California Judge rules Same-Sex Marriage Ban to be Unconstitutional


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Since I'm seeing many of the same tangents and arguments in this thread, I thought it appropriate to post this transcript of the Boies/Tam exchange. Some would say this is comedy gold.

-----

Testimony as given in U.S. District Court on January 21, 2010
Prop 8 Trial
http://www.law.com/jsp/article.jsp?id=1202439392089&Boies_Lands_Verbal_ Punches_on_Ballot_Measure_Backer_During_Proposition__Trial

DAVID BOIES, PLAINTIFFS’ ATTORNEY:
Now, do you believe that homosexuals are 12 times more likely to molest
children? Do you believe that?

HAK-SHING WILLIAM TAM, OFFICIAL PROPONENT OF PROPOSITION 8:
Yeah, based on the different literature that I've read.

BOIES:
Oh. And what literature have you read, sir, that says that?

TAM:
Uhm, I've read what is posted here.

BOIES:
And what is it? Tell me what it is that you read.

TAM:
I don't remember now.

BOIES:
Who -- who authored it?

TAM:
Some from…apparently…academic papers.

BOIES:
What academic papers, sir?

TAM:
I don't remember.

BOIES:
Well, do you remember any of them?

TAM:
No.

BOIES:
Was it in a -- a journal, or was it in a book that you read?

TAM:
Some could be news. Some could be from journals.

BOIES:
It could be. I'm not asking you what it could be. You told me you'd read
something that said that homosexuals were 12 times more likely to molest
children. You told me that, right?

TAM:
Yes.

BOIES:
Okay. Now, I'm asking you what you read. Was it a book?

TAM:
I don't remember.

BOIES:
Was it an article?

TAM:
I don't remember.

BOIES:
Who wrote it?

TAM:
I don't know.

BOIES:
Okay, sir. Let me ask you to turn, next, to Plaintiffs' Exhibit 513.

TAM:
Okay.

BOIES:
And this is something that you wrote during the campaign for Proposition
8. Correct, sir?

TAM:
Yes.

BOIES:
And the heading is, "What If We Lose," correct?

TAM:
Yes.

BOIES:
And what you meant was, what if we lose Proposition 8, correct?

TAM:
Yes.

BOIES:
And you say that: "If Proposition 8 does not pass, they," whoever that is,
"will lose no time pushing the gay agenda." Do you see that?

TAM:
Yes.

BOIES:
And you say: "The San Francisco city government is under the rule of
homosexuals." Do you see that?

TAM:
Yes.

BOIES:
Did you believe that, sir?

TAM:
Yes, I believed that.

BOIES:
Who are the homosexuals that San Francisco is under the rule of?

TAM:
Uhm, at that time, supervisor Tom Ammiano was a supervisor there.

BOIES:
And there was also a mayor, right?

TAM:
Yes.

BOIES:
The mayor was a homosexual, was he, according to you?

TAM:
I don't think so.

BOIES:
You don't think so? No, I don't think so either, actually. So if you knew
the mayor wasn't homosexual, why are you telling people in part of the
Proposition 8 campaign that San Francisco is under the rule of
homosexuals?

TAM:
Uhm, well, you see, Mayor Newsom passed out the same-sex marriage licenses
in 2004. And if he is not a friend of them, why would he do that?

BOIES:
When you say that San Francisco was under the rule of homosexuals, did you
mean San Francisco was under the rule of heterosexuals that were friends
of homosexuals? Is that what you meant?

TAM:
Could be.

BOIES:
Could be.

TAM:
Yeah, you know, I'm not a lawyer. I don't write things so specifically,
you know--that well-defined.

BOIES:
Okay.

TAM:
Now you're trying to use your legal arguments to pinpoint me in something
that I said that -- that is sometimes I think it's beyond my original
intent.

BOIES:
Well, let's see, as we go through this, how you use words. You go on to
say that: "After legalizing same-sex marriages they want to legalize
prostitution." Do you see that?

TAM:
Yes.

BOIES:
Did you think the people who were opposing Proposition 8 wanted to
legalize prostitution?

TAM:
Uhm, that was a Proposition K at that time, on the San Francisco ballot.
And I saw several homosexual politicians, they supported that. So I draw
from that-–from their support--that they want to legalize prostitution.

BOIES:
But that didn't have anything to do with Proposition 8; did it, sir?

TAM:
No.

BOIES:
No, it didn't. And you knew that at the time, didn't you? You knew that
Proposition K was entirely separate from Proposition 8?

TAM:
Yeah.

BOIES:
And didn't have anything to do with one another, right?

TAM:
Right.

BOIES:
You knew that?

TAM:
Right.

BOIES:
But, nevertheless, you said: "After legalizing same-sex marriage, they
want to legalize prostitution." That's what you wrote here, right?

TAM:
Yes.

BOIES:
You then go on to say: "What will be next? On their agenda list is
legalizing having sex with children." Do you see that?

TAM:
Uh-huh.

BOIES:
And that's what you told people to try to convince them to vote yes on
Proposition 8, correct?

TAM:
Yes.

Sovereign Court RPG Superstar 2009 Top 32, 2010 Top 8

Xpltvdeleted wrote:
Chris Mortika wrote:
What's to stop them? Federal statutes and rulings prohibiting racial discrimination.
And that is another problem...we have laws preventing racial discrimination, but the laws we have on the books regarding gays encourage discrimination (DOMA).

As they do multiple wives, or husbands. However, they do not discourage one person (the smallest minority) from having a recognized marital contract with the person of their choice, subject to the laws of the state in question.

Xpltvdeleted wrote:
Chris Mortika wrote:
There are likely good reasons to invalidate Proposition 8. But "we don't want a majority to limit people's actions" is a bogus reason. Majorities limit actions all the time, and we're generally fine with that.
The US was established as a representative republic in order to prevent a situation where a simple majority vote could be used to trample on the rights of a minority.

Yup, and that republic has said that there is 'no substancial federal question' about if a state can define marriage. Thus the default is that a state can. (Baker v. Nelson)

Chris Mortika wrote:
The majority believes that I should not be allowed to exercise my right to own Canadian slaves, despite the explicit permissions in Leviticus 25:44.
Xpltvdeleted wrote:
Good thing we aren't a theocracy, huh? Slavery (if it is viewed as right) is not allowed because it is limiting or removing the rights of another. The only time rights should be sacrificied is if they infringe upon the rights of another.

Nope, we do it all the time. I can't drive 70 miles on a highway marked 65, even if there are no other people around. My 14 year old goddaughter can get an abortion w/o parental consent, but can't get her ears pierced. An 18 year old can't buy alcohol.

Chris Mortika wrote:
The majority of voters believes I should not be allowed to exercise my "right" to have sex with my (hypothetical) 7-year-old daughter. (She's not of the age of majority to consent, so I, as her parent, would obligingly consent for her.)
Xpltvdeleted wrote:
Yet another attempt to draw a comparison between homosexuality and pedophelia (and incest, all in one line), you can do better Chris.

Yet another attempt to dodge the issue. Again, we allow minors to make decisions all the time (see the abortion above) so it is a valid question.

Xpltvdeleted wrote:
Chris Mortika wrote:
Calling an action a "right" presupposes the argument, implying that it should be legal. I'll give you the benefit of the doubt and say that you know that's what you're doing, Ryan. It's sleazy rhetoric, and you can do better.
My wife was able to marry the person she loves, yet her sister cannot. Why? Because the state has said that, even though she is a consenting adult, she cannot enter into a contract with another consenting adult. I do not feel it sleazy to say that...

Wrong. Your sister in law can enter into a contract with another consenting adult. The Government won't recognize the contract under marriage. There's a difference. I know a couple (hah!) polyamourous groups who have been stable longer than both of my marriages. They have taken various legal methods that are recognized to protect their interests. I held my partner's POA. That was a 'contract with a consenting adult'.


I_Use_Ref_Discretion wrote:
Since I'm seeing many of the same tangents and arguments in this thread, I thought it appropriate to post this transcript of the Boies/Tam exchange. Some would say this is comedy gold.

Pretty funny stuff, though I fail to see what one person's opinion has to do with a law passed by millions of voters, many with very different reasons.

Are we to judge the legitimacy of every law based on the dumbest voter that voted for it?

Sovereign Court RPG Superstar 2009 Top 32, 2010 Top 8

bugleyman wrote:
Nor does the fact that some standards should exist mean that the standard of heterosexual only marriages should exist. Does not compute.

but it's not the place of a judge to change the definition when the people (and the higher courts) have said they reserve that right.


Regarding the Boies/Tam exchange: Allow me to relate a personal anecdote.

I was standing out in front of the courthouse* last week when the Prop 8 ruling was released. I glanced around; nearby, two men kissed. The next thing I knew, I woke up in bed having sex with a guy! Only I'm pretty sure he was actually a kid; not that that would have made a difference. As soon as I was done, I did some drugs, burned a flag, and wiped my ass with the Constitution. Now I spend my days plotting the downfall of All that is Good and Holy(tm).

Learn from my mistake:DON'T CATCH THE GHEY!

* Not really


Chris Mortika wrote:

But "we don't want a majority to limit people's actions" is a bogus reason.

The majority believes that I should not be allowed to exercise my right to own Canadian slaves, despite the explicit permissions in Leviticus 25:44. The majority of voters believes I should not be allowed to exercise my "right" to have sex with my (hypothetical) 7-year-old daughter. (She's not of the age of majority to consent, so I, as her parent, would obligingly consent for her.)

Hi, Chris. To give a proper reply to that, I could hardly do better than to repeat Bitter Thorn's favorite quote:

Thomas Jefferson wrote:
"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others."

The reason you can't do the things you mentioned is because they infringe on the "equal rights of others," NOT because "the majority said you can't." There is nothing at all "bogus" about preventing Mills' "Tyranny of the Majority" -- it's one of the fundamental philosophical foundations of the U.S. government.

Chris Mortika wrote:
Majorities limit actions all the time, and we're generally fine with that.

If majoroties limit actions that do not infringe on the rights of others, that is an abridgement of personal liberty, and we should NOT be "fine" with that! The fact that many people are is an indication that those people care little for rightful liberty, despite what lip service they may choose to give it as an ideal.


Matthew Morris wrote:
bugleyman wrote:
Nor does the fact that some standards should exist mean that the standard of heterosexual only marriages should exist. Does not compute.
but it's not the place of a judge to change the definition when the people (and the higher courts) have said they reserve that right.

The people no doubt also reserved the right to have slaves. The majority does not have the power to violate the rights of the minority.


As to the child issue, though it is pretty off topic, I would point out that the distinction of adulthood is a cultural issue. Some cultures view a person is adult when they reach puberty (does anyone know how biologists define when an animal is an "adult"?). Recent studies show that girls are reaching puberty at younger ages, maybe as young as 7 years old. Thus our culture's decision to treat those girls as children and not adults is a cultural decision (a good one in my opinion). But we are deciding our cultural view is superior to others (a view in this case that I agree with). So the claim that we shouldn't use our own cultural opinion on issues, we should never allow the majority to dominate the minority's view is certainly not absolute, nor should it be.


pres man wrote:
Pretty funny stuff, though I fail to see what one person's opinion has to do with a law passed by millions of voters, many with very different reasons.

Probably not much to do with it, frankly.

A better question is: who actually believes that it's acceptable that millions of voters who vote for anything makes something right?

If a majority of persons (however slim) voted to eliminate the rights of women (19th Amendment) or of blacks (13th Amendment) or of all citizens (26th Amendment) - would that make it right?


I_Use_Ref_Discretion wrote:
pres man wrote:
Pretty funny stuff, though I fail to see what one person's opinion has to do with a law passed by millions of voters, many with very different reasons.

Probably not much to do with it, frankly.

A better question is: who actually believes that it's acceptable that millions of voters who vote for anything makes something right?

If a majority of persons (however slim) voted to eliminate the rights of women (19th Amendment) or of blacks (13th Amendment) or of all citizens (26th Amendment) - would that make it right?

Right? Do you mean morally correct or legal?

And overturning amendments would require much larger than just a majority.

It requires (this is just from memory so it is probably not totally correct), 2/3 of both houses of congress and something like 2/3 of the states.

The Exchange RPG Superstar 2010 Top 16

Chris Mortika wrote:


The majority believes that I should not be allowed to exercise my right to own Canadian slaves, despite the explicit permissions in Leviticus 25:44.
Xpltvdeleted wrote:
Good thing we aren't a theocracy, huh? Slavery (if it is viewed as right) is not allowed because it is limiting or removing the rights of another. The only time rights should be sacrificied is if they infringe upon the rights of another.

I disagree. We restrict the rights of non-citizens all the time. We don't allow them to vote, for example, or hold Federal office. The reason we don't allow people to exrcise their right to own foreigners as slaves is that the majority has voted that way.

Chris Mortika wrote:
The majority of voters believes I should not be allowed to exercise my "right" to have sex with my (hypothetical) 7-year-old daughter. (She's not of the age of majority to consent, so I, as her parent, would obligingly consent for her.)
Xpltvdeleted wrote:

Yet another attempt to draw a comparison between homosexuality and pedophelia (and incest, all in one line), you can do better Chris.

Ryan, I would note, for the record, that I have kept my personal opinion on same-sex marriages entirely opaque. I'm discussing the terms of discourse here, not the merits of the case itself, nor the underlying moral issues.

I chose the illustration I did precisely because it was an analogous situation (involving coupling) that admits very little debate about its merits. We all know incest with minors is wrong.

It would have been less effectual for me to talk about, say, polyamory. I could talk about the majority voting to outlaw polygamy, and then have someone pipe up, "Well, that kind of oppression is wrong, too." Which would have diverted me away from the point.

I'm not linking same-sex marriage with underage incest on the merits of the issues. I'm saying that the argument "the majority should be allowed to restrict people's actions" is vacuous, because they do that every time they vote. and I'm using an example where the moral responsibility to do so is unquestionable.


pres man wrote:
Right? Do you mean morally correct or legal?

Morally. I would yield that legally, as long as something followed the letter and spirit of the law, it would be legal.

Quote:

And overturning amendments would require much larger than just a majority.

It requires (this is just from memory so it is probably not totally correct), 2/3 of both houses of congress and something like 2/3 of the states.

You're right, it's a very *very* difficult process to pass an amendment. There's a reason for that.

But if one were to attempt to eliminate the rights of women or blacks via this method, would it make it morally right?


Kirth Gersen wrote:
Lemme repeat Bitter Thorn's favorite quote in response to that:
Thomas Jefferson wrote:
"Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others."

Thanks for posting that in Bitter Thorn's stead...always a good point to keep in mind.

The Exchange RPG Superstar 2010 Top 16

Chris Mortika wrote:
Majorities limit actions all the time, and we're generally fine with that.
Kirth Gersen wrote:
[If majoroties limit actions that do not infringe on the rights of others, that is an abridgement of personal liberty, and we should NOT be "fine" with that! The fact that many people are is an indication that those people care little for rightful liberty, despite what lip service they may choose to give it as an ideal.

That's a defensible position, Kirth. It would allow you to give heroin to kids, set your house on fire, and own ground-to-air missiles. Moreover, it would allow your strung-out paranoid right-wing neighbors to do the same.


Chris Mortika wrote:
I'm saying that the argument "the majority should be allowed to restrict people's actions" is vacuous, because they do that every time they vote.

And if that restriction preserves the equal rights of others, then it supports rightful liberty, and is therefore appropriate. But if that restriction merely restricts, and does not protect, any rights of man, then it is an offense against rightful liberty, and should be opposed on that basis.


Chris Mortika wrote:
Chris Mortika wrote:
Majorities limit actions all the time, and we're generally fine with that.
Kirth Gersen wrote:
[If majoroties limit actions that do not infringe on the rights of others, that is an abridgement of personal liberty, and we should NOT be "fine" with that! The fact that many people are is an indication that those people care little for rightful liberty, despite what lip service they may choose to give it as an ideal.
That's a defensible position, Kirth. It would allow you to give heroin to kids, set your house on fire, and own ground-to-air missiles. Moreover, it would allow your strung-out paranoid right-wing neighbors to do the same.

Clearly, the examples you cite include violations of the rights of others, and are therefore appropriate limitations (although someone who takes reasonable precautions should probably be allowed to burn his or her own house down, if desired). Gay marriage, however, does not violate the rights of others, and therefore society has no grounds for restriction.

Pretty simple, really.


Chris Mortika wrote:

It would allow you to

1. give heroin to kids,
2. set your house on fire, and
3. own ground-to-air missiles.

1. Thus restricting their ability to function independently of it? Slavery is the ultimate restriction of personal liberty, and hence rightfully illegal.

2. If (aqnd only if) no one else (nor their property) is inside, and if (and only if) I can prevent the fire from spreading and endangering others, then yes, I should be able to do so.

3. Missiles with a large blast radius affecting others, and hence an abridgment of their liberty by way of killing them. Even if I guarantee no one is present, I'm destroying real estate -- the property of others. No go.

Read the quote again: "rightful liberty" is not total freedom of action. It's freedom of action that does not inhibit the equal rights of others.

The Exchange RPG Superstar 2010 Top 16

bugleyman wrote:
Clearly, the examples you cite include violations of the rights of others, and are therefore appropriate limitations (although someone who takes reasonable precautions should probably be allowed to burn his or her own house down, if desired). Gay marraige does not meet this standard, and therefore abridgement of that liberty should be opposed. Pretty simple, really.

I was trying to choose "victimless crimes". Whose rightful liberties are violated by my owning military ordnance? I would imagine that, if some peacable Americans who lived in the flight paths of the planes which

And Kirth, I'm not injecting kids with heroin. I'm simply giving them the drug, perhaps with instructions as to how one should use it most safely. If anything, I'm incresing their options and expancing their liberties.

But I see your position, that reasonable restrictions on liberties exist.

Just out of curiosity, do you be lieve that two siblings ought to be allowed to marry?


Chris Mortika wrote:


I was trying to choose "victimless crimes".

You failed.

Chris Mortika wrote:


Whose rightful liberties are violated by my owning military ordnance?

How about the rights of the people upon whom you may use the ordnance? :P

And no, the fact that you might not use it doesn't matter. Pointing a loaded gun at someone is assault.


Chris Mortika wrote:
Whose rightful liberties are violated by my owning military ordnance?

See above. Military ordnance with a blast radius encompassing others, or the property of others, is an abridgement of their rights, victimizing them. If your missile had a blast radius of like ten feet, and also pinpoint accuracy, then and only then could you reasonably expect to confine the effects to your own property.


Incidentally, there are much better choices of victimless crimes. Prostitution. Plural marraiges between consenting adults. Drug use. All of which should be legal.*

* Hint: These are reasonable topics for debate, whereas "my neighbors should be able to own nuclear weapons" isn't.


bugleyman wrote:
Chris Mortika wrote:


I was trying to choose "victimless crimes".

You failed.

Chris Mortika wrote:


Whose rightful liberties are violated by my owning military ordnance?

How about the rights of the people upon whom you may use the ordnance? :P

And no, the fact that you might not use it doesn't matter. Pointing a loaded gun at someone is assault.

But having a loaded gun locked in a safe in your home is not assault.


bugleyman wrote:
Drug use.

So then how is giving drugs to kids not a victimless crime? They don't have to use it if they don't choose, nor do they have to accept it.

RPG Superstar 2009 Top 32

pres man wrote:
bugleyman wrote:
Chris Mortika wrote:


I was trying to choose "victimless crimes".

You failed.

Chris Mortika wrote:


Whose rightful liberties are violated by my owning military ordnance?

How about the rights of the people upon whom you may use the ordnance? :P

And no, the fact that you might not use it doesn't matter. Pointing a loaded gun at someone is assault.

But having a loaded gun locked in a safe in your home is not assault.

Keeping the weapon loaded is not assault. It is not a good idea, but it should not be illegal.

The Exchange RPG Superstar 2010 Top 16

Chris Mortika wrote:
bugleyman wrote:
Clearly, the examples you cite include violations of the rights of others, and are therefore appropriate limitations (although someone who takes reasonable precautions should probably be allowed to burn his or her own house down, if desired). Gay marraige does not meet this standard, and therefore abridgement of that liberty should be opposed. Pretty simple, really.

I was trying to choose "victimless crimes". Whose rightful liberties are violated by my owning military ordnance? This, in contrast to civilian firearms?

And Kirth, I'm not injecting kids with heroin. I'm simply giving them the drug, perhaps with instructions as to how one should use it most safely. If anything, I'm incresing their options and expancing their liberties.

But I see your position, that reasonable restrictions on liberties exist.

EDIT: Bugleyman wants to restrict marriages to adults, restricting the liberties of minors. Is that reasonable?

Just out of curiosity, do you believe that two siblings ought to be allowed to marry?


pres man wrote:
bugleyman wrote:
Chris Mortika wrote:


I was trying to choose "victimless crimes".

You failed.

Chris Mortika wrote:


Whose rightful liberties are violated by my owning military ordnance?

How about the rights of the people upon whom you may use the ordnance? :P

And no, the fact that you might not use it doesn't matter. Pointing a loaded gun at someone is assault.

But having a loaded gun locked in a safe in your home is not assault.

Guns don't kill hundreds (or thousands, or millions) of people at a time. Or are you really taking the position that private citizens should have access to nuclear arms? Again, it's a question of where individual rights are rightfully constrained.

If you'd care to explain how gay marriage is a threat to the liberty of others, I'm all ears.

Sovereign Court

pres man wrote:
bugleyman wrote:
Drug use.
So then how is giving drugs to kids not a victimless crime? They don't have to use it if they don't choose, nor do they have to accept it.

For the same reason giving alchohol to a 7 year old is a crime, once again, reasonable debate. Do we want to turn this into lets play the ludicrous scenario game?

We shouldn't allow prop 8 because next conservatives will want to change the constitution to rid of the first amendment.

Can we please stop using ludicrous over the top examples to try and make our points on both sides please?


pres man wrote:
So then how is giving drugs to kids not a victimless crime? They don't have to use it if they don't choose, nor do they have to accept it.

You reject any concept of kids being incapable of informed consent below a certain age? If not, at what age would they be able to consent? Putting heroin in the baby's formula gives that person little choice in the matter. Likewsie, a 4-year-old has no real ability to refuse consent to a competent parent. Where do you draw the line? That's why we're specifying giving drugs to kids; the distinction is meaningful.

Chris -- this should answer some of your points above as well.

By all means, keep looking for corner-cases, it's nice to have an "exception that proves the rule." Overall, the use of Jefferson's definition of "rightful liberty" gives a useful measuring stick for what laws are or are not conducive to that principle. Even if you can come up with an extreme far-out gray area, that only reaffirms the truism that no definition outside of theoretical mathematics is ever 100%.


pres man wrote:
bugleyman wrote:
Drug use.
So then how is giving drugs to kids not a victimless crime? They don't have to use it if they don't choose, nor do they have to accept it.

Children aren't capable of choosing for themselves. Are we really having this discussion?

The speed at which this thread has turned to the ridiculous is quite telling.

Liberty's Edge

Matthew Morris wrote:
As they do multiple wives, or husbands. However, they do not discourage one person (the smallest minority) from having a recognized marital contract with the person of their choice, subject to the laws of the state in question.

And i've stated before, I have no probly with polyamorous marriage. It's the "subject to the laws of the state" I have a problem with, as I believe those laws to be discriminatory and unconstitutional.

Matthew Morris wrote:
Yup, and that republic has said that there is 'no substancial federal question' about if a state can define marriage. Thus the default is that a state can. (Baker v. Nelson)

I believe the SCOTUS contradicted itself when (not) ruling on Baker:

Xpltvdeleted wrote:
I guess my question is, how should lower courts rule when they feel the SCOTUS has contradicted iteself? The SCOTUS has recognized that barring marriage on the basis of race is not constitutional, yet wouldn't hear a case regarding barring marriage on basis of sexuality. If a lower court views this as contradictory, couldn't they reference the IM case vs. the SSM case?
Matthew Morris wrote:
Nope, we do it all the time. I can't drive 70 miles on a highway marked 65, even if there are no other people around. My 14 year old goddaughter can get an abortion w/o parental consent, but can't get her ears pierced. An 18 year old can't buy alcohol.

Speed limits are a question of endangering others. The abortion question is a toughie...they are not of the age to enter contract, but it is their body, and will be their life if their parents force them to have/keep the child. As for 18yo and alcohol, there needs to be one consistent age of majority.

Matthew Morris wrote:
Yet another attempt to dodge the issue. Again, we allow minors to make decisions all the time (see the abortion above) so it is a valid question.

As for gay vs. pedophile, sex between consenting adults has never and will never be the same as sex between an adult and a child. Ever. Seriously. I'm not dodging anything, I'm calling out a scare tactic for what it is.

Matthew Morris wrote:
Wrong. Your sister in law can enter into a contract with another consenting adult. The Government won't recognize the contract under marriage. There's a difference. I know a couple (hah!) polyamourous groups who have been stable longer than both of my marriages. They have taken various legal methods that are recognized to protect their interests. I held my partner's POA. That was a 'contract with a consenting adult'.

If the government was telling you that you could get married, but only to another guy, would you be using the same argument? What is so wrong with letting people marry who they love (assuming of course they are both consenting adults who have reached the age of majority)?


Chris Mortika wrote:
But I see your position, that reasonable restrictions on liberties exist.

If by "reasonable restrictions," you mean "restrictions that protect the equal rights of others," then yes. If by "reasonable" you mean "whatever the majority happens to feel is reasonable," then no, you've missed my point entirely, and Bitter Thorn's, and Thomas Jefferson's as well.


Xpltvdeleted wrote:
If the government was telling you that you could get married, but only to another guy, would you be using the same argument? )

Nope.

Xpltvdeleted wrote:


What is so wrong with letting people marry who they love (assuming of course they are both consenting adults who have reached the age of majority)?

Yes, please elaborate.

The Exchange RPG Superstar 2010 Top 16

Bugleyman, there's middle ground between a Beretta .22 and nuclear arms. Surface-to-air missiles, for example, have a well-defined target.

We allow our fellow citizens to own and maintain small-arms and rifles, even though they could be used to violate other people's rights, to shoot people other than the owner himself. Serious (fringe) people have argued that the Second Ammendment is about giving citizens the right to overthrow the government (local, state, or even federal) when it becomes corrupt or oppressive, and that's why we need to be able to own armor-penetrating ammo and counter-SWAT gear.

You may disagree with that position; I certainly do. But that's because I believe the majority of citizens, either through our representatives or in direct ballot initiatives, do have the rights to curb some of those liberties.

Should I be allowed to exercise my right to walk down the street buck naked? Should two siblings be allowed to marry? Most people would say no, even though those issues don't disturb anybody else's constitutional rights.

(And lastknightleft, there are reasons to use outlandish examples; when we want to talk about some particular aspect of some issue, and we want to keep away from the legitimacy of other aspects, it's helpful to nail those other aspects to the corners, to provide more rhetorical space to debate the moot issues.)


Xpltvdeleted wrote:
If the government was telling you that you could get married, but only to another guy, would you be using the same argument? What is so wrong with letting people marry who they love (assuming of course they are both consenting adults who have reached the age of majority)?

Could get married AND have that marriage be given legal benefits? i.e. I could still have a mixed-sex "marriage" it just wouldn't be a government sanctioned marriage?

Well, honestly it is hard to tell how someone would react in that situation, yet I would hope that I would be able to divorce my own personal emotions from the issue. I would hope that I would push for a change in the law through legislative means.

The Exchange RPG Superstar 2010 Top 16

Chris Mortika wrote:
But I see your position, that reasonable restrictions on liberties exist.
Kirth Gersen wrote:
If by "reasonable restrictions," you mean "restrictions that protect the equal rights of others," then yes. If by "reasonable" you mean "whatever the majority happens to feel is reasonable," then no, you've missed my point entirely, and Bitter Thorn's, and Thomas Jefferson's as well.

This is the same Thomas Jefferson who prohibited free blacks from serving as postal carriers?

There's no clear line there. What you mean by "restrictions that protect the equal rights of others" is vague: one man's "rights" is another's "unreasonable burden". Over the centuries, the Supreme Court has identified and articulated new rights: the right to a decent wage, the right to privacy. Is there a right to decorum? Do fetuses have an equal right to life? Do prisoners have a right to vote?

Most people argue no, at least to 1 and 3. But most people are fine with laws that require me to go around town clothed, and allow us to have prisoners in the first place.

As well, there's middle ground between those two positions, Kirth. By "reasonable restrictions," I mean something less than "anything the majority damn well wants to impose" and more than "only those that offer immediate guarantee of rights."

My original point still stands: there are likely good reasons to reject Proposition 8. But the claim "We can't have any laws restricting our actions" is an extreme position that I think falls to close examination.


Chris Mortika wrote:
But the claim "We can't have any laws restricting our actions" is an extreme position that I think falls to close examination.

I agree. Good thing no one here is taking that position.

Sovereign Court RPG Superstar 2009 Top 32, 2010 Top 8

Xpltvdeleted wrote:
Matthew Morris wrote:
As they do multiple wives, or husbands. However, they do not discourage one person (the smallest minority) from having a recognized marital contract with the person of their choice, subject to the laws of the state in question.
And i've stated before, I have no probly with polyamorous marriage. It's the "subject to the laws of the state" I have a problem with, as I believe those laws to be discriminatory and unconstitutional.

Yes, laws are discriminatory. We don't let 14 year olds drive, even if they can. We don't let 16 year olds marry (normally) but they can drive. We don't let (some) fellons vote. We (meaning society) put qualifications on Government recognition all the time. You don't like it, you change the law.

Matthew Morris wrote:
Yup, and that republic has said that there is 'no substancial federal question' about if a state can define marriage. Thus the default is that a state can. (Baker v. Nelson)
Xpltvdeleted wrote:
I believe the SCOTUS contradicted itself when (not) ruling on Baker:
Xpltvdeleted wrote:
I guess my question is, how should lower courts rule when they feel the SCOTUS has contradicted iteself? The SCOTUS has recognized that barring marriage on the basis of race is not constitutional, yet wouldn't hear a case regarding barring marriage on basis of sexuality. If a lower court views this as contradictory, couldn't they reference the IM case vs. the SSM case?

So they clearly said that one can't discriminate purely on race. They've also held Polygamy to be illegal, and have said that there is no federal question on if a state can restrict the definition of marriage to opposite sex partners. (Note, they've also said a state isn't required to.) no contradiction there.

Matthew Morris wrote:
Nope, we do it all the time. I can't drive 70 miles on a highway marked 65, even if there are no other people around. My 14 year old goddaughter can get an abortion w/o parental consent, but can't get her ears pierced. An 18 year old can't buy alcohol.
Xpltvdeleted wrote:
Speed limits are a question of endangering others. The abortion question is a toughie...they are not of the age to enter contract, but it is their body, and will be their life if their parents force them to have/keep the child. As for 18yo and alcohol, there needs to be one consistent age of majority.

So you conceed that one can restrict the 'rights' of others? After all, 18 year olds can enlist, and thanks to the 26th ammendment, vote. "Old enough to kill, but not for votin'" to quote Barry McGuire. If the state can define the 'age of consent', why can't it define marriage as between one man and one woman? Or redefine it as two men or two women?

Matthew Morris wrote:
Yet another attempt to dodge the issue. Again, we allow minors to make decisions all the time (see the abortion above) so it is a valid question.
Xpltvdeleted wrote:
As for gay vs. pedophile, sex between consenting adults has never and will never be the same as sex between an adult and a

Ah, but you've conceeded that the age of majority above is a socital construct. just like the definition of marriage.

After all there are organizations supported by members of the current administration who had no problems supporting 15 year olds having sex with adults.

Personally, if I knew a pedophile, I'd be hard pressed not to kill him.

Sovereign Court RPG Superstar 2009 Top 32, 2010 Top 8

Xpltvdeleted wrote:
Matthew Morris wrote:


Wrong. Your sister in law can enter into a contract with another consenting adult. The Government won't recognize the contract under marriage. There's a difference. I know a couple (hah!) polyamourous groups who have been stable longer than both of my marriages. They have taken various legal methods that are recognized to protect their interests. I held my partner's POA. That was a 'contract with a consenting adult'.
If the government was telling you that you could get married, but only to another guy, would you be using the same argument? What is so wrong with letting people marry who they love (assuming of course they are both consenting adults who have reached the age of majority)?

Well since Donna and I didn't get married, but took legal protections for each other (admittedly not enough, but that's my fault, not the government's), I can honestly say that I'd be arguing for 'Fred' just as I do now.


Chris Mortika wrote:
This is the same Thomas Jefferson who prohibited free blacks from serving as postal carriers?

Yeah, the one who clearly explained why that course of action was wrong, but was stuck with it in order to appease his Southern confederates. If you want a better example, his act of not freeing his personal slaves is a violation of his core principles -- although there was some to-do about his financial debts making that course of action illegal under the existing laws.

Chris Mortika wrote:
There's no clear line there. What you mean by "restrictions that protect the equal rights of others" is vague: one man's "rights" is another's "unreasonable burden". Over the centuries, the Supreme Court has identified and articulated new rights: the right to a decent wage, the right to privacy. Is there a right to decorum? Do fetuses have an equal right to life? Do prisoners have a right to vote?

I agree, and stated previously, that no definition is 100%. I do prefer to have one as a starting point, though, from which we can hash out specifics; to simply say "I believe in reasonable restrictions" eschews any definition other than mob rule in the guise of democracy, because "reasonable" is defined only in terms of how many people you can find who agree with you.

Chris Mortika wrote:
My original point still stands: there are likely good reasons to reject Proposition 8.

So I've been told, and I'd like to think that was true -- although I've yet to hear any that don't hinge on either (a) basic majority rule, and minorities be damned (a doctrine that I continue to reject); (b) Biblical injunctions (a subset of (a), if you think about it); (c) declaration that existing definitions are always perfect and without flaw; or (d) some permutation of the above.


Chris Mortika wrote:
But most people are fine with laws that require me to go around town clothed, and allow us to have prisoners in the first place.

I disagree with those people on the first count -- I've been to places with much more relaxed standards of personal dress, and they are in no way in danger of immenent societal collapse (nor did the experience do me any harm). I can think of no compelling arguments requiring clothing that don't consist of a bald-faced statement of "majority rules, so suck it up."

For 99% of U.S. prisoners, I strongly diagree with those people on the second example as well. Throwing people into a cage to be imprisoned and tortured, and for their rights to be stripped away afterwards, is an extreme punishment that we hand out far too lightly. The U.S. has the highest per capita incareceration rate of any country in the world -- including China. "Most people are fine with it" solely because they haven't been put on trial for some minor offense yet -- and not just drug possession; there are hundreds of felonies that people commit every day without even realizing that they're violating the law.

Sovereign Court RPG Superstar 2009 Top 32, 2010 Top 8

Kirth Gersen wrote:
Chris Mortika wrote:
But most people are fine with laws that require me to go around town clothed, and allow us to have prisoners in the first place.
I disagree with those people on the first count, and for 99% of U.S. prisoners on the second count as well.

if you've ever seen me naked, then you'd be all for the first law ;-)


Matthew Morris wrote:
if you've ever seen me naked, then you'd be all for the first law ;-)

I understand that's a joke, but people try to use it all the time as a serious argument. I'm free to look away; nothing forces me to obsessively ogle something I find repulsive. Nor will a quick glimse of someone, regardless of how attractive or ugly they are, scar me for life in any way.


Kirth Gersen wrote:
Chris Mortika wrote:
This is the same Thomas Jefferson who prohibited free blacks from serving as postal carriers?

Yeah, the one who clearly explained why that course of action was wrong, but was stuck with it in order to appease his Southern confederates. If you want a better example, his act of not freeing his personal slaves is a violation of his core principles -- although there was some to-do about his financial debts making that course of action illegal under the existing laws.

Chris Mortika wrote:
There's no clear line there. What you mean by "restrictions that protect the equal rights of others" is vague: one man's "rights" is another's "unreasonable burden". Over the centuries, the Supreme Court has identified and articulated new rights: the right to a decent wage, the right to privacy. Is there a right to decorum? Do fetuses have an equal right to life? Do prisoners have a right to vote?

I agree, and stated previously, that no definition is 100%. I do prefer to have one as a starting point, though, from which we can hash out specifics; to simply say "I believe in reasonable restrictions" eschews any definition other than mob rule in the guise of democracy, because "reasonable" is defined only in terms of how many people you can find who agree with you.

Chris Mortika wrote:
My original point still stands: there are likely good reasons to reject Proposition 8.
So I've been told, and I'd like to think that was true -- although I've yet to hear any that don't hinge on either (a) basic majority rule, and minorities be damned (a doctrine that I continue to reject); (b) Biblical injunctions (a subset of (a), if you think about it); (c) declaration that existing definitions are always perfect and without flaw; or (d) some permutation of the above.

+1

The question has been asked over and over in this thread. Who does SSM hurt? Whose rights does it violate?

If there is not a very compelling answer to this I don't see any point to the debate. For me the issue is settled.

If the argument outside of harm is that it's OK to restrict the liberty of others because we already do so, I simply reject that argument.

It seems like the thread has gone down a semantic rabbit hole, where small government conservatives are arguing in favor of more intrusive government. Then we wonder why we aren't taken seriously.

I have to go vote in the primaries now, so good luck.

Sovereign Court RPG Superstar 2009 Top 32, 2010 Top 8

Bitter Thorn wrote:
It seems like the thread has gone down a semantic rabbit hole, where small government conservatives are arguing in favor of more intrusive government. Then we wonder why we aren't taken seriously.

The 'intrusive government issue' is in the state recognizing marriages at all. But as to defining marriage, this 'small government conservative' just feels it is an issue left to the states, not the judge ignoring precident and making rulings out of whole cloth. Nor to executives who decide to abdicate their sworn oaths because they don't like their jobs.

The Exchange RPG Superstar 2010 Top 16

Chris Mortika wrote:
My original point still stands: there are likely good reasons to reject Proposition 8.
Kirth Gersen wrote:
So I've been told, and I'd like to think that was true -- although I've yet to hear any that don't hinge on either (a) basic majority rule, and minorities be damned (a doctrine that I continue to reject); (b) Biblical injunctions (a subset of (a), if you think about it); (c) declaration that existing definitions are always perfect and without flaw; or (d) some permutation of the above.

You have misunderstood my point. I didn't say that there are likely good reasons to uphold Prop 8.


Matthew Morris wrote:
But as to defining marriage, this 'small government conservative' just feels it is an issue left to the states

I would be inclined to agree, but there are so many unanswered questions that way. If a gay couple marries in MA, and moves to MD, you're okay with that constituting an automatic no-fault divorce? What if they move back to MA?

And can straight couples claim the same right, by moving to a state that chooses not to recognize any marriages?


Chris Mortika wrote:
You have misunderstood my point. I didn't say that there are likely good reasons to uphold Prop 8.

AH! Yes, indeed you did. Thanks.

The switch from "restrictions are OK" to "this one isn't" threw me -- not an excuse, just me berating myself for not reading more carefully.

Out of curiousity, though, what would your reasons for rejecting it be? Obviously not "majority rules."

Sovereign Court

Matthew Morris wrote:
Bitter Thorn wrote:
It seems like the thread has gone down a semantic rabbit hole, where small government conservatives are arguing in favor of more intrusive government. Then we wonder why we aren't taken seriously.
The 'intrusive government issue' is in the state recognizing marriages at all. But as to defining marriage, this 'small government conservative' just feels it is an issue left to the states, not the judge ignoring precident and making rulings out of whole cloth. Nor to executives who decide to abdicate their sworn oaths because they don't like their jobs.

Okay well it was left to the state and was ruled unconstitutional by a judge in the state, so if the supreme court doesn't hear the case then it is being left to the state. So what exactly is your issue? At this point it's the people supporting prop 8 who are going to push it up the ladder and force it to become a federal issue.

Liberty's Edge

Matthew Morris wrote:
Yes, laws are discriminatory. We don't let 14 year olds drive, even if they can. We don't let 16 year olds marry (normally) but they can drive. We don't let (some) fellons vote. We (meaning society) put qualifications on Government recognition all the time. You don't like it, you change the law.

And once again, I'll say that there needs to be one age of majority. As for felons not voting, that is part of the punishment. Granted, voting was much more important to people in times past...nowadays losing your right to vote isn't that big of a deal to most (well half at least).

Matthew Morris wrote:
So they clearly said that one can't discriminate purely on race. They've also held Polygamy to be illegal, and have said that there is no federal question on if a state can restrict the definition of marriage to opposite sex partners. (Note, they've also said a state isn't required to.) no contradiction there.

They have said one type of discrimination is wrong, so that means that only that type of discrimination is wrong? One can infer (which is all precedent is IMO) that because IM marriage cannot be barred b/c race doesn't matter, SSM cannot be barred b/c sex doesn't matter. Just as one can infer the opposite b/c of Baker. The problem with a precedent based court system is the fact that much of it is based off of a subjective view of precedent.

Matthew Morris wrote:
So you conceed that one can restrict the 'rights' of others? After all, 18 year olds can enlist, and thanks to the 26th ammendment, vote. "Old enough to kill, but not for votin'" to quote Barry McGuire. If the state can define the 'age of consent', why can't it define marriage as between one man and one woman? Or redefine it as two men or two women?

The state has an interest in defining an age of majority. This explicitly delineates responsibilities and rights. Once that age of majority is set, the state should not interfere with contracts between two (or more) people who have reached that age.

Matthew Morris wrote:

Ah, but you've conceeded that the age of majority above is a socital construct. just like the definition of marriage.

After all there are organizations supported by members of the current administration who had no problems supporting 15 year olds having sex with adults.

Personally, if I knew a pedophile, I'd be hard pressed not to kill him.

The age of majority is a legal necessity; the definition of marriage is not. "Marriage" should be left to religions and marriage as we know it should be replaced by civil unions for all (SSM, OSM, polygamy, etc) as long as that union is between consenting adults. Religious folks are the only ones who care about the definition and maintaining a flawed status quo. Those who are for SSM are only after one legal standard to which all are held (no more separate, just equal).

I would also be hard pressed not to kill a pedophile...pedophilia is not at issue here...how many times do i need to say that?

Now on to the million dollar question:

Rights should only be limited when limiting those rights protects the rights of another. How does disallowing SSM protect your rights? How would allowing SSM harm you?

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