you go,...

...girlfriend!

hee hee.  You said post. 

I read it as either snarky or a very shrewd attempt to influence the jury before the case is presented. Well done! Remind me to hire you next time I need a lawyer.

Seriously, I wish I could spend all day talking about this stuff, but I haven't figured out yet how to turn BT time into billable hours.

I did a search and saw that we talked about this back in March on another thread . So for the sake of moving the conversation along, I'll just repost what I wrote back then.

And to expand on the use of the term natural law, my understanding is that natural laws are those laws written on the human heart which do not need to be taught.

For example, the prohibition against killing would seem to be a natural law which is connected to the right to life. Now, what constitutes killing is another question.

Here's some good reading on natural law .

OK, so here's a definition marriage that I posted before. It's by Robert P. George. I believe it is based in natural law theory. I think George is one of the authors of the Defense of Marriage Amendment. It's possibly the type of argument that will be used in the event that there are 14th amendment challenges to state Defense of Marriage amendments.

I'll take a stab at this.

And rather than put this into my own words, as I am still in the stage of trying to understand both sides of the argument, I'll quote Robert P. George, professor of Jurisprudence at Princeton.

"Here is the core of the traditional understanding: Marriage is a two-in-one-flesh communion of persons that is consummated and actualized by acts that are reproductive in type, whether or not they are reproductive in effect (or are motivated, even in part, by a desire to reproduce). The bodily union of spouses in marital acts is the biological matrix of their marriage as a multi-level relationship: that is, a relationship that unites persons at the bodily, emotional, dispositional, and spiritual levels of their being. Marriage, precisely as such a relationship , is naturally ordered to the good of procreation (and to the nurturing and education of children) as well as to the good of spousal unity, and these goods are tightly bound together. The distinctive unity of spouses is possible because human (like other mammalian) males and females, by mating, unite organically - they become a single reproductive principle. Although reproduction is a single act, in humans (and other mammals) the reproductive act is performed not by individual members of the species, but by a mated pair as an organic unit."

That paragraph is a lot to work through in one sitting. Here are the key points in my mind:

Marriage is the union of two persons in a multi-level way. These levels include the emotional, the spiritual. And it includes the bodily, whereby the two persons become one biological organism.

This union is ordered toward the good of procreation, even if the union does not effect procreation.

I agree with most of that description of marriage, except that you seem to take purely biological "sex" argument to define the union.  I would define the union to be one of the "soul" ( which to me is the combination of heart and mind that defines each of us as a person ) between the parties of the marriage.  It seems more a defintion of "biological law" than "natural law".  Though they are intertwined, the purely biological definition is too clinical and absolute, and as with most absolutes, withers under scrutiny.

The last time the definition was posted, there were some examples posted:

Man and woman biologically unable to conceive or for other reasons, have no children and do not adopt.  Can they be married?

Man and woman who have no children of their own but who adopt, this furthers the procreation of the species.  Can they be married? 

Man and woman, one of whom has suffered an injury that prevents them from performing the act of intercourse.  Can they be married?

Man and woman, one of whom has undergone a gender change operation.  Can they be married?  ( Ironicly, in some states that don't recognize a gender change, a couple of the same sex could be married, if one of them was previously a member of the opposite sex ).

I would answer yes, to all of the above, because I believe that in each case, a union of their souls can be achieved in every case.

The rule of "natural law" to me that trumps any other, is love.  Who are we to deny love or to define it for others?  How is the proposed amendment, or any "ban" on gay marriage, in line with the law of "love"?

OK, don, as promised, I intend to show you the flaws in the argument.

First, there seem to be many permutations of "natural law."  Rather than those laws written "on the human heart", my conception of "natural law" (again, mostly from a philosophy course almost a decade ago) is that it is those rules which can be gleaned using logic...those that necessarily apply to everyone simply because of the way we interact in the world.  Nevertheless, the starting place of any permutation of natural law I would think, should be the same:  We're all entitled to the same rights and freedoms as anyone else.  So, if you discriminate, you should have to show a good reason for that.
And I think that's what the George quote is attempting to do, that is, justify discrimination. 

But the problem is that George comes up with a definition for marriage that is more poetry that science.  What I mean is, sure that sounds good, but what's the basis for it?  natural law has to be something we can all agree on, and his conceptualization is not (for example, I don’t agree that that is what marriage is.)  From what I can tell, all George's conception boils down to is biology.  Which is fine, and if someone would like, may provide a them with what they think is a good basis for thinking that homosexuality is "unnatural"... but how does that translate into rights given and taken away...in the context of a social contract?

George seems to assume that marriage has always been around.  Correct me if I'm wrong, but marriage (in the legal sense, with the bundle of rights and benefits that come with it) is purely a construct of civilization.  If there were none of these benefits attached to marriage, this would not be an issue.  If marriage were purely a community ceremony recognizing a relationship, we'd all be just fine.  So what, in natural law says that "marriage" should be what it is…a “recognized” union, that carries rights and benefits with it?

And George's definition still leaves the nagging question...what about gay people?  What about the rights that are necessarily granted them by being "equal" at the conception of natural law.  Are we just supposed to tell them, "sorry, you are not natural"…takes a little away from the “all created equal” idea.

It seems to me that natural law should balance rights.  What I mean by that is, if any rights are taken away, or we give certain people more rights, there should be a justification for that.  It doesn't seem that denying gay people benefits that straight people have is justified, because there is no adequate explanation for the group of people who are at a rights deficit.

In the end, Don, I think this conception of natural law is narrower than any I’ve seen.  And I think any moral code must be based on a larger overlying principal…for me (as it was for the founders of this nation, when they were speaking intelligently) it is that we are all equal…you want to take away my rights? or discriminate against me?…show me why…and it better be something better than, “you don’t fit into a particular definition we’ve created.”

Chris, those are good questions about real world cases that need to be addressed if you subscribe to George's definition of marriage. Right now, though, I just want to respond to Paul's points.

I agree that there are many possible permutations of natural law. Maybe a better phrase would be natural law theory. But it seems to me that even with a fudge factor as to what a natural law actually is, it is better than the positive law theory that has been developing that, it seems to me as a legal layperson, allows for laws that are not base in some underlying eternal truth and therefore allows for the possible development of tyrany.

So I agree that there needs to be a lot of discussion about what a particular natural law actually is.

Another good point you raise is about the history of marriage. This is something I'd like to study more about, so I'd be interested in any recommendations for reading. I don't think George is arguing that marriage has always been around in the legal sense. I imagine that he might argue, and I don't know this for a fact, that in the aggregate it has been around, more or less in this form, for much of recorded history, even if in a non-codified form.

In other words, the legal nature of marriage that we have today may have simply resulted from the need to codify and clarify what was already going on, perhaps to clear up increasingly complex issues of property rights for example.

As far as what in natural law says that "marriage" should be what it is…a “recognized” union, that carries rights and benefits with it, I'd say that one good that is recognized by most definitions of natural law is the good of procreation. By this thinking then, marriage is rightly ordered toward the good of procreation.

This is where the biology comes in. I think the question of homosexuality being "natural" or not is secondary, (I happen to think that it is natural, some combination of nature and nurture just as with every other personality type). The main question is whether it is ordered toward the good of procreation. The objective answer is that it is not. It's impossible. The only sexual act ordered toward the good of procreation is intercourse, "the marital act", between a man and a woman.

George recognizes the other aspects of marriage when he writes, The bodily union of spouses in marital acts is the biological matrix of their marriage as a multi-level relationship: that is, a relationship that unites persons at the bodily, emotional, dispositional, and spiritual levels of their being.

I would say, from my experiece, that most of these other aspects seem possible between persons of the same sex (I'll leave out spiritual because everyone is going to bring their own theology to the table on that one. That's a whole other discussion.) What's different, though, is what George calls the biological matrix of their marriage of the marital act, intercourse.

To my mind, this is not just an add on to the rest of the litany of marital aspects, but is integral to it. The totality of the list is what makes marriage a marriage.

The question, I guess, is what do you have when you remove the biological aspect from the list. How do you protect the rights of people who have some sort of covenant that does not contain the biological aspect.

I think Welshy said the other day that the compromise here may be in laws around domestic partnership. I think he may be right about that. If you look at the opposition to gay marriage, I think you'll find that, in general, there is an acceptance of some sort of change in the law that would recognize domestic parnership. I know here in Pennsylvania, the language of the upcoming Protection of Marriage amendment was just changed to allow for these kind of laws.

What has gotten people in a lather, though, is the attempt to appropriate the term "marriage" and turn it into something it is not.

From here, I guess, all kinds of questions come up. For example, what then is the difference between marriage and domestic partnership; should marriage not be a civil term at all and be reserved strictly for religious institutions. These questions and more are really good ones and ought to demand our attention.

So, I don't think that George's definition of marriage is discriminatory at all. I think it clearly points out why the particular human relationship called "marriage" ought to rightly be reserved for heterosexual couples and why it is of a different order than other forms of human relationships.

I know that this all needs more parsing out, but that's what I have for now.

Don,

as always I appreciate the genuine and calm way you look at things, but I want want to rip my eyes out of my head with dull rusty nails so that I can scratch this burning itch that occurs any time the religious right tries to control the rest of our lives....

It seems to me that you are deliberately letting definitions and terms allow you a reason to oppose, or at least argue, gay marriage. Are you actually defending your stance with the definition of Natural Law? Natural law is a red herring and a slippery, slippery slope, but I think on some level you know that which is why your using it as your justification.

By your reasoning, focusing on the letter of the law, gay couples already have the right to be married. The fact that a constitutional amendment is necessary to stop gay marriage is all the "letter of the law" you need if you are going to split hairs for justifications. These people (religious right) are trying to deny rights to citizens of this country based on their sexual preference. I'm sick of it. Denying gays the right for civil unions/marriage is discriminatory under any rational persons eyes not altered by a religious looking glass - forget natural law, if I want to share my life and assets under the law with another man... or woman, it is absolutely none of governments business, local, state or federal - and none of yours or mine.

I just can't believe that anyone would care this much about a gay union. If they're going to burn in hell for being gay, what difference does it make if they file joint tax returns? I'll tell you: this is about control and power - religious control and power. Damaging the fabric of society? The sanctity of marriage? Please. Say what it is: religious intolerance. There is a part of me that feels (and you mentioned that for 25 years you felt gay marriage was ok) that many devout and intelligent people don't really oppose gay marriage, but feel like they're supposed to because those with power in their church and government say they should oppose it. All those I speak to who on the surface oppose gay marriage seem to offer arguments like yours - half hearted and sheepishly guilty.

I have to say I am getting angry (not at you, Don) but at those that propagate lies and hate and exclusionary tactics like this for political expediency and chalk this disgusting behavior up to the cost of doing business. Why do smart people like yourself not get angry at the transparent way in which this topic was raised with the expressed purpose of rallying the troops for mid-term elections?

Don, I love you, you know that, but I find your reasons/justifications to be reaching at best and smoke and mirrors at worst.

Welshy

I'll get to the marriage vs. civil union thing in a bit, but first, more on George.

Now that I think about this it seems all the more clear to me.  George's definition has nothing to do with "natural law".  He creates this definition of marriage that seems to make sense (we all want to agree marriage is this union between the mind, body, and spirit, right?) but it's really just one man's musings...people marry for money, solely for procretion, solely for love, etc., so his definition is not universal.  And I think my overall thoughts about this is that you can't use one person's perspective and say that's the basis for natural law.

To be more specific, you say that you want natural law, as opposed to "positive law", but creating marriage benefits (and giving married people extra rights) IS positive law...it's positive law that has some basis in biology, but has absolutley no basis in the idea that we're all equal (I know that's getting redundant, but, as you may be able to tell, I believe that's the corner stone.)

Just to point out one example, you say "I'd say that one good that is recognized by most definitions of natural law is the good of procreation. By this thinking then, marriage is rightly ordered toward the good of procreation."  So what you're doing then, is wanting to create positive law (benefits and rights that encourage people to marry) to further a good (procreation).  In my thinking, the "natural law" involved in that equation is that people have THE RIGHT to procreate, to raise a family, etc...and laws should not be created that impede that right.

So, whether gay people are entitled to "marriage" as opposed to "civil unions"?  I believe civil unions does the trick for me, as long as those in civil unions are entitled to all the same benefits and rights as married couples (a rose by any other name...). 

Iwould still have a problem with an amendment making marriage as only between men and women, however, but from a different standpoint, namely that it's instilling the notion that civil unions are somehow secondary to marriages, and implies that those in civil unions are second-class citizens...it's just a not-so-sly dig at a group of people the pro-amendmentites think are "unnatural"

and the question about the amendment goes to your thoughts about the terms "marriage" and "union" and whether one should be reserved for one type of ceremony/relationship.  Those are questions that we could resolve, but only after there is a consensus that we're all entitled to the rights that everone else has.

Welshy - I love you too... and I love that scratching your eyballs image...

Jamie - If anyone tells you that you're going to hell, send them to me. I don't know of any sound christian theology that could say that with certitude. I got your back on that one.

You raise another really good point. There clearly are plenty of hetoerosexual marriages that do not fit George's definition of what a marriage is.

So, for example, if love is not part of the list of aspects, then is it really a marriage. One question is how would you measure or observe that? That's just one of a lot of questions that your point brings up for me.

Last week the challenge was put forward to make a rational non-religious case for the claim that marriage ought to be reserved for a man or a woman, or rather the challenge was to make a case for banning gay marriage. I'm trying to make that case. As I said then, there's a lot of ground to cover, and a key part of that ground is what is the nature of natural law.

So indulge me here and let's look at the question from another angle.

The vast majority of proponents of gay marriage say that marriage ought to be between any two persons.

Why two?

What is that opinion based in? Why is two the magic number?

Wouldn't a marriage between more than two people be a same sex marriage?  Or only if this marriage/civil union were based on equality with each member having the same benefit? By this I suppose I mean, consensual.  Does it ever really happen this way? 

There are just so many other issues involved in this argument-and probably belong in a different thread. I second Dumpster.

Entirely different ball of wax here. 

I don't know about the vast majority of proponents of gay marriage, but I know I don't fall into the category you described.  I think coredump is right that this is a topic for another thread, but, just to say, nothing about consensual polygamy between adults presents a problem for me.

I think the question belongs in this thread beacause I think the quesiton of "why two" helps to shed some light on a natural law definition of marriage.

So I'll put this question to proponents of gay marriage who believe that marriage ought to be between only two persons:

Why two?

(and Paul, I know I'm changing the subject a bit from your other post... I just need some time to think about the points you raise... they're good ones... )

The only problem I have with polygamy is this:

as defined in the dictionary: the practice of having more than one spouse, esp. wife, at one time.

If a a few people want to LOVE eachother, create an EQUAL opportunity/empowering relationship....go for it....i don't mind if they want to bump uglies or do whatever it is they want to do in their civil union/marriage.  the problem I have with polygamy is when it involves this sickening chain of hierarchy where there are a few poor little 13-15 year old girls that are too brainwashed to know what's going on....to me, unconsensual.....that's my issue with polygamy. (exploitation, opression?)

So, I am a proponent of gay marriage, and I don't have a problem with polygamy as long as the sicko older man/or woman (usually wearing the glasses with the cross bar thingy) stay away from young GIRLS/BOYS.....  I'm hoping this is an extreme case of polygamy that we see profiled on tv most often...i.e. David Koresh (sp?) and friends

This being said, I'm not a proponent of two-person unions that harbor the same type of behavior...no matter what the sex of either participant.

As I stated earlier, this is what Bennet brought up in his interview.  In essence, the argument is we can't change the definition of marriage because if we change it a little for gays, what says we can't be forced to change it more for polygamists?

Jim addressed this when he brought up the point that it has already been changed (with regards to race).

Arguing that we cannot begin change because we cannot limit the change is a misdirecting argument and does not address the issue at hand. 

Here is some info on a MA state statute that encapsulates the status of interracial marriage in this country around 100 years ago.  And it also stands as proof that laws regarding marriage can be changed without the whole country sliding into a moral wasteland filled with lustful polygamists.

Text

Part II. Real and Personal Property and Domestic Relations

History

Massachusetts State Senator Harry Ney Stearns sponsored the 1913 Law on March 7, 1913. The bill was signed three weeks later by Governor Eugene N. Foss. No record of the state Sanate debate has been found, so the motivation for the law is unknown.

Some legal experts have argued that the original purpose of the legislation was to block interracial couples from states that banned interracial marriages from going to Massachusetts to get married. Most states prohibited interracial marriage in 1913, but Massachusetts had legalized interracial marriage in 1843. These experts note that the law was enacted at the height of a public scandal over black heavyweight boxer Jack Johnson's interracial marriages and suggest that the law was partially a reaction to the Jack Johnson affair.^{[2] [3]}

On the other hand, Massachusetts Attorney General Thomas Reilly and others in the Attorney General's office have stated that the law had nothing to do with race.^[4].

Have a great weekend, everyone!

I'll just leave you with this question:

Y2?

I see your quote from George explicitly mentions 2.  Why does he define it as 2?

The answer that leads to the support of banning gay marriage is 2 because that is what it takes to procreate.  Therefore if procreating is the purpose of....yada yada yada.

It is only the people against gay marriage who seem to raise the Y2 discussion.  Again, this stems from the "we can't start making changes or where will it stop?" argument.  To those who are in favor of gay marriage (or at least can't come up with a justifiable reason to deny it) this is not an issue.  It would be like if when the issue of making interracial marriage legal people argued against it because if we allow blacks and whites to marry we'll have to start letting gay people marry.  Obviously, that didn't happen.

Since nobody has answered what I've been trying to get the debate centered on, and that's the issue of the constitutional amendment - not gay marriage - I'll assume that NOBODY believes this is an issue that should be decided at the federal level with an amendment to the Constitution.  I'm glad we all agree on that, it makes me feel warm and fuzzy inside.  

Or is that the Clif bar I just ate?