Terri Schiavo (Page 10)

My argument isn't based on whether the government has the power (clearly, it does) or the right to pass DOMAs (their rights change when the Supreme Court catches up with them). I was merely pointing out that power and rights are 2 different things. George Wallace had the power to keep his universities all-white until he didn't have the power. He maintained, however, that it was still the State's right even if a higher power trumped his power. It is within this context (Terri's Law, Wallace) that I'm being picky about the semantics of power and right. Might (power) makes right in a country where the population's rights are not protected. Might does not make right in a country where civil liberties are secured.

My argument, which I have alluded to, is that it's simply the right and moral thing to do in the bastion of liberty which we (pro)claim the US of A is.

Edited by Renee 2005-03-31 4:11 PM

Yup..agreed.

• Is there such a thing as a "right and moral thing"?
• If so, where does it come from?
• Can it change over time, or is it absolute?
• Can our understanding of it change over time as reflected in our values?
• Ought it apply to everyone?
• How can we come to know what it is?
• How can we come to consensus about it in a pluralistic society?

Florida has never recognized the "interspousal exception" to the rape doctrine.

If you are arguing that mores change over time, and those changing moral views should ultimately be reflected in changes in the law, then I would agree. (There are dangers with that too of course. In fact I think in this exact discussion that too would be a weak argument because polls show that a majority of Americans believe that gay marriages should not be recognized. Thus, if you want to try to relay upon a change in mores to foster a change in law, you may be waiting awhile. Thus some other argument would be needed to change the status quo. And they are out there.) But, I have heard over and over that the government doesn't have the right/power/or ability to regulate marriage. This is simply not true as a matter of law and as a matter of history. No other point or assumption should be read into my statement than the above.

Love is not always the teachings of the Bible. Islam gets a bad wrap as Christianity has it's own puzzling contradictions. For example:

Remember, O Lord, against the Edomites the day of Jerusalem’s fall, how they said, “Tear it down! Tear it down! Down to its foundations!” O daughter Babylon, you devastator! Happy shall they be who pay you back what you have done to us! Happy shall they be who take your little ones and dash them against the rock! (Psalm 137:7-9)

O that you would kill the wicked, O God, and that the bloodthirsty would depart from me those who speak of you maliciously, and lift themselves up against you for evil! Do I not hate those who hate you, O Lord? And do I not loathe those who rise up against you? I hate them with perfect hatred; I count them my enemies. (Psalm 139:19-22)

A man is the image and glory of God; but the woman is the glory of man. (Cor. 11:7)

I do not permit a woman to teach or to have authority over a man; she must be silent. (Tim. 2:12)

Women should remain silent in the churches. They are not allowed to speak, but must be in submission, as the Law says.(Cor. 14:34)

Before your very eyes I will take your wives and give them to one who is close to you, and he will lie with your wives in broad daylight.(Sam. 12:11)

I could go on, as the bible is one easy target. Replace "god" with "Zeus" and "Jesus" with "Hercules" and you can have a good snicker while reading any religious text.

And here I sit at work, in Arlington Heights... Yes, it's a small small world!

"In fact I think in this exact discussion that too would be a weak argument because polls show that a majority of Americans believe that gay marriages should not be recognized."

Whose polls?

I have been trying to ignore this thread, but since so far, only one gay person has spoken up, I feel I must also. Every "poll" that suggests "a majority" of America believe gay marriage should not be recognized that I have ever seen is totally bogus as to its data collection methods.

A majority of Americans didn't vote for our current president either.

The will of The American People is completely divided on this topic, and if you get more specific and technical with the language, you CAN correctly say that the majority of Americans are in favor of civil unions.

As a lesbian who is commited permanently in the eyes of several cities, her family and friends, and the Episcopal priest who married us, I am not satisfied with a civil union where marriage should be my right, but it would be a nice start.

FWIW, my partner and parents each have copies of my living will and they all know where I stand and who makes choices on my behalf.

And as for a previous poster's Q about who wants to starve to death? I do if I have been in a vegetative state for 15 years, and all signs point to brain death. I do for sure.

I believe that some truths are self-evident. I'm not an original mind; it's something I take on faith, borrowing from our Founding Fathers. Invoking "the Laws of Nature and of Nature's God" they proclaimed that I have certain inalienable rights. That's good enough for me. The Constitution is my bible.

Can it change over time? I believe in evolution in a biological sense and in an anthropological sense, so it is my hope that man will continue to evolve into a more humane creature, respecting the rights of others, rejecting the vulgar choice of war, and embracing our common humanity.

Ought it apply to everyone? In a civic sense, yes. In a personal sense, no. Nobody is asking you to marry a gay person. They are asking that they be afforded the same rights as their heterosexual brethren. Why is that so difficult to swallow?

How can we come to know what it is? To borrow from kpak, every creature in the universe knows right from wrong. Despite this, I also believe that humans will act knowing their actions and hostilities are wrong and have great capacity for rationalizing.

How can we come to a consensus? Instead of asking that we come to a consensus about morality, perhaps we should ask instead that we come to consensus that all people should enjoy the same liberties, not just the people who agree with us. Let's agree to respect the rights of others to choose their own path. Let us err on the side of liberties. To borrow from Candide, let us each tend to our own garden.

Gotta run - beer thirty.

You have caught my point exactly. Leaving changes to the whim of what might or might not be the majority view is dangerous. The point was, that if you are to argue that current statutory schemes that define what a legally recognized marriage is should be changed based upon changes in common morals/mores you are in an uphill struggle and in a difficult position to defend. That's because as Dontracy said in an earlier post: what constitutes the common mores/morals of the society? You're right polls can say what ever the pollsters want them to say. So why base an argument for change on something as whimsical as perceived "changes in morals"?

Again, I'll say it once more, if you believe that gay marriages should be recognized find some argument other than 1) the government doesn't or shouldn't have the right to regulate marriage. 2) It should be changed because of changes in the moral fabric of society.

Argue some well defined Consitutional claim. That is where the best success might be had. (Look at Hawaii, arguments were based upon the word "sex" in the equal protection clause of the State consitution)

A second way to get same sex marriages recognized is to proactively vote for those individuals that represent your point of view towards the goal of changing the current statutory scheme in your state.

In essence change the law or find a way to over turn it. Again, once more for those that haven't gotten it yet: I'm trying to point out the weak arguments. you can keep putting them forward, but I don't think that will change the fact that they will remain weak arguments for change. There are much stronger arguments out there.

If nothing else comes out of this whole mess I learned one thing...I turned off the e-mail notification feature.

Ohhh NOOOOOOOO. DIdn't even think about that.

Renee, I haven't expressed my thoughts, on this thread, about gay marriage at all! If you think I'm against it, you're making an assumption.

I was struck by your use if the term "moral and right thing". I'm interested in whether or not people, including yourself, actually believe there are moral rights.

Yesterday, you put this question to me:


So I'm left wondering whether you believe there are or not.

Tom, if that is directed at me, I'm not interested in trading ad hominem attacks with you or anyone else.  See my previous post to Renee.  I think you missed my point.

If your comment wasn't directed at me, my apologies.

I again I agree with you that it should be allowed. And I can actually go into a wicked long disertation about why they have not been allowed and how in fact that is legal. I haven't asked anyone to justify or prove anything. Where have I in any post in this thread asked someone to demonstrate why or how civil unions or same sex marriages can be legal? Trust me, if I wanted to play devils advocate and play that role I could.

People have asserted that the government has no right/power/ or authority to regulate marriage. I have simply pointed out that is not true, from a legal stand point. I have simply urged people that there are much more compelling arguments out there than 1) the government can't do it; 2) the government shouldn't be able to do it and/or 3) changing morals/mores.

And here's why welshy...if we base a change in law not upon a constitutional right, but rather on a perceived change in moral fibers, then that newly changed law is as vulnerable to change as the law that was overturned. If the moral fiber changes back in the future then the law could likewise change back. However, in contrast if the change is based upon a Constitutionally defined right then no change in the whims or whimssy of the moral fiber of the country can destroy that right. It likewise would be protected by a higher scrutiny if there were any governmental intrusions upon that right (a strict scrutiny standard).

The circular argument is actually, it should happen because it should happen, which is what you have set forth repeatedly. Or more correctly, you have basically said it should happen because I think it's the right thing to do. We are a country of Laws, like it or not. Those laws are in place to protect us from the whim and whimsy of the populace. It protects from tyranny of the majority as well as tyranny of the minority. Thus, you have to change injustice through the use of those laws. To do other wise is anarchy.

But, you have iether intentionally mischaracterized my argument in an attempt to produce a responce, or you have ignored the plain meaning of my argument or you have not understood my arguenment.

It was not to you and wasn't an atack regardles (or at least wasn't meant in that vein), Dontracy, and what do you have against Indian food? I love hominem....

Rest in peace Terri

So should I have the right to marry my sister? Or how about my brother (why limit it to the opposite sex?) Or how about my sister and my brother (why limit the number?) Or my mother or father?

I don't have much time to elaborate, but doesn't it seem like there should be a line drawn somewhere?

I am not sure we are having the same conversation. Repeatedly your agruements are based upon your perseption of a point rather than the actuall point, it seems. Like you're having the conversation with yourself and the rest of us are just chattle for you to condesend to.

"Again, I'll say it once more, if you believe that gay marriages should be recognized find some argument other than 1) the government doesn't or shouldn't have the right to regulate marriage. 2) It should be changed because of changes in the moral fabric of society."

--I took this to mean "tell me why gay marriage should be allowed in a way other than what I have outlined here"

"And here's why welshy...if we base a change in law not upon a constitutional right, but rather on a perceived change in moral fibers, then that newly changed law is as vulnerable to change as the law that was overturned."

--thanks for the condescension, but I'm full. No one but you has mentioned changing a law based upon perceived change in moral fiber, at least I have not. I mentioned changing it because it is fundamentally discriminatory, much the same way women's right to vote and segregation were ruled to be discriminatory.

"it should happen because it should happen, which is what you have set forth repeatedly. Or more correctly, you have basically said it should happen because I think it's the right thing to do."

--Completely inaccurate - for a lawyer, you sure do paraphrase a lot. What I said was it should happen because there is no reason for it not to happen. I have also said it is discriminatory. I have further said religion should not have a place in deciding who can civilly join.

"But, you have iether intentionally mischaracterized my argument in an attempt to produce a responce, or you have ignored the plain meaning of my argument or you have not understood my arguenment."

--How could I have been so dimwitted as to not understand your point, your meaning or your arguement. Of course it is completely my fault for not understanding you point, which, I gather, lies somewhere between the law is the law and the polls say it's bad, but I am just a common lay-person, so can harldy be faulted for my gross ignorance and uppidy nature when dealing with the righteous dignity and superior certainty contained within a christian lawers thumping breast.

Edited by tmwelshy 2005-03-31 7:02 PM

Sure lighthouse, lets limit it to people with IQ's over 130.

lighthouse, you MUST be joking. Because I can't believe you really equate your marriage to your sister to my marriage with my partner. welshy, i think i love you.

tmwelshy: Ok here it is: But first an aside, the folowing is not my position. It is the position of years of precident on the issue of marriage. It is boiled down, really boiled down: It is what it is.


1: Marriage is a social contract between the two individuals and the government (State governments)
2: As the state is a party to the social contract of marriage, the state has an interest in that contract.
3: Thus the contract can only be voided (insert divorce) with the agreement of all parties. Thus the only reeasons for divorce are those statutorily recognized.
4: Because the state is a party to the contract of marriage, it has the ability to regulate marriage.
5: States that prohibit same sex marriages usually do so by defining a marriage as a union between two people of the opposite sex.
6: This discrimination has been justified upon the basis of a substantial governmental interest.
7: The substantial governmental interest that is most often presented is that the government has the important interest in increasing the population.
8: The assumption is that same sex marriages do not produce children on thier own.
9: because this has been deemed to be an important/legitimate governmantal interest laws limiting the definition of marriage to people of opposite sexes have been upheld under review on Constitutional matters.

I also outline the above to show the difference between the issue of same sex marriage and the Schiavo case. In the Schiavo case we were dealing with a fundemental personal right of self-determination in accepting or rejecting medical treatment. (Not my wording again, the wording of Florida statutes and the Courts, both federal and state) It was an individual right, and as such a totally different legal issue than same sex marriages.

This is a very basic outline of numerous cases involving marriage issues. It's very basic, not because I don't think people can't understand more in depth, but because there isn't time nor space enough to do more.
Contrary to popular belief, the government can in fact enact discriminatory policies. There is a seperate test for when it does so, actually two distinct tests depending on the "type" of people being discriminated against. (The idea of a protected class). There has to be an "important"(for the life of me I can't remember the actual term) governmental interest, the policie must be rationally related to that interest, and the governmental interest must not be a reaction to litigation to justify it's actions, it must be an interest that existed at the time of the passage of the measure. These cases have been decided by judges appointed by both republicans and democrates so, it isn't a new George Bush thing. This is a debate that has been going on for decades.

I have avoided setting this out because I'm sure someone is going to attribute the above to me and say how ridiculous I am to make such statements. But they aren't mine!!! They are the courts.

I don't believe I've ever been amibiguous about my position on this matter. My position is that I am in favor of same sex civil unions. I think that worrying about what goes on between other consenting adults is perverse in and of itself. What I have continuously argued, and have stated explicitly is I believe to achieve this goal there has to be a better argument than: 1) the government doesn't or shouldn't have the power to regulate marriage; 2) laws change as the moral fiber of the country changes or 3) it should happen because there's no reason for it not to happen.

I feel these arguments, while well meaning, and perhaps on a personal moral level are correct, on a legal basis they are weak and not likely to succeed. As stated before argument 1 is weak because the government does have the ability to regulate who gets married. #2 is weak because it is dangerous and puts change at the whim of changes in social values, which ultimately can change back as the whim changes again. #3 is weak because for every person that takes that position there is another that takes the opposite.

I think I said in a previous post that the way it was accomplished in Hawaii was a better way. Perhaps what I should have said is it is a more effective way. All I've been trying to say is arguments about why something should happen are great, and on a philisophical level interesting. But to effectuate change, real and lasting change you have to find something that works.

Ideally the best way to accomplish the goal is a straight legislative change to the definition of marriage. Alternatively, you could try to have homosexual individuals defined as a protected class which would give them hightened protection in the courts and subject the governemnt to a stricter standard for discriminatory action. Another option would be somehow to find a federal anti-discrimnatory statute that could get you into federal court. (Not really sure about this one, I think it's been tried and the Federal courts have declined based upon state's rights issues) My view is that the only way to accomplish the goal is to somehow find some Constitutional protection. I don't think an argument of freedom of association would work, which is what I at first blush thought of, but probably also a loser.

And Yes I'm a lawyer, and proud to be one (I'm a prosecutor); yes I'm a christian, and proud to be that too. What I am not is self-rightous. Nor was I "chest thumping" The only time I "chest thump" is when I convict someone. Nor do I need to make posts simply to get a reaction.