Will California deny peoples' rights in November?

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Re: Will California deny peoples' rights in November?

Postby Arvegil » Fri Mar 29, 2013 8:04 am

AlexSnitzel wrote:Oh ok then. Well then I clearly don't know as much as you. :)


And I repeat: I believe SSM is an idea whose time has come. It is time for state legislatures to man up and do their jobs, and not default on it. Because SSM is properly a matter for state domestic relations law and not federal Constitutional law.
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Re: Will California deny peoples' rights in November?

Postby AlexSnitzel » Fri Mar 29, 2013 8:11 am

Eh, even though I don't know the particulars of the law, all I can do is echo Swordsman. I know what is right and what is not right. Having neighbors go out and vote on the legal status of my relationship is not right, even though it may be legal. If each state left it up to their courts and not popular vote, and it didn't take X number of years to do that, I'm all for that. If not, do it Federally, and if the law doesn't allow for that, change the law.
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Re: Will California deny peoples' rights in November?

Postby AlexSnitzel » Fri Mar 29, 2013 8:44 am

portia wrote:I am sure that South Caroline would be allowed to refuse to allow same sex marriages to take place within its borders (for a while), but not to fail to recognize marriages made eleswhere.


My question about this is, and sorry for the DP, in this situation, for the couple that traveled to say, MD to get married, and then returned home to SC, do I understand correctly that that couple would then enjoy all the federal benefits of marriage, but not the state benefits? So effectively a reverse of couples' current situations in states where SSM is legal? I ask because, as I have mentioned before, I have more than a little vested interest, being half of a bi-national same-sex couple.
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Re: Will California deny peoples' rights in November?

Postby portia » Fri Mar 29, 2013 6:29 pm

People have traveled to other states to get married, for a long time (MD, NV, etc). If DOMA is declared unconstitutional, then the marriages are good, just as heterosexual couples marriages would be.

If DOMA is not declared nconstitutional (I find this difficult to imagine, but for the sake of argument), the SC would not have to recognize the MD marriage of a couple who live in SC. So, that SC couple would not have marriage rights in either fed or SC law.

As to your comment that you know what is right, I have two responses:
State or federal government can pass laws that are idiotic, but until they are challenged in court or are abandoned by the legislature, they are the law. Being "right" has no particular necessary relationship to "the law."
And, there are a lot of opinions on what is right, and why. No matter how sure you are that your opinion is "right," you probably do not have to go too far to find a different opinion, especially if you go outside of this country.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Mon Apr 01, 2013 3:51 pm

AlexSnitzel wrote:I know what is right and what is not right. Having neighbors go out and vote on the legal status of my relationship is not right, even though it may be legal. If each state left it up to their courts and not popular vote, and it didn't take X number of years to do that, I'm all for that. If not, do it Federally, and if the law doesn't allow for that, change the law.


There are a lot of people out there who are just as convinced that they "know what is right and what is not right," and have a version of the same that conflicts with yours. Ideally, it is the job of the various legislative bodies (both state and federal), to decide what is best for the polity, keeping in mind that not everyone will agree.
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Re: Will California deny peoples' rights in November?

Postby Swordsman_Of_The_Tower » Mon Apr 01, 2013 5:29 pm

Arvegil wrote:
AlexSnitzel wrote:I know what is right and what is not right. Having neighbors go out and vote on the legal status of my relationship is not right, even though it may be legal. If each state left it up to their courts and not popular vote, and it didn't take X number of years to do that, I'm all for that. If not, do it Federally, and if the law doesn't allow for that, change the law.


There are a lot of people out there who are just as convinced that they "know what is right and what is not right," and have a version of the same that conflicts with yours. Ideally, it is the job of the various legislative bodies (both state and federal), to decide what is best for the polity, keeping in mind that not everyone will agree.



Good let the state legislatures decide.

Narrows down the job search to states that exist in 2013.
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Re: Will California deny peoples' rights in November?

Postby portia » Tue Apr 02, 2013 8:20 am

I do not know whether SSM is "right" or not.
But what I do know is two things:
1. It is certainly none of my business how other people live their lives, since it doesn't affect me!, and
2. Our laws provide for equal treatment unless there is a very good reason--at least-- to do otherwise. I cannot find any articulable reason not to allow same sex couples to marry. So, we should allow it.

The decision on whether it is right or not is far, far above my pay grade.
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Re: Will California deny peoples' rights in November?

Postby Swordsman_Of_The_Tower » Tue Apr 02, 2013 8:51 am

portia wrote:I do not know whether SSM is "right" or not.
But what I do know is two things:
1. It is certainly none of my business how other people live their lives, since it doesn't affect me!, and
2. Our laws provide for equal treatment unless there is a very good reason--at least-- to do otherwise. I cannot find any articulable reason not to allow same sex couples to marry. So, we should allow it.

The decision on whether it is right or not is far, far above my pay grade.



I can answer 2.

"Gay people and their "lifestyle choice" are icky and I don't like them"

The new gem floating around the internet is the usual "I don't hate them because I disagree with their lifestyle choice."

Sure ya do. Either that or you are terrified of your own latent tendencies.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Tue Apr 02, 2013 10:04 am

portia wrote:I do not know whether SSM is "right" or not.
But what I do know is two things:
1. It is certainly none of my business how other people live their lives, since it doesn't affect me!, and
2. Our laws provide for equal treatment unless there is a very good reason--at least-- to do otherwise. I cannot find any articulable reason not to allow same sex couples to marry. So, we should allow it.

The decision on whether it is right or not is far, far above my pay grade.


Problem is, here is the standard of review, as articulated by a sympathetic Court in Anderson v. king County:

Plaintiffs have not established that gay and lesbian persons constitute a suspect class or that the fundamental right to marry includes the right to same-sex marriage. Accordingly, applying an analysis under article I, section 12 that is
coextensive with that under the equal protection clause, the appropriate standard of review is rational basis review.

Under rational basis review plaintiffs have the burden of proving that the classification drawn by the law is not rationally related to a legitimate state interest. DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d 919 (1998). The statute is presumed constitutional. Heller v. Doe, 509 U.S. 312, 319, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993); State v. Shawn P., 122 Wn.2d 553, 561, 859 P.2d 1220 (1993). Under the rational basis standard, the court may assume the existence of any conceivable state of facts that could provide a rational basis for the classification.


That darned " the court may assume the existence of any conceivable state of facts that could provide a rational basis for the classification" is a tough standard. Basically, even though you and I may agree that we can find no reason, the legislature is entitled to deference if it can articulate a "not clearly insane or thinly veiled attempt to invoke a highly scrutinized class" reason. The majority in that case was highly skeptical of the "defense of traditional marriage and child production" reasoning, but nevertheless felt rightly compelled to uphold the law.

Fortunately, this law has been changed, first through a legislative act, and then through an initiative which confirmed it. We are the only state where one can smoke reefer at a gay wedding reception. Go us!
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Re: Will California deny peoples' rights in November?

Postby portia » Thu Apr 04, 2013 8:00 pm

Well, yes. I was simplifying.
The problem is that cases on appeal are based on the evidence that comes out at the trial. In the past, some courts could get away with imagining something--whether or not it was based on evidence-- that might justify the Legislature's decision. But not with this case.
I have been listening to the arguments and I have not yet heard anything--based on evidence-- that would meet the rational reason standard. All I have heard is that it would upset people who thought one thing about marriage. But that thing they thought about marriage --one man and one woman-- is followed in only parts of the world, and for only parts of history. (What do we tell the Episcopalian church members who attemd church with their several wives, in--for example--Africa?)

So, I do not think that the Supreme Court will go running off the rails on this thing. I think they will prbably limit the Prop 8 decision to CA, and simply overrule DOMA, but not go any further.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Fri Apr 05, 2013 9:03 am

portia wrote:Well, yes. I was simplifying.
The problem is that cases on appeal are based on the evidence that comes out at the trial. In the past, some courts could get away with imagining something--whether or not it was based on evidence-- that might justify the Legislature's decision. But not with this case.
I have been listening to the arguments and I have not yet heard anything--based on evidence-- that would meet the rational reason standard. All I have heard is that it would upset people who thought one thing about marriage. But that thing they thought about marriage --one man and one woman-- is followed in only parts of the world, and for only parts of history. (What do we tell the Episcopalian church members who attemd church with their several wives, in--for example--Africa?)

So, I do not think that the Supreme Court will go running off the rails on this thing. I think they will prbably limit the Prop 8 decision to CA, and simply overrule DOMA, but not go any further.


Well, that would be both the path of least resistance and consistent with federalist principles.
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Re: Will California deny peoples' rights in November?

Postby portia » Sat Apr 06, 2013 7:51 am

Very true, and the list of cases where the Court does that is pretty long.
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Re: Will California deny peoples' rights in November?

Postby portia » Wed Jun 26, 2013 7:42 am

Ok, now we know.

DOMA is declared unconstitutional, to the extent that if soemone is married in a state where same sex marriage is legal, the feds have to recognize the mariage. I do not know whether the legally married state will follow the couple if the move to a state where same sex marriage is not legal. There may be something buried in the language, but no commentators have pointed out anythng, yet.

As to Prop 8, the court said that the proponents do not have standing, and sent the case back to the 9th Circuit.

I am of two minds on the lack of standing. On the one hand, the people who voted for it are "clients" of the Attorney General and where does he/she get off saying I "abandon" the my clients and the case and will not defend what my clients have decided? But, on the other hand, there are plenty of stupid, unworkable or unconstitutional referenda or ordinances passed, and this might deter those efforts, if the attorneys for the government say that they will not defend them in court as they have no chance of survival. It will save time, effort and taxpayers' money.
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Re: Will California deny peoples' rights in November?

Postby Minardil » Wed Jun 26, 2013 10:45 am

DOMA is declared unconstitutional, to the extent that if soemone is married in a state where same sex marriage is legal, the feds have to recognize the mariage. I do not know whether the legally married state will follow the couple if the move to a state where same sex marriage is not legal. There may be something buried in the language, but no commentators have pointed out anythng, yet


Doesn't the Full Faith and Credit clause of the Constitution require that all states recognize as valid a contract that was legally valid in another state? I suppose these states could still refuse to recognize same sex marriage ceremonies conducted WITHIN that state as valid, but I'd think they'd have to recognize same sex marriages conducted in other states, just as they recognize hetero marriages from other states.

But then, that's just reasonable rational thinking, I suppose the people fighting this losing battle of the Culture War will try to drum up some justification for ignoring common sense, Supreme Court, Article IV and Amendment 14 of the Constitution, etc. . .
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Re: Will California deny peoples' rights in November?

Postby Voronwe_the_Faithful » Wed Jun 26, 2013 2:05 pm

Minardil wrote:Doesn't the Full Faith and Credit clause of the Constitution require that all states recognize as valid a contract that was legally valid in another state? I suppose these states could still refuse to recognize same sex marriage ceremonies conducted WITHIN that state as valid, but I'd think they'd have to recognize same sex marriages conducted in other states, just as they recognize hetero marriages from other states.


Unfortunately, that is the part of DOMA that was NOT struck down. All of the reports saying "DOMA is dead" and language like that are inaccurate. Section 3 of DOMA, which provided that for the purposes of federal benefits marriage is defined as being between one man and one woman, has been declared unconstitutional, and thus is "dead". However, Section 2, which provides that states are not required to recognize same sex marriages performed in other states, was not challenged in this case, and is live and well. There are challenges to Section 2 under the Full Faith and Credit clause that may well wind their way to the high court, if it doesn't get repealed first.

Of course, if the high court eventually rules that it is unconstitutional for any state to deny same sex couples the right to marry (as I think is likely, though it will be some years before it happens), it would become a moot point.
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Re: Will California deny peoples' rights in November?

Postby portia » Wed Jun 26, 2013 2:52 pm

That second section was part of what has bothered me about DOMA from the beginning. The Constitution says "full faith and credit" must be given to judgments, etc from other states, but it also says that Congress may enforce this by suitable laws.

IMO a law that says that this particular law does NOT have to be given full faith and credit does not seem to me to be what the Framers intended. Congress is not given the power to destroy the clause. But, yes, we will have wait for another challenge before the rest of the law can be addressed.

Another comment:

I am sure that there are people wh simply can't imagine the concept of "same sex marriage." That would not be a surprise, as most of us have grown up in a world where that topic didn't come up.
But. . . . "we have always done it this way," or "if it was good enough for granpa, it is good enough for me" are NOT reasons to kepp a law that puts people in a disadvantaged position. There may be such a reason, but those are not it.

The supposed reasons were presented in trial court in CA, and none stood up to the facts.
Do I need to list them all, again?

If we examine the reasons for not allowing a same sex union to be callled a marriage, they do not hold up. even with a very easy standard, there are not enough reasons for the law.
When have we allowed "it has always been done this way" to stop a civil right? Not for race, not for gender.

If someone starts sloganeering at you aganst same sex marriage, resist the tempation to sloganeer, back. Instead ask "why?"
Why/how will it hurt traditional marriage?
Why will it hurt children?
and so on.
I am willing to bet you will not get answers, just more slogans.

Another thought:

Someone on TV said that Prop 8 was still the law in CA. Kammala Harris said they are "wrong."
I read a commentary on this that pointed out that the Trial Court's order applied to the parties, and this was not a class action. Harris pointed out that the responsible state agencies were parties and they were directed to allow same sex marriages. If that is correct, I would say that the agencies would be required to issue licenses to all applicants. The article I read stated that the briefings from all parties assumed that the injunction applied to all non-party same sex couples.

My practical thought is that it would be a brave county clerk, who does not want to keep his/her job, who refused to issue a license to a non-party couple.
Last edited by portia on Thu Jun 27, 2013 10:07 am, edited 1 time in total.
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Re: Will California deny peoples' rights in November?

Postby portia » Wed Jun 26, 2013 5:33 pm

And another set of comments:

Now the marriage INequality story is changing again. The talking point is now that the USSC doesn't "have jurisdiction" to change the rules on marriage (!)

1. What do they say about the voters in the states that have legalized same sex marriage by popular vote or vote of the Legislature?

2. What do they say to the people who do not believe in the devine nature of the person whom they claim "blessed" marriage by his presence?

3. What do they say to the people whose marriages were entirely civil? No religion involved?

Stay tuned; next week there will be new talking points.

Marriage is a social construct to encourage people to enter into stable relationships for the benefit of their property and children. The idea that it was all hatched in the mind of God is hilarious.
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Re: Will California deny peoples' rights in November?

Postby Minardil » Thu Jun 27, 2013 9:13 am

If someone starts sloganeering at you aganst same sex marriage, resist the tempation to sloganeer, back. Instead ask "why?"
Why/how will it hurt traditional marriage?
Why will it hurt children?
and so on.
I am willing t bet you will not get answers, just more slogans



This has been exactly my approach for a long time, and you are right, they NEVER have answers as to how, specifically, same sex marriage harms individuals or society. All you ever get are vague mumblings about how it has never been permitted before, so it MUST be bad for society. To which I say again, great, if it's so bad, you SHOULD be able to provide examples of how and why.
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Re: Will California deny peoples' rights in November?

Postby Cerin » Sat Jun 29, 2013 10:03 am

portia wrote:I am sure that there are people who simply can't imagine the concept of "same sex marriage."

It isn't a question of imagining, it is a question of logic. 'Gay marriage' is an oxymoron. Two people of same sex can't engage in the physical joining that has ever been accepted as one of the two definitional aspects of the concept 'marriage' -- a practical/public union of lives, a physical union of bodies in the act of reproductive sex (from whence we all come). Two people of same sex can't engage in that act, and therefore they can't marry in the physical sense. The notion of 'gay marriage' is an affront to common sense, not to the imagination.


If we examine the reasons for not allowing a same sex union to be callled a marriage, they do not hold up.

They do hold up logically, but not in the face of the very clever positioning of the question as one of rights. Gay people have always had the right to marry. Obviously they couldn't marry each other because 'marriage' described a two gender union. They have now essentially been allowed a right that no one else has historically enjoyed -- to legally change the meaning of a word so that it suits themselves.


Why/how will it hurt traditional marriage?
Why will it hurt children?

It will confuse the hell out of children.

It denies the importance of a fundamental truth, which doing is a profound stupidity, and makes idiots of us all.
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Re: Will California deny peoples' rights in November?

Postby oldtoby » Sat Jun 29, 2013 12:46 pm

It will confuse the hell out of children.


Children are smarter than you think. :wink:
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Re: Will California deny peoples' rights in November?

Postby Minardil » Sat Jun 29, 2013 6:33 pm

Cerin, if same sex marriage were "impossible", as you say, then you wouldn't need to forbid it. And children are "not" confused by it at all. Indeed in my experience they don't seem to even CARE. This is why you have already lost.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Sun Jun 30, 2013 8:07 am

Cerin wrote:
portia wrote:I am sure that there are people who simply can't imagine the concept of "same sex marriage."

It isn't a question of imagining, it is a question of logic. 'Gay marriage' is an oxymoron. Two people of same sex can't engage in the physical joining that has ever been accepted as one of the two definitional aspects of the concept 'marriage' -- a practical/public union of lives, a physical union of bodies in the act of reproductive sex (from whence we all come). Two people of same sex can't engage in that act, and therefore they can't marry in the physical sense. The notion of 'gay marriage' is an affront to common sense, not to the imagination.




Perhaps you should dump the historical background, and look at its strict legal implications. In that case, it is really a matter of a certain set of economic and quasi-contractual relations between two individuals.
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Re: Will California deny peoples' rights in November?

Postby Cerin » Sun Jun 30, 2013 8:37 am

Minardil wrote:Cerin, if same sex marriage were "impossible", as you say, then you wouldn't need to forbid it.

You're quite right. A thing is what it is because of what it is, not because of what it is called. The word 'marriage' has existed because the thing it described -- the union of man and woman as husband and wife -- is a fundamental reality with unique significance in the world; it will continue to be so, regardless that we have, in our idiocy, deemed the concept offensive to the gay community. No man will ever be able to really marry a man, no woman a woman. Apples would not suddenly turn into oranges if we stupidly decreed for misguided reasons that apples be called oranges, and gay couples will be no more 'married' now, than they were last week (except in the legal sense). We don't need to forbid gay couples to marry; their anatomy forbids it. Changing all the laws in the world will not alter that reality.
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Re: Will California deny peoples' rights in November?

Postby portia » Sun Jun 30, 2013 8:49 am

Cerin, you are picking out only one of many reasons and uses of marriage. Your "definition" is not in fact anything like complete. The purpose you see is merely one of many.

When same sex relationships were criminalized, same sex people married, often each other, for "cover." They didn't have children, which their neighbors just considered bad luck or "God's will" and they carried on with same sex partners, under cover. Nevertheless, many of these marriages served other uses of marriage: they helped stabilize society, by giving men, and sometimes women, who were at loose ends, a place to go home to; they clarified inheritance--at least as to the partners-- and adoption of children who needed a home was easier.

Children are confused, now, because their parents are treated differently from other people's parents. The kids do not see a difference in their parents. Letting same sex parents marry will reduce the confusion of children.

Being bothered by same sex marriage is a CHOICE. If you do not care or decide not to care, it will not affect you.

And to all these complaints about "religious freedom," just substitute "race" in place of "same sex marriage" and you will see why those argumentswill go down in flames. If a florist says to a mixed race couple "I do not beive in race mixing; I will not do business with you, we know what will happen. Yet this is the same argument that was raised in the 50s and 60s. There is no difference. People will either get used to serving some group of whom they do not approve, or get into something else.

Same with schools. If you do not agree with something that your school is teaching your kids, teach them what you believe. Or Change schools. That is what I did.
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Re: Will California deny peoples' rights in November?

Postby Cerin » Sun Jun 30, 2013 9:41 am

portia wrote:
Being bothered by same sex marriage is a CHOICE. If you do not care or decide not to care, it will not affect you.

What an astonishing, appalling statement. I am bothered by calling gay life partnerships 'marriage' because it is a bald faced lie. I think collectively denying a fundamental truth is wrong, and deeply disturbing. As individuals, we are who we are, we perceive things as we do, because of a lifetime process of choices, a lifetime development of our understanding. We could not turn that off like a faucet, even if, for some bizarre and unimaginable reason, we would want to.

Yet you suggest that my deep-seated feelings about this or any issue, based on my understanding developed over my lifetime, are a matter of choice?! That I could decide not to care about the things I care about?! That if for some unimaginable reason I would want to decide, and were able to decide, not to care about the things I care about, that they would then cease to affect me?!!! How bizarre! I must disagree in the strongest terms. You may regard your own views and feelings about things as a matter of choice; you may, somehow, have convinced yourself that you can choose what you care about, that you can decide not to care about those things, and that making that choice actually isolates you from the affects of those things, but please, do not take the liberty of assuming that I operate in the same way. I disassociate myself from these ideas in the strongest possible terms. I find them bizarre and repugnant.
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Re: Will California deny peoples' rights in November?

Postby Minardil » Mon Jul 01, 2013 5:55 am

You're quite right. A thing is what it is because of what it is, not because of what it is called. The word 'marriage' has existed because the thing it described -- the union of man and woman as husband and wife -- is a fundamental reality with unique significance in the world


No, Planck's Constant is a fundamental reality.
The First Law of Thermodynamics is a fundamental reality.
The existence of the color Blue, as expressed by wavelengths of visible light between 450 and 495 nanometers, is a fundamental reality, although the concept of "blue" and the units of measurement employed to determine it are open to interpretation.

The institution of "marriage" as you have described it is a sociological construct. Marriage is not a physical requirement for biological reproduction (unmarried people make babies all the time). Nor is reproduction a universal result or component of all marriages (many marriages remain childless, either by choice or through infertility). Furthermore, the concept of what "marriage" is has never been constant through human history, nor is it constant today across cultures. Polygamy was once quite common, and remains common in many parts of the world. The idea of marriage being "one man and one woman" has been dominant in our society for a few centuries, true, but even that vision of marriage has shifted recently, as the former norm of "marriage for life" has been almost entirely abandoned and replaced with a new serial multiple marriage model, where individuals bond for shorter times before separating and establishing new marriages with new mates. This expansion of the franchise to same sex couple is simply another step in the constant evolution of this social construct. But you already know all that, we've been having this "dictionary" argument for YEARS.
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Re: Will California deny peoples' rights in November?

Postby portia » Mon Jul 01, 2013 6:28 am

Very well said, Min.

The old social construct worked well for a while, but it now needs to be expanded, ironically, for much the same reasons: to extend the benefits to new people.

And, Cerin, the list of things that are legal, but bother me, is pretty long. Too bad. I am a grown up and do not feel the need to order the world according to my prejudices, stereotypes and what makes me comfortable..
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Re: Will California deny peoples' rights in November?

Postby Minardil » Mon Jul 01, 2013 11:13 am

Yet you suggest that my deep-seated feelings about this or any issue, based on my understanding developed over my lifetime, are a matter of choice?! That I could decide not to care about the things I care about?!


Not at all. We're saying that YOU don't get make choices for EVERYBODY based on YOUR personal feelings. We're saying that the fact that YOU are offended by something isn't enough of a reason to deny other human beings the basic right to choose for themselves how they will live their own lives, especially since those choices being made by others for themselves harm YOU in no other way apart from you being faced with the possibility that you MIGHT have to change your mind about something that makes you uncomfortable.
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Re: Will California deny peoples' rights in November?

Postby Arvegil » Tue Jul 02, 2013 12:00 pm

Cerin wrote: I think collectively denying a fundamental truth is wrong, and deeply disturbing.


In this particular case, reasonable people can disagree on exactly what the "fundamental truth" is in this situation. I view the "fundamental truth" of marriage not to be a set of historical and religious principles, but a series of quasi-contractual obligations and rights. It is not the government's job to provide historical gravitas to marriage; however, it is the government's job to determine the scope of marriage, and who is entitled to that particular bundle of social rights and obligations. Looking at it that way, marriage, and who is entitled to it, is a matter of very contemporary public policy and not a matter to be decided on the basis of a particular socio-religious tradition.
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Re: Will California deny peoples' rights in November?

Postby portia » Tue Jul 02, 2013 4:22 pm

I would go farther. I would remove the government from deciding what marriage is and who can enter into it. I think the most government OUGHT to do is maintain a registration of who claims to be married (Very much like a real estate recording service) and if the people decide to divorce they can record that, too (and a judgment if property rights are involved, or children). That way there would be a central spot so that people could tell whether another person is married.

I suppose that the only requirement of who can marry would be that everyone involved would have to be human beings of some "mature" age.
Last edited by portia on Wed Jul 03, 2013 8:11 am, edited 1 time in total.
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