustices. Don't forget, though, it was also cited in Bush v. Gore.

 

[AWPrime]

I'll let Skeptic correct me if I'm wrong, but I think that's a misreading of what he is saying. He doesn't appear to be saying that a court will recognize a right to incestuous marriage. He is saying, as am I, that a failure to do so by the courts is logically inconsistent, because all of the arguments that apply to homosexual marriage also apply to incestuous marriage.

Such as?

 

[Meadmaker]

Such as?

All of them.

 

[AWPrime]

All of them.

Dodging much?

 

[Meadmaker]

Dodging much?

No. All of them. Really. They're in this thread and many others. Strike out "same sex" or any synonym, and put in "incestuous", and the arguments make exactly the same amount of sense.

 

[Rasmus]

No. All of them. Really. They're in this thread and many others. Strike out "same sex" or any synonym, and put in "incestuous", and the arguments make exactly the same amount of sense.

most civilised stated recognize the equality of the sexes, i.e. they make laws and practices illegal that discriminate based on gender. (Same as with race, religion, etc.)

If a law allows a man to marry a woman, it must allow a woman to marry a woman.

You can reasonably argue that a law that only allows a person to marry someone of the opposite gender is fair and does not discriminate based on gender.

And you would be right, as long as you don't see a problem with a law that only allows a person to marry someone of, say, the same race or the same religion.

I am not aware of any place that has laws that make discrimination on the basis of "number of people" illegal, hence this argument simply does not work for polygamous relationships.

I am also not aware of any place that has laws that make discrimination on the basis of "biological affinity" illegal, hence this argument does not work for incesteous relationships. (In fact, there could be no laws against incest in such a place to begin with.)

 

[AWPrime]

No. All of them. Really. They're in this thread and many others. Strike out "same sex" or any synonym, and put in "incestuous", and the arguments make exactly the same amount of sense.

Then do so. I will await a post from you in which each one is rewritten.

 

[bruto]

No. All of them. Really. They're in this thread and many others. Strike out "same sex" or any synonym, and put in "incestuous", and the arguments make exactly the same amount of sense.

I still think you have the cart before the horse here. Your argument makes logical sense, in that if you make any action that is currently illegal legal, then it follows that laws now existing that distinguish between legal and illegal actions would have to be changed. That does not, by itself, mean that changing the law to reflect what is legal will somehow eventually result in the legalization of everything. Any time you change a law like this, an alarmist can strike out some synonym, and replace it with another. That argument can always be applied against the changing of any restriction. Then again, if at some point in the future social standards and underlying laws did change, and incest became as legal and acceptable in the society at large as homosexuality has become now, or as racial mixing before that, then why would it not be logical and correct for marriage laws to change accordingly?

You can lament the decline in society, and the erosion of old standards if you wish, but the problem here is not in how the law works, but in how you view the evolution of our culture. There will always be people who lament the loss of blue laws, poll taxes, sunset towns, anti-birth control laws, exclusive communities, and a whole slew of other once-legal practices that have withered away as our society evolved. It would be a sorry time indeed if our constitutions and our laws were not designed to allow our laws to evolve along with our society.

 

[Meadmaker]

most civilised stated recognize the equality of the sexes, i.e. they make laws and practices illegal that discriminate based on gender. (Same as with race, religion, etc.)

I know of at least one, although one could argue about "civilised". In the United States of America, it is permissible for the law to discriminate based on gender. (Example: Laws related to women in combat.)

I am not aware of any place that has laws that make discrimination on the basis of "number of people" illegal, hence this argument simply does not work for polygamous relationships.

While other people have applied my argument to polygamy, I haven't, (ETA: lately) and I don't think it works. There's a reason I limit my argument to incestuous relationships.

I am also not aware of any place that has laws that make discrimination on the basis of "biological affinity" illegal, hence this argument does not work for incesteous relationships. (In fact, there could be no laws against incest in such a place to begin with.)

There is nothing in the US Constitution, or the constitutions of most states, that prohibit discrimination based on either biological sex or sexual orientation. All such laws are restricted in their application, such as a prohibition on hiring preferences based on sexual orientation.

On the other hand, there is a statement in the Constitution that all citizens are entitled to equal protection of the law. A law that allows you to marry my sister but prevents me from marrying my sister treats you and me differently. Therefore, it is unconstitutional. At least, that seems to be the reasoning applied.

Just to avoid confusion, I want to make my personal position clear. I believe there should be no laws prohibiting incestuous relations. Indeed, I believe that such laws should be considered unconstitutional, using exactly the same reasoning as applied in Lawrence v. Texas. I do not believe that there is a constitutional right to incestuous marriages. For emphasis: sexual relations, yes. Marriage, no. Your milage may vary.

 

[Alt+F4]

...all of the arguments that apply to homosexual marriage also apply to incestuous marriage.

Don't you think the government has a compelling interest in preventing incestuous marriage that it doesn't have in preventing homosexual marriage?

The two acts are not equal. Establishing true consent would be harder in an incestuous marriage between a parent and child considering family dynamics, age differences and psychological issues.

 

[Meadmaker]

Don't you think the government has a compelling interest in preventing incestuous marriage that it doesn't have in preventing homosexual marriage?

No.

The two acts are not equal. Establishing true consent would be harder in an incestuous marriage between a parent and child considering family dynamics, age differences and psychological issues.

As an adult in full possession of my mental faculties, I would prefer that the government not take it upon itself to decide whether my consent happens to be "true".

 

[Alt+F4]

As an adult in full possession of my mental faculties, I would prefer that the government not take it upon itself to decide whether my consent happens to be "true".

You may very well be an adult in full possession of your mental faculties but could the same assumption be made in an 18 year-old girl marrying her 50 year-old father?

I've always been curious as to why the issue of incestious marriage has become related to gay marriage. What makes people think that gay marriage will lead to incestious marriage when that hasn't been the case with straight marriage, which has been around for thousands of year?

 

[Meadmaker]

You may very well be an adult in full possession of your mental faculties but could the same assumption be made in an 18 year-old girl marrying her 50 year-old father?

Yes. That assumption may or may not be true. It may or may not be true in any contractual situation, or in any sexual situation. I've seen marriages of 20 year old women and forty year old men and I generally shake my head and say that someone will regret that someday, but it's not my place to make that decision. The point of recognizing adulthood is that it confers the right to grant consent.

And keep in mind what I am saying. I think it is perfectly reasonable for the legislature to decide that incestuous marriages will not be recognized by the state. I do not think the constitution grants a right to incestuous marriage. However, if I try to apply the equal protection clause to overturning statutes that refuse to recognize one sort of marriage, I can't see any reason why the equal protection clause confers a right for a man to marry a man, and have that marriage recognzied by the state, but does not confer a right for a man to marry his brother.

What makes people think that gay marriage will lead to incestious marriage when that hasn't been the case with straight marriage, which has been around for thousands of year?

Asked and answered. Post 282