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Prop 8 Ruling CA - Bad from O-ist POV

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Well, there has been a stay on the ruling. California is not permitted to issue marriage lisences to same sex couples.

This I find to be very disturbing. Just because someone wants to take this to the Supreme Court, California has to issue a stay on it. I find this to be a very rotten double standard.

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There is not a single good argument that marriage is "defined" as between a man and a woman, any more than there is a good argument that marriage is "defined" as between people of roughly the same age

Only democracy, the rule of law in general. His argument is specious. At this moment in time, his political movement happens to think gay marriage should be allowed. Didn't my reference to Obamacar

Despite the extremely verbose and wide-ranging post on zillions of topics of law and modern politics, I do not see a shred of evidence to support this assertion. Not a single statement quoted from the

If marriage is a fundamental right, then why are we required to get a government document specifically sanctioning such right, in each case?

The question here is "what is marriage?" It must be answered before we can have a rational discussion.

Marriage, in the eyes of the law, confers all sorts of special rights to individuals who choose to, and are qualified to marry. That seems to me a violation of equal protection.

Are we arguing here that homos. in a sexual relationship should be conferred those same special rights, over other citizens? At least, and at the very least, you can argue that the value of marriage as a means to encourage child-bearing has some beneficial effects on society. For instance, an unstable home life is potentially causative to criminal behavior in later life, etc. I know of no similar such factor arguing in favor of homos. marriage.

I would rather see the government provide, at most, a pro-forma contract, perhaps call it a Reciprocal Assignment of Next-of-Kin, in which two individuals mutually agree to confer upon each other certain reciprocal "rights," such as hospital visitation, health care sharing (should health insurance companies voluntarily agree to recognize such rights), end of life decisions, etc. (I'm using the term "rights" in an imprecise manner, here, but you get what I mean).

If some choose to be married in the manner in which they feel is appropriate (church, etc.) then they can be "married" in a socially-recognized ceremony, separate and separable from their gov't-recognized RANK contract. That way, the right - and recognition - of "marriage" are not officially sanctioned by the government, and we are free to recognize what we want as "marriage" or some farcical sham, as each of us wish.

Just a thought.

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If marriage is a fundamental right, then why are we required to get a government document specifically sanctioning such right, in each case?
For the same reason that real property, which is a fundamental right, must be documented with the government. The agreement (marriage or property transfer) is objectively documented.
I would rather see the government provide, at most, a pro-forma contract, perhaps call it a Reciprocal Assignment of Next-of-Kin, in which two individuals mutually agree to confer upon each other certain reciprocal "rights," such as hospital visitation, health care sharing (should health insurance companies voluntarily agree to recognize such rights), end of life decisions, etc.
They do, and it's called "marriage". So you only object to the word "marriage" and suggest that the name "marriage" should be abolished in favor of RANK?
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For the same reason that real property, which is a fundamental right, must be documented with the government. The agreement (marriage or property transfer) is objectively documented.

For the purpose of protecting it (marriage) from what, exactly?

What privileges do you believe should be conferred upon married people that are not conferred upon others? And, why?

Edited by agrippa1
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So you only object to the word "marriage" and suggest that the name "marriage" should be abolished in favor of RANK?

I never suggested abolishing the term; I suggested preserving it, by maintaining the established definition. In fact, I know of no more effective method of abolishing a term than changing its definition to meet the arbitrary whim of the user.

I object to the changing of the definition of the term "marriage," to include any arbitrary relationship between two human beings. Or do you have some definition in mind that includes homos. couples but excludes other couples of humans? What, exactly is it about heteros. and homos. couples, in your mind, that makes them both candidates for inclusion in the concept "marriage," that excludes other humans who might wish to enter into a contract conferring similar reciprocal rights to another human, whether it be a wife, husband, best friend, son, second cousin etc.?

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I object to the changing of the definition of the term "marriage," to include any arbitrary relationship between two human beings.
The term "marriage" does not exclude gay couples, so there is no change in definition involved. The (reversed) legal error, in California, was the law which prevented gay couples from exercising their right to marry, when the concept "marriage" does apply regardless of race, religion, age, national origin, or any other irrelevant factor.
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I object to the changing of the definition of the term "marriage," to include any arbitrary relationship between two human beings.

You might want to check a dictionary - because relationships between humans are already arbitrary.

1: depending on individual discretion (as of a judge) and not fixed by law <the manner of punishment is arbitrary>

- and -

3 a : based on or determined by individual preference or convenience rather than by necessity or the intrinsic nature of something

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Do you understand the distinction between "man-made" and "arbitrary" in Objectivism? See OPAR ch. 1 for explanation of "man-made", and ch. 5 for "arbitrary".

I am well aware of the Objectivist philosophical definitions of arbitrary. Marriage is, etymologically, man made.

I do not think agrippa1 is using the term arbitrary in the epistemological context.

We're talking about the relationships between humans - between Men Qua Man. As fully functioning adults, those relationships are chosen.

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What, exactly is it about heteros. and homos. couples, in your mind, that makes them both candidates for inclusion in the concept "marriage," that excludes other humans who might wish to enter into a contract conferring similar reciprocal rights to another human, whether it be a wife, husband, best friend, son, second cousin etc.?

I'd like to know the answer to this question too. Where is the distinction made in the definition itself?

And if one is to argue for a legal convenience, then where ought the distinction be made in the legal definition?

Edited by freestyle
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Against denial of existence.

Huh, that's a pretty good answer, but you'll have to back that up by stating the consequences of someone else denying that your marriage exists. It seems that what you are defending against is the denial of existence in the context of the "rights" demanded by the government to be conferred upon married couples by virtue of the existence of their marriage. Any way you slice it, this is gov't forcing us to treat people as "married," regardless of our view of the legitimacy of that status.

My objection to governmental recognition of "marriage" is that the government proceeds, from that definition, to imagine all manner of conditions associated with it, that are not explicit in the original verbal agreement; while at the same time ignoring most of the condition that are explicit. For instance, government will ignore unfaithfulness in a marriage, and maintain that even if one party violated the explicit conditions of the verbal contract, the other party may still be forced to provide support, against his or her will, for the party that violated the contract. In some cases, the government may decide to recognize a contract that was never even entered into by either party (i.e., "common-law marriage"), as a basis for punishing one or the other party.

None. It is simply a legal convenience.

Convenient, for what? "A legal convenience" implies that some benefit is being bestowed upon these individuals, by the state (i.e., the arbiters of legality), in recognition of the couple's status. So again, what privileges do you believe should be conferred upon them?

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I am well aware of the Objectivist philosophical definitions of arbitrary. Marriage is, etymologically, man made.

I do not think agrippa1 is using the term arbitrary in the epistemological context.

We're talking about the relationships between humans - between Men Qua Man. As fully functioning adults, those relationships are chosen.

In line 1, sentance 2, I failed to notice that my spell checker replaced my butchered attempt at spelling epistemologically with etymologically. The line should have read that marriage is man made in the epistemological sense.

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Convenient, for what? "A legal convenience" implies that some benefit is being bestowed upon these individuals, by the state, in recognition of the couple's status.

Not really. All "a legal convenience" means is that the State has established a simple method for identifying the status of the couple. It's a time and effort saver over requiring a lengthy marriage contract to be drawn up every time two (or more) consenting adults wish to establish a communal state between themselves.

There should be NO benefit conveyed to the couples by "being married" that would not otherwise be conveyed by the couples establishing a legal contract. That the Government provides such benefits is a separate moral issue unrelated to the state of marriage - because the Government shouldn't be conveying ANY special benefits to ANYONE.

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There is perhaps one way that Judge Walker's ruling can be considered unconstitutional..

Unfortunately, the 10th amendment says that anything not left up to the federal government can be left up to the states. Which is contradictory to the premise of individual rights, I understand that, but not many conservatives do.

Many conservatives who are otherwise indifferent to gay marriage rights can always bring up that this ruling was made without reference to state's so-called rights.

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Unfortunately, the 10th amendment says that anything not left up to the federal government can be left up to the states.

No, the 10th Amendment states that states may legislate on issues not in the purview of the federal gov, nor prohibited to them by the Constitution. But this act is clearly prohibited to the states, by the Constitution, and that is the basis of the ruling:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (USC, 14th Am, Section 1)

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Back to this. I've thought about it some more.

I've realized that singles can be discriminated against because the issue of equal protection doesn't apply. The only essential characteristic to differentiate between single vs. couple is 'personhood'. 1 person vs. 2 persons. Equal protection rules prohibit the use of gender which is a non-essential characteristic. The idea is that gender is non-essential to marriage, so can't be the basis for differentiation. The government can rule whatever it wants concerning 'persons' and marriage - including special treatment and how many people can be involved etc.

Fine and dandy.

But gender is essential to marriage. Child bearing might not be, neither race, nor gender essential to roles - but that marriage is established in society because it is a long-standing tradition, that that tradition is based on the overwhelming historical and cultural correlation between monogamy and men and women bearing children together, and the fact that the legislative and constitutional process (i.e.: of the institution - State of California - that defines marriage) have said so all mean that gender is essential to marriage.

Jesus, you all scared me out of the argument the Conservatives have been using, but upon time, reflection, and reason, I've realized it's logically sound. Marriage in society is a gender-based institution. The vast majority of men and women would never engage in what marriage is with anyone if they weren't doing it with the opposite gender. Just because a minority can and does does not negate the essential role of gender in marriage. If it weren't for gender, marriage wouldn't exist except as a marginal institution for gays.

Society has instituted marriage because it feels that marriage is an institution of significance in society. It is significant because the vast majority of society is attracted to the opposite sex.

Granted, there's no good general argument for why gays should be prohibited from this institution. Their inclusion does not necessarily affect the position of significance of heterosexual marriage (well, as a religious institution maybe, which many believe marriage to be anyway, so I guess there's a general case there). Still, that doesn't affect the constitutional argument.

Gender might not be essential to roles within marriage, but that does not equate to gender being non-essential to marriage. Race might not be essential to marriage, as significant portions of all races marry in the essential spirit of the tradition, but that does not make gender somehow non-essential.

Honestly, just logically, for marriage according to the reasons why society instituted it, gender is essential. Men and women like living together. So gays do too? That doesn't make the majority situation necessarily discriminatory (constitutionally, I mean; I think it does generally). Marriage would be what marriage is if there were no gays, so the argument about discrimination fails.

Unfortunately, this new understanding of mine lends greater legitimacy to marriage. I see now why constitutionally marriage is legitimate in general. And so now I see why Judge Walker's argument is trash.

My bias was that I was okay with homosexual marriage and didn't see it as particularly differnt from heterosexual marriage. Nor did I see the need for a special legal status. But logically when viewed according to what marriage is as a societal institution - i.e.: why it even has a legal status - gender is essential. I had integrated this subconsciously, and knew this ruling contravened something, but I was too attached to my bias about marriage to recognize what was contradictory. In other words (subconsciously being too strong), I knew the reason was because of gender, but was unwilling to embrace that because it seemed wrong intutively because of my bias. So I danced around some other argument. The conclusion is the same though: use of judicial discretion to put opinion in the place of law.

A judge could just as easily pass a health care mandate by assuming that not buying health care is regulated commerce. The argument being that not buying necessarily implies future commerce because it is his opinion that society will definitely pay for this person's health needs at that time (this is Obama's actual argument, before it became that the mandate was just a tax). It may be true, even legally true, that society will pay for that person's health needs. A court might have even ruled that a law to the effect of providing free health care can't discriminate based on pre-existing conditions (irrelevant to the choice of having prior coverage, but to make a plausible parallel about equal protection). But it is not constitutionally true that society must pay for those needs, and therefore not buying insurance would not necessarily correspond to commerce, and cannot therefore be mandated through Congress's commerce powers.

When judges read whatever the f&*k they want into the constitution, that is bad, because it subverts the rule of law at a foundational, constitutional, level.

Jesus, that gender is not essential to marriage is his f&*king opinion! His cited precedents do no imply that, despite the camoflauge.

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I had no idea what the hell you were going on about, but I'm going to try my best to interpret it - you think society is the ultimate definer, and you think Judge Walker acted agaisnt this.

Your claim is that Judge Walker only gave "his opinion". By what basis are you insisting that Judge Walker was being no more objective than "society"? What makes "society's" opinion on marriage, that it precludes same-sex relationships, any less of an "opinion"? What are his "cited precedents" that contradict this premise? Last time I checked, the burden of proof is on the person making the claim - it's the burden of proof on people who say that marriage specifically precludes people of the same sex from marrying.

Your argument is, essentially, that because society wants marriage to mean what it does, that the definition of marriage should be democratically decided. As a result, you claim that Judge Walker's belief that gender is irrelevant to marriage is simply arbitrary.

Another argument you have is that, even if gays were no longer allowed to marry, marriage would still be what it is. You can say the exact same thing about straight people no longer being able to marry. Marriage doesn't stop being marriage, just because people aren't allowed to do it. A doesn't stop being A just because nobody does A.

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Society has instituted marriage because it feels that marriage is an institution of significance in society. It is significant because the vast majority of society is attracted to the opposite sex.

"Society" does not institute things. It is a concept, and as such cannot act. Individuals, on the other hand, can act, and do institute things. Your challenge is in showing how the opinions of some individuals are more justified than the opinions of others, without resorting to fallacies such as the appeal to majority, tradition, authority, etc.

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You're right, philosophically, but not legally. The structure of government as a means of expressing the constitutionally limited desire of a voting majority.

These flawed legal systems actually provide what liberty we have, and my premise is that this decisions harms liberty more than helps it. That the ruling is in favor, pragmatically, of liberty, doesn't justify the way it contravenes the institutional checks that ultimately preserve liberty by upholding a rational process for creating objective and transparent laws.

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You're right, philosophically, but not legally. The structure of government as a means of expressing the constitutionally limited desire of a voting majority.

These flawed legal systems actually provide what liberty we have, and my premise is that this decisions harms liberty more than helps it. That the ruling is in favor, pragmatically, of liberty, doesn't justify the way it contravenes the institutional checks that ultimately preserve liberty by upholding a rational process for creating objective and transparent laws.

You're putting the cart before the horse. The ruling serves the interest of individual rights and liberty on principle, not pragmatically. Preserving "the structure" of a society whether it respects individual rights or not is true pragmatism. Remember that the system is good ONLY insofar as it serves individual interests qua each person, not some aggregate of the majority of individuals' whims.

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You're right, philosophically, but not legally. The structure of government as a means of expressing the constitutionally limited desire of a voting majority.

These flawed legal systems actually provide what liberty we have, and my premise is that this decisions harms liberty more than helps it. That the ruling is in favor, pragmatically, of liberty, doesn't justify the way it contravenes the institutional checks that ultimately preserve liberty by upholding a rational process for creating objective and transparent laws.

But it does not do that. Judge Walker has done this entirely within the framework of the law.

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You're putting the cart before the horse. The ruling serves the interest of individual rights and liberty on principle, not pragmatically. Preserving "the structure" of a society whether it respects individual rights or not is true pragmatism. Remember that the system is good ONLY insofar as it serves individual interests qua each person, not some aggregate of the majority of individuals' whims.

This is a deeper discussion on the purpose of government, one which I've been having in the other topics, so I'll be brief.

Government is instituted to preserve rights. That is the moral way to protect rights in a large group of people - through government.

In order to remain moral, government must employ processes for establishing the law, and then properly enforce that law.

The system of laws in the USA and California generally do serve the purpose of protecting individual rights. I mean, the system itself does. There is a hierarchy here. The system is built out of the rights, and laws are built out of the system. You can't skip a step, is my point. You can try and change the system, but again you must do so properly. You can't pick and choose laws unless you have decided that you are in open rebellion because the whole system itself is greatly unjust.

As for the other issue, I've said that in particular there's no reason from my point of view to exclude gays from marriage. Moreover, an ideal form of government most certainly wouldn't have things get to this point.

But our government, that we do have today, has a concept of marriage. It comes from the majority. There wouldn't be a concept, or legal status of marriage without that majority's decision. This judges said gay marriage was protected under equal protection - one part of our system that's very good I think.

Unfortunately, because the system allows for things like marriage to be instituted because of majority will, then it allows the majority to define what that is.

Marriage is something to which gender is essential. Or at least, there are reasonable historic definitions to that effect, and the popular vote by the people basically sealed the deal.

The concern shouldn't be about whatever outcome is desired - that's pragmatism - the concern is the process, and whether it is moral. Our government is morally legitimate if not very very flawed. So we have to uphold its processes, even when the flaws are manifested. We are very free to participate in those processes and affect the outcome. This is in large measure why the system retains legitimacy.

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