SSM Because of Equal Protection? Begging the Question!

SSM Because of Equal Protection? Begging the Question!

Two commenters lately have been telling me that same-sex marriage (SSM) is a moral and/or legal necessity because of the importance of providing equal protection under the law.

I’m not sure how that explains it. Here’s why.

Equal protection means the law guarantees equal access to what society and law provide with respect to common goods, for example, housing, employment, voting, and so on. Now it’s clear that housing means the same thing to every person, regardless of color, creed, or sex. So does employment. So does voting. So when equal protection is granted, that means equal access to equivalent rights and privileges. It doesn’t mean equal access to dissimilar rights and privileges, for example equal access to apple orchards and bank vaults. That’s what equal protection under the law is all about, as I understand it.

So then, does marriage for same-sex couples mean the same thing as marriage for opposite-sex couples? Is same-sex marriage (for gay and lesbian couples) fundamentally equivalent to opposite-sex marriage (for straight couples), in the same way that voting is equivalent to voting, or housing is equivalent to housing, or employment is equivalent to employment (for all races, creeds, etc.)?

That’s what’s in dispute. Some say yes, some say no. If there’s one thing that’s indisputable in this debate, that’s it: that there’s dispute over the equivalence of man-woman marriage and same-sex marriage.

Now, if the two forms of relationship really are equal, then equal protection must surely apply.

If, on the other hand, I understand equal protection correctly, and if the two forms of relationship are not equivalent, then there’s no reason to think the law should afford persons equally protected access to them, any more than the law should guarantee equal access to our previously mentioned orchards and vaults.

So we have a dispute over whether opposite-sex marriage is equivalent to same-sex marriage. If my understanding of equal protection is correct (and please let me know if I’m wrong), then that entails that we have a dispute over whether the law should afford equal access to both kinds of relationships.

Thus when SSM advocates tell us that we should consider it a good reason to accept SSM, what they’re saying in effect is this:

“It seems to us that equal protection under the law means that we should grant SSM a status equal to opposite-sex marriage. Of course, for equal protection to be relevant in this case, SSM and opposite-sex marriage must be equal entities; otherwise equal protection wouldn’t apply. In order to build our case upon an equal-protection argument, then, we must assume that SSM and opposite-sex marriages are equivalent in all the relevant wasys. Given that set of assumptions, we can then move on to demonstrate that SSM and opposite-sex marriages are equivalent in all the relevant ways.”

That’s begging the question in the most extreme and obvious way possible.

The logical form of that refutation is valid. The only point at which it might be vulnerable is in my layman’s understanding of equal protection under the law. I’m no expert, so I could have gotten that wrong. If I’ve made some error there, please let me know so I can correct my misunderstanding and repudiate the argument I’ve built here upon it.

If, however, my analysis of equal protection is anywhere near accurate, then it seems an inescapable point of logic that using the equal-protection argument as a reason to adopt SSM is as question-begging as it could possibly be, and that persons who value rationality must drop it on pain of practicing manifest and wanton irrationality.

(I should make it clear what this post is not about. I have said nothing here about whether same-sex-married persons should be afforded equal protection under the law. My position on that is that I do believe in equal protection for persons in legally established unions. The law is the law. I am not sure equal protection has always been applied equitably, but to explain that would be to start a new topic, whereas I try to keep my posts on one topic as far as possible. This post is about whether an equal-protection argument can serve as a good reason to make same-sex marriages legal. )

132 thoughts on “SSM Because of Equal Protection? Begging the Question!

  1. That’s begging the question in the most extreme and obvious way possible.

    This is the problem with using equal protection as a basis for a discussion here. The above is true. What also is true is that the decisions for SSM based on equal protection are far more about the political/social climate than their merits based on the legal analysis. I think I could have written equally convincing decisions either for or against SSM based on equal protection even as a first year law student. Experienced judges would and did have even less trouble.

  2. I think what you’re saying, BillT, is that “equal protection” is a hammer that swings both directions, and the fact that it can be used to support SSM must be viewed in light of the fact that it can be used as easily to oppose SSM; which means in the end its probative value is zero, but it can at least be co-opted to provide some kind of legal/moral cover for those who want to be able to claim that the law is on their side.

    What that means is that if we were using equal protection as an argument for our position, we’d likely be guilty of the same error as SSM proponents.

    To my knowledge, no one on our side is making that mistake.

  3. Tom,

    Yes and no. The problem, I think. is one we’ve discussed here before. The nonstop political/social attack on traditional marriage has devalued it to the point where the true value of it has been lost. I think Girgic, Anderson, George have done an excellent job explaining it’s real value but reclaiming that societally is not achievable. Pretty clear case of the ramifications if losing the culture war. In an alternate world where the value of traditional marriage was still valued and understood the equal protection arguments would have sounded and been decided much differently.

  4. Here’s an “equal protection” argument for your consideration.

    I did part of an answer to the question Tomasked (“What’s True About Marriage That Makes It True That Same-Sex Unions Should Be Treated as Marriages?”) on a prior thread.

    The law isn’t concerned about spiritual unions, of course. Indeed, as I pointed out earlier, it’s not even concerned about sex, much less actual procreation, when it comes to marriage. So whatever it is the law’s recognizing, it’s demonstrably not either of those.

    As I noted on that prior thread, marriage law “was intended to address property and inheritance and raising children and other material things.” We could sum it up as ‘the founding of households’ – where one or more people live and eat together, separate from others.

    Naturally, the most common way this has happened is by a man and a woman leaving their parents and joining together in a new household. The intent is for this to be a long-term, indeed permanent, feature – cooking and eating meals with houseguests doesn’t make them part of your household, from a legal or tax or usually even insurance perspective.

    Certainly a group of people living together indefinitely, sharing their resources, have strong shared economic and legal interests. And as the household is “is the basic unit of analysis in many social, microeconomic and government models” there’s a reasonable basis for the law to take special note of households.

    A marriage is a specific way of forming a household, and is, given typical human biology, by far the most common. Indeed, other ways of forming households have been, historically, socially and often legally discouraged. But, from the law’s perspective, the household is generally of paramount importance. Indeed, a “common law marriage” is formed because a couple forms a household for an extended length of time, even if they haven’t gone through any ceremony.

    As I also noted on the other thread, over time legal marriage has “gotten tangled up with medical care, insurance, legal testimony, taxes, and so forth”. All critical factors for any household, but much of the legal framework for dealing with them is only available through marriage, period.

    Same-sex couples face all the same material issues that opposite-sex couples do – property, inheritance, medical care, insurance, legal testimony, taxes, etc. Many also face raising children, which is something that would seem to invite legal government support. So, from the legitimate legal purposes that legal marriage has come to implement, same-sex couples would seem to be just as suited as opposite-sex ones. And they don’t have the same benefits and protections of their households without marriage.

    I’d prefer civil unions, but the ‘defenders of marriage’ have chosen an all-or-nothing approach, and I from an equal protection perspective ‘nothing’ is much too low.

  5. As I noted on that prior thread, marriage law “was intended to address property and inheritance and raising children and other material things.”

    The intention of a law needs to be considered when evaluating equal protection. I’ve mentioned this before to SF and it seems correct. If a law is intended to be for people group X, in situation Y for the purpose of Z then anyone who doesn’t fit that criteria doesn’t qualify for equal protection.

    If marriage laws in some state weren’t intended to apply to SS couples then how can that law be in violation of equal protection law?

  6. As I noted on that prior thread, marriage law “was intended to address property and inheritance and raising children and other material things.”

    No. That’s what marriage has become. The original understandings which Girgic, et als have explored go beyond that. But, it is what it is. Those interested in tearing down society have won this round and maybe more. I hope they enjoy the fruits of their labors.

  7. Your argument has some interesting features to it. It has no particular merit with respect to marriage, but it could be used as an argument for civil unions. The fact that a lot of people reject civil unions along with same-sex marriage is hardly any reason to say it should apply to marriage instead of civil unions. It’s tantamount to, “Well, we’re having trouble convincing them this is a good reason to believe x, so let’s present it as a reason to believe both x and y!”

  8. I too am a laymen with respect to equal protection jurisprudence. Based on a few minutes of research it seems that the interpretation/application of the equal protection clause is unsettled. It seems it it not even necessarily always applied in the same way.

    Based on the trends it does seem likely that the Supreme Court will rule that SS”M” is a constitutional right because of 14th amendment equal protection. My hunch is that it will not be because of any claims of essential equivalency of same sex and opposite sex couples, but instead based on claims of moral equivalency. The claim will be that the equal protection of the law mandates all *morally* equivalent relationships be treated equally, and the argument will be made that same sex and opposite sex romantic relationships are morally equivalent.

    I find this possibility to be particularly ominous. It might just be the worst case scenario.

  9. SteveK –

    If marriage laws in some state weren’t intended to apply to SS couples then how can that law be in violation of equal protection law?

    Well, I explained that to Tom before.

    The people who proposed the 14th Amendment, in the floor debates, explicitly stated that it wouldn’t nullify anti-miscegenation laws. Yet when Loving v Virginia was decided, invalidating anti-miscegenation laws, the 14th Amendment was cited as justification.

    As I said to Tom then, “I don’t see how you can find the argument you’ve given above persuasive, and also conclude that Loving v Virginia was correctly decided. You get to pick – at most – one. I’m curious to hear what your choice is.”

  10. BillT –

    No. That’s what marriage has become.

    You speak of marriage, but I was discussing marriage law. The law is not – and has never been – capable of addressing things beyond the secular. Aspects of marriage beyond the legal, economic, and material are beyond the law’s province.

    It’s already widely acknowledged that spiritual understandings of marriage can and do differ from the legal framework. From that post originally linked to: I know of no religion that has an equivalent of ‘common-law marriage’, for one. And – as I’ve repeatedly noted before – there’s this tiny Christian denomination called “Roman Catholicism”. They don’t allow divorce. If a member of their denomination gets a civil divorce, the Catholic Church doesn’t consider them divorced; in their theological eyes, they remain married, and if they get a civil marriage to someone else, it’s just a legal fiction – they are still married to their original spouse so long as they both shall live. You might also have heard of the Orthodox Jewish ‘get’.

  11. Does equal protection mean homogenization? Everyone has to accept the redefinition of marriage as being morally equivalent to the original or traditional definition. Are SSM activists willing to admit they have redefined marriage? What gives them the right to redefine marriage for everyone else and then use the coercive force of the law to persecute those who disagree with them? Make no mistake persecution is what they are aiming at. They already have shown their hand in that regard. Are religious believers no longer afforded equal protection? What does equal protection mean in a religious context? Homogenization? All religious people believe exactly the same?

  12. Marriage laws, when originally established, took into account all the aspects of marriage that impacted the society and the good of that society. They’ve been stripped of most of those but that doesn’t mean they weren’t part of those laws even if unspoken. That’s what’s been lost and why they’ve succeeded legalizing SSM where they wouldn’t have otherwise.

  13. Re: Loving v. Virginia: no one has ever said that mixed-race marriages weren’t marriages. That’s never been in question. The 14th amendment applied to mixed-race marriages simply made it clear that persons of different races could have equal access to equivalent privileges. In other words, my post here has answered your question about that already, Ray.

  14. Catholicism may not allow divorce, but that doesn’t mean that divorce is different in Catholicism than anywhere else. In other words, the definition of divorce is not a sectarian matter. Neither is the definition of marriage.

  15. Ray #9
    I get to pick one? Okay, I pick the intent of the founders when they declared a more fundamental law that governs all – that all men are endowed by their Creator with certain unalienable Rights. Those rights apply to all races. What are those rights? Where’s a secularist going to find them? Not in the 14th Amendment.

  16. Tom, SteveK – My point, of course, is that laws can have effects their drafters didn’t intend. So simply saying that when various marriage laws were drafted, they weren’t intended to apply to same-sex marriage, is insufficient to invalidate the notion that they nevertheless can. The same applies to the 14th Amendment and ‘miscegenation’, and yet the plain intention of its drafters was discarded later – and correctly, you seem to agree.

    BTW, SteveK – the Declaration of Independence is of great historical interest, but doesn’t actually have any legal force – no law draws authority or justification from it. Indeed, the Constitution itself is a remarkably religionless document. (One reason many Christians opposed its adoption at the time, in fact.) John Adams remarked upon this: “The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature: and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an æra in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the inspiration of heaven, any more than those at work upon ships or houses, or labouring in merchandize or agriculture: it will for ever be acknowledged that these governments were contrived merely by the use of reason and the senses.”

    (He may have been less-than-prescient with his “it will never be pretended” prediction, but he was pretty well-informed on the formation of the Constitution.)

  17. Tom –

    Catholicism may not allow divorce, but that doesn’t mean that divorce is different in Catholicism than anywhere else.

    That’s rather too facile. It’s not that divorce isn’t “allowed” in Catholic doctrine, it’s that it’s not possible. Once two people are married, they are joined by God and that bond cannot be dissolved, except by death. “If a Catholic spouse marries with the proper Canonical Form and with at least the semblance of the necessary intentions given through the marriage vows, we recognize the enduring marriage bond which cannot be dissolved, even if the civil government, through divorce, no longer recognizes that a marriage exists… The Church does not have the power to divorce any persons who have been united by God.”

    In Catholic understanding, “divorce” is a contradiction in terms.

  18. BillT –

    Marriage laws, when originally established, took into account all the aspects of marriage that impacted the society and the good of that society. They’ve been stripped of most of those

    Can you illustrate with some examples? Things that were taken into account but have been “stripped” since? I assume you mean more than the opposite-sex requirement.

  19. BillT,

    Marriage laws, when originally established, took into account all the aspects of marriage that impacted the society and the good of that society.

    Were the original marriage laws forced on everyone? Was it because some group had redefined marriage? Or, were they accepted by a broad consensus of citizens without coercion?
    ,
    The only real case of coercion that I can think of is the outlawing of polygamy by the federal government in Mormon governed Utah, sometime in the 19th century.

  20. No, Ray. Catholics did not invent a new meaning for “divorce” and then say newly defined term represented something impossible. When Catholics say “divorce,” they mean the same thing everyone else means. They make no claim that “divorce” is a contradiction in terms. You made that up.

    They only say that a civil divorce has no ecclesial effect, as far as they are concerned.

    The definition of the word is not a sectarian matter. Neither is the definition of marriage.

  21. Every time someone says marriage is a sectarian term, they’re saying, “YOU’VE NEVER DEFINED OR EXPLAINED IT IN ANY TERMS EXCEPT FOR RELIGIOUS ONES!”

    Which isn’t true. It’s just a repeated lie. If you say it as loud as I just did, it might seem more believable, except I counteracted that by exposing what’s underneath the lie.

    The fact that Democrats are more likely than Republicans to interpret certain data as a sign of anthropogenic global warming does not mean it’s a purely political interpretation.

    The fact that some “sects” are more likely to accept that definition than others does not negate the fact that there are a whole host of non-religious reasons to define marriage as we do, and it doesn’t mean that it’s a purely religious interpretation.

    (Why, oh why do we have to keep re-stating the obvious?)

  22. Ray,

    None of the reasons were directly articulated. But you need to have some understanding of the history of law and what the influences were that lead to the formation of American law. American law came from English law and English law from the civil and ecclesiastical courts. The underpinnings of both and the American system were highly influenced by the church and Christianity. The philosophical underpinnings were deeply theological and the assumptions the laws were built in part on the faith positions of the people that formed them. As I said, Girgic et als do a good job recounting the depths of understanding that underpin marriage law.

  23. Ray,

    the Declaration of Independence is of great historical interest, but doesn’t actually have any legal force – no law draws authority or justification from it.

    I know what you’re trying to say here, but it provides you no cover for what you want to say regarding equal protection laws. If rights are not inalienable then that reality is the ‘authority’ that anyone – including judges – can rightfully draw upon to rule in favor of not protecting you equally. The 14th Amendment has no force on it’s own. So while the Declaration is not law, it’s a very important document that (we hope) influences our legal system.

  24. The people who proposed the 14th Amendment, in the floor debates, explicitly stated that it wouldn’t nullify anti-miscegenation laws. Yet when Loving v Virginia was decided, invalidating anti-miscegenation laws, the 14th Amendment was cited as justification.

    I consider this broken jurisprudence. If the framers of a law make clear statements as to how it is to be applied, then judges should either apply it in that manner or, if the wording and intent seem incompatible, send it back to be re-drafted. Regardless of how “moral” the cause – whether emancipation, abortion, or motor registrations – laws should not be post-hoc reinterpreted in ways that are clearly counter to how they were originally passed. Intent of law should be changed by an act of government, not a reading of the mood of the nation. If it is truly the mood of the nation, there should be little issue in getting the law changed by parliament.

  25. @Andrew W:

    If the framers of a law make clear statements as to how it is to be applied, then judges should either apply it in that manner or, if the wording and intent seem incompatible, send it back to be re-drafted.

    IANAL, but from what I recall, public statements by legislators about what they intended when passing a law actually rank pretty low on the ladder of things judges consider when deciding what the law actually means.

    Having said that, I agree that the proper place to change laws is the legislature, and not the courts. While I consider that my own country’s recent decision to legalise SSM was regrettable, and the debates around it were in my opinion of pretty low quality and heavy on rhetoric and appeals to emotion, at least it was done properly, by the legislature, and not imposed by the members of an unelected tribunal.

    To be honest, though, if proponents of SSM manage to win their case by part emotional rhetoric and part saying that marriage is about little more than an agreement between two people to form a “corporation” to manage their property, then maybe it’s time to abolish civil marriage* entirely. What policy purpose does it serve at this point, or is it just inertia that keeps it going? Why not go the whole hog and just speak of individuals (or “persons”) and households?

    * I am, of course, speaking of modern marriage, in which either party can unilaterally end the marriage at any time for any reason or none, adultery is no longer punishable at law except possibly in terms of a more generous settlement going to the other party (and then only if the adulterer fails to win the sympathy of the court), and the biological sex and probably number of the participants are about to be thrown out.

  26. A lot of verbosity in here . Sometimes it is needed and at other times it is not . As an Irishman about to vote no to same sex marriage in Ireland on May 22 I want to say that your legal system is corrupt and in my view it will make all the states accept same sex marriage whether you like it or not . Same sex marriage is sinful and it will incur Gods wrath . Just because ths law offers legal protection to same sex couples doesn’t make it morally right in Gods eyes. Anybody who is for same sex marriage cannot be in Christ . I cannot stress this enough . The homo fascists may have their reward for a short time but the law will never justify their moral perversion in front of a just and righteous redeemer Christ .

    In Ireland we await the peoples verdict . God isn’t outsmarted by our vote next May . He is merciful and will forgive those who repent . He forgave my wickedness . He can forgive yours too

    Repent while ye still can because I can’t save you from the anger to come . I pray you do . I believe as a Christian that I have not always shown you ” homosexuals ” and homosexual supporters love in my everyday dealings with you . If I’ve judged you I confess it right now . Im not perfect and God will deal with me severely if I’ve been hypocritical and have not confessed it to Him ! . But God will judge you who both condone homosex and actually do it . Sodom was where God judged homosexuals . Remember that and stop before it’s too late .
    I plead with you all .
    Fear God and all will be well with you .

  27. John,

    As an Irishman about to vote no to same sex marriage in Ireland on May 22 I want to say that your legal system is corrupt and in my view it will make all the states accept same sex marriage whether you like it or not .

    Tragically there is nothing democratic about the so-called “gay rights” movement in the U.S. SSM will not be decided democratically. It will be decided by one unelected man who sits on our supreme court. The anti-democratic forces represented by the secular progressive left will be out in the streets celebrating. Tragically that will be only the beginning of persecution that has already begun, but is completely ignored by the media, which is biased against people who live quietly and peacefully according to traditional values or their religion.

  28. Scintimandrion,

    “maybe it’s time to abolish civil marriage* entirely.”

    Tragically that may be the only way forward for the supporters of traditional marriage. Personally I think it is something that the Christian Church, broadly construed (protestant, Catholic, Orthodox) could and should do unilaterally—without any civic legislation at all, declare “civil marriage” illegitimate.

  29. Philmonomer #28

    Skimming over that document in various places, it seems the intent isn’t so much to uphold the laws of equal protection per se, but to uphold and protect a privately perceived sense of social fairness – or something like that – and using equal protection law as a cover to justify that.

    It rejects the “private moral view” (see last page) of the defendants (which are the social majority) in favor of the private moral view of the plaintiffs (which are the social minority), though that’s not what they are explicitly labeling it.

  30. SteveK #31

    It doesn’t do that. But I don’t have the time to hash it out–and I often don’t have any faith in these types of internet discussions, anyway. 🙂

  31. JAD –

    Tragically there is nothing democratic about the so-called “gay rights” movement in the U.S.

    Well, this is a constitutional republic, and many things about fundamental rights are not actually up for a vote. Indeed, one key point of the judiciary is ensuring laws passed by the majority don’t infringe on minority rights.

    Loving v Virginia is an example of judges overturning democratically-established laws, which so far only Andrew W has said was decided incorrectly.

    Tragically that will be only the beginning of persecution that has already begun

    Y’know, every time I’ve asked people to put their money where their mouth is on these predictions, it’s been declined…

  32. Tom –

    Every time someone says marriage is a sectarian term, they’re saying, “YOU’VE NEVER DEFINED OR EXPLAINED IT IN ANY TERMS EXCEPT FOR RELIGIOUS ONES!”

    No, we’re making a necessary distinction. The map is not the territory.

    Look, I program computers for a living. We have things called ‘data structures’ – collections of information designed to represent something of interest. For a college computer system, to represent a student, you’d want things like name, address, some unique student ID number, a separate Social Security number (for administering loans), records of classes taken with grades, current enrollment status, student organization memberships, degrees earned, etc. Some of those chunks of data might have their own sub-structures – a mailing address, for example, involves country, city, street, address number, zip code, etc.

    The data structure is not the student – it represents, to the computer, relevant information about the student. You can think of lots of things not recorded or represented in the computer (and many more things the computer literally couldn’t record).

    There’s lots of ways to organize and structure and store even that limited set of relevant information – many of which would behave identically to a user of the system, yet would be implemented quite differently inside the system. But if a computer’s going to work with collections of data at all, that data must be structured in some way.

    Legal marriage is like a data structure in that sense – it captures, for the law’s purposes, salient information about some human relationships. There are plenty of things about marriage that the law could not possibly address – the law can only address “the legal, economic, and material” aspects of marriage.

    We already talked about how U.S. law considers corporations to be persons for many purposes. It’s kind of a ‘hack’ – it allows re-use of a lot of legal structures without having to re-write them. A company that sent employees to audit courses at a college might get a student record, even though there’s no actual ‘student’ associated with that record.

    When people talk about legal marriage, they are talking about the way the law represents, organizes, and interacts with aspects of the world. Sometimes you have to reorganize the information in a computer, to better enable the college to get its job done, or to adapt to changes (my student number back in my college days was my SSN – but in response to identity theft they don’t do that anymore). When we talk about legal marriage, we’re talking about how the law should be arranged to best serve us citizens.

  33. (This may be a repeat; doesn’t seem to have taken before.)

    Tom –

    Every time someone says marriage is a sectarian term, they’re saying, “YOU’VE NEVER DEFINED OR EXPLAINED IT IN ANY TERMS EXCEPT FOR RELIGIOUS ONES!”

    No, we’re making a necessary distinction. The map is not the territory.

    Look, I program computers for a living. We have things called ‘data structures’ – collections of information designed to represent something of interest. For a college computer system, to represent a student, you’d want things like name, address, some unique student ID number, a separate Social Security number (for administering loans), records of classes taken with grades, current enrollment status, student organization memberships, degrees earned, etc. Some of those chunks of data might have their own sub-structures – a mailing address, for example, involves country, city, street, address number, zip code, etc.

    The data structure is not the student – it represents, to the computer, relevant information about the student. You can think of lots of things not recorded or represented in the computer (and many more things the computer literally couldn’t record).

    There’s lots of ways to organize and structure and store even that limited set of relevant information – many of which would behave identically to a user of the system, yet would be implemented quite differently inside the system. But if a computer’s going to work with collections of data at all, that data must be structured in some way.

    Legal marriage is like a data structure in that sense – it captures, for the law’s purposes, salient information about some human relationships. There are plenty of things about marriage that the law could not possibly address – the law can only address “the legal, economic, and material” aspects of marriage.

    We already talked about how U.S. law considers corporations to be persons for many purposes. It’s kind of a ‘hack’ – it allows re-use of a lot of legal structures without having to re-write them. A company that sent employees to audit courses at a college might get a student record, even though there’s no actual ‘student’ associated with that record.

    When people talk about legal marriage, they are talking about the way the law represents, organizes, and interacts with aspects of the world. Sometimes you have to reorganize the information in a computer, to better enable the college to get its job done, or to adapt to changes (my student number back in my college days was my SSN – but in response to identity theft they don’t do that anymore). When we talk about legal marriage, we’re talking about how the law should be arranged to best serve us citizens.

  34. Legal marriage is like a data structure in that sense – it captures, for the law’s purposes, salient information about some human relationships. There are plenty of things about marriage that the law could not possibly address – the law can only address “the legal, economic, and material” aspects of marriage.

    That’s the question on the table – what ARE the relevant aspects of marriage (i.e. what is marriage) such that it applies to SS couples and forms the basis of a legal equal protection argument?

  35. Okay, so you’ve asked us to put money on it.

    How is the winner decided? Would someone being forced to pay hundreds of thousands of dollars in fines count as a sign that we were right? People being forced out of jobs? People regularly being slandered as bigots and haters by others who don’t even know them? People being forced to use their own home as a venue for weddings they disbelieve in? People being laughed at? People being physically looked down on in public and labelled “bizarre” (not just symbolically, although that, too)? Pastors being ordered not to preach their beliefs? Pastors being ordered to turn their private communications over to the local government? Student organizations being de-recognized for not admitting people in as leaders whose beliefs contradict the organization’s?

    Would any of that count as our side winning this bet?

    Were you actually unaware of all that, or did you think none of it actually counted as signs of rising persecution?

  36. I understand every word you wrote in #35 and #37, but I have no clue how any of it relates to the discussion. I do think this is obviously false, however:

    There are plenty of things about marriage that the law could not possibly address – the law can only address “the legal, economic, and material” aspects of marriage.

  37. This is persecution:

    https://www.thinkingchristian.net/posts/2015/02/irony-and-intolerance-on-campus-case-study-at-unc-wilmington/#comment-111835

    See also this:

    https://www.thinkingchristian.net/posts/2015/02/irony-and-intolerance-on-campus-case-study-at-unc-wilmington/#comment-111884

    At least that is the way Jesus would have defined it.

    “Be careful with people. They will take you to court. In the Jewish churches they will whip you. You will be arrested and taken to governors and kings, why? Because you believe in Me, and you will witness to them and to the non-Jews. When they judge you, don’t become worried about what you will say. When the time comes for you to speak, God will give you the words. You aren’t the one who speaks. The Spirit of your Father speaks in you.” Matthew 10:17-20.

    Notice Jesus warned people would use the legal system as an instrument of persecution. That’s exactly what we are seeing today.

  38. “Where equality is given to unequal things, the resultant will be unequal”. Plato, Laws. Book 6. What is at stake here in the case of legal recognition of SSM based on equal protection of the laws under the federal Constitution is whether SSM on this basis fails to achieve the desired results of its proponents because of the inherent characteristics of the ‘things’ involved. Thus, if there is true ‘unequality’ of the ‘things’ involved, there can be an erroneous determination even when the exists the desire to achieve equality. Where legal matters are involved, erroneous determinations don’t really do that well even in the long run, and, in fact, can, and should, be a basis for undoing what has ostensibly been done.

  39. JAD,

    Why do you have so much contempt for Christians?

    I have no contempt for categories or classes of person, but since I’m human I do feel the emotion of contempt when I perceive immoral behavior. In this case, I feel some mild contempt for what appears to be Stuzman’s morally inconsistent behavior in not having a religious problem with selling flowers in support of a gay life-style but then refusing to sell flowers when it comes to supporting gay marriage.

  40. DJC,
    Why does it surprise you that the florist balked when it came time to a wedding ceremony? Do you think birthdays and anniversary dates have the same significance to a Christian – to most anyone? People spend big bucks on weddings and cherish them forever. Birthdays and the day people meet, not so much.

  41. Besides that, for Christians marriage is sacred, therefore, weddings are a sacred rite… Are Christian florists obligated to participate in Satanist weddings? I am not being facetious here. Satanism is an organized religion. They get married like everyone else

  42. There are numerous examples that could be given, JAD. I think SS advocates are unwise to advocate for these kinds of actions. It’s only a matter of time before the shoe will be on the other foot. I assure you that somebody is scheming to do just that.

  43. SteveK,

    Why does it surprise you that the florist balked when it came time to a wedding ceremony?

    From the link:

    During the approximately nine years leading up to the present action, Stutzman, on behalf of Arlene’s Flowers, regularly designed and created flower arrangements for Ingersoll. Ingersoll estimated that, with respect to the purchase of flowers only, Stutzman had served him approximately 20 times or more and that he had spent in the range of $4,500 at Arlene’s Flowers. Stutzman prepared these arrangements knowing both that Ingersoll was gay and that the arrangements were for Ingersoll’s same-sex partner, Curt Freed for occasions such as birthdays, anniversaries and Valentine’s Day.

    Ingersoll than asked her to do the exact same thing: design and create flower arrangements for him and Freed but this time for a wedding ceremony. She says “no”.

    So, if Stuzman prepares flowers used to support and cement a gay partnership, it’s okay. But if Stuzman prepares flowers used to cement and support a gay partnership in the form of a marriage ceremony, it’s not okay. What’s the difference here if the central moral issue is about the gay life-style being a sin?

  44. DJC,

    Let’s grant for the sake of argument that you can’t understand someone else’s decisions of conscience.

    Let’s grant that you don’t know why someone considers one thing to be okay, but balks at another.

    Let’s grant that you don’t see a difference between the two things, but someone else does.

    You disagree with that person.

    Your opinion has been duly noted.

    Now that we’ve accomplished that, how about if you and the rest of us just stuff our hands in our pockets and shuffle away shaking our heads as we go?

    But if you really want to pursue it, I’ve only got one two-part question for you, concerning all the tenacity with which you’ve been pushing this.

    You disagree with someone on a matter of conscience. So what? Is that supposed to make a difference to anyone else?

  45. I do wonder what would happen if a florist or baker declined a man/woman couple’s wedding request who had let them know they were planning to have an open “marriage” on the grounds that they could not in good conscience participate in an event that celebrates an open relationship.

    Sorry, that is a bit of an aside, but I wonder.

    I also wonder if all the people who insist it is a terrible thing for a florist or baker or other wedding vendor to decline a same sex “wedding” would be so offended by them declining an open “wedding”. Im guessing not, at least not as long as it was not between a same sex couple (obviously).

  46. Maybe it’s just me, or maybe I haven’t thought about it enough, but I’d be okay with most any business refusing to serve me for whatever reason they have. If you don’t want my business, I’ll buy whatever I need elsewhere. I’m not saying that I’m morally okay with it, nor am I saying that I would tolerate abusive insults, but I am okay with people having the freedom to live as they believe.

    Some people are always looking for the chance to say they are offended. I guess I’m not one of them.

  47. Hi SteveK,

    “Maybe it’s just me, or maybe I haven’t thought about it enough, but I’d be okay with most any business refusing to serve me for whatever reason they have. If you don’t want my business, I’ll buy whatever I need elsewhere. I’m not saying that I’m morally okay with it, nor am I saying that I would tolerate abusive insults, but I am okay with people having the freedom to live as they believe.”

    What if they were the only game in town? I am sure that is not the case in any that have been mentioned here, but my daughter is doing rural teaching in a town with a population of 800. They have only one of most of the types of businesses in town. If the corner store refused to take your business you would be out of luck for most of the basic staples of life, not to mention petrol as they operate the only pump in town. This is why businesses open to the public must sell to all the public.

    Cheers
    Shane

  48. Shane-

    Fair point, at least as long as there is no confusion between refusing someone essentials vs. refusing to be part of someone’s special event. If the only florist in town does not want to decorate same sex “weddings” so what. That is nothing alike the only gas station in town not selling someone gas or the only grocery store in town not selling someone groceries.

  49. Ray #37

    “When we talk about legal marriage, we’re talking about how the law should be arranged to best serve us citizens.”

    As noted your comment did not quite fit with the original discussion, but I found it interesting nonetheless. It seems to me that it is odd and clunky to arrange the law in such a way that two person romantic relationships are classified differently than other relationship configurations. Likewise, it seems odd and clunky to arrange the law in a way as to lump all households/basic economic unit together. Maybe this is a poor example (I am not in your field after all), but perhaps it is akin to using a single database for both student and medical records. Let’s just lump student and medical records together as if there is no difference (and I mean that literally there would be no indication in the database whether a record pertained to a students medical or student history).

    Maybe that could work, but I have hunch that it would be inefficient and confusing because there are salient differences between student and medical records. Likewise, there are salient differences between (man-woman) married households and other possible household configuration. It could be the case that to lump them all together as if the differences are irrelevant would ultimately be inefficient and cause confusion.

  50. There’s always a “what if”, Shane. In addition to what DR84 said, a business like that isn’t likely to survive unless two things happen – (a) the majority of the people in town agree with the business or don’t care and (b) nobody starts a competing business. If (a) I wouldn’t want to live among these people even if they were legally forced to serve me. If (b), I might do it myself.

  51. Hi DR84,

    “Fair point, at least as long as there is no confusion between refusing someone essentials vs. refusing to be part of someone’s special event. If the only florist in town does not want to decorate same sex “weddings” so what. That is nothing alike the only gas station in town not selling someone gas or the only grocery store in town not selling someone groceries.”

    Of course not. Do you think there should be two different sets of laws, one for essential services and one for non? Who decides which is which. And what is essential for some, is not for others. My brother has no license or car and therefore has no need for petrol, for example.

    Cheers
    Shane

  52. Hi SteveK,

    “There’s always a “what if”, Shane.”

    Sir, you mentioned that you might not have thought about it enough, and I proposed a scenario that you may not have thought of.

    “In addition to what DR84 said, a business like that isn’t likely to survive unless two things happen – (a) the majority of the people in town agree with the business or don’t care and (b) nobody starts a competing business. If (a) I wouldn’t want to live among these people even if they were legally forced to serve me. If (b), I might do it myself.”

    I think I agree with (a) and possibly even your assertion that you wouldn’t want to live among the community if they agreed with the business owner or if they were too apathetic to do anything about it. But I think what you are hinting at, and correct me if I am wrong, is that you would leave the community. This seems to be another scenario that you haven’t given much thought to, as I can think of plenty of reasons why you would continue to live in a place under these circumstances. Not the least of which is fighting for the right thing rather than just “running away”.

    (b) is also plausible, I guess, but how often can you start a new business when you are defined service? It doesn’t seem to be a practical scenario to be a “photographing florist”, for example. And it seems especially hard to photograph your own wedding and do justice to either the photographs or the wedding.

    Cheers
    Shane

  53. Hi DR84,

    “I do wonder what would happen if a florist or baker declined a man/woman couple’s wedding request who had let them know they were planning to have an open “marriage” on the grounds that they could not in good conscience participate in an event that celebrates an open relationship.

    Sorry, that is a bit of an aside, but I wonder.

    I also wonder if all the people who insist it is a terrible thing for a florist or baker or other wedding vendor to decline a same sex “wedding” would be so offended by them declining an open “wedding”. Im guessing not, at least not as long as it was not between a same sex couple (obviously).”

    In my own case, you guess incorrectly. I find it wrong for a business open to the general public to refuse service to anyone, for any reason. I wouldn’t classify it as offensive though, just illegal.

    I’m interested what you think, though. Do you think they have the right to refuse service? would you classify it as not a real marriage?

    Another scenario I have been wondering about, is a marriage of a gay man and a lesbian woman. This would almost certainly contain the open marriage elements you mention, but also be devoid of the (spousal) love and the chance of procreation that you would normally associate with OSM. Do you think a Christian business would have the right to deny service to the participants of this marriage?

    Cheers
    Shane

  54. Shane-

    Do you find it wrong for a baker that is a Jehovahs witness to not bake someone a birthday cake? Celebrating birthdays is against JW beliefs.

    “Another scenario I have been wondering about, is a marriage of a gay man and a lesbian woman. This would almost certainly contain the open marriage elements you mention, but also be devoid of the (spousal) love and the chance of procreation that you would normally associate with OSM. Do you think a Christian business would have the right to deny service to the participants of this marriage?”

    I dont know how the law would handle that. I am unaware of any laws against this. I think a wedding vendor should be able to decline such a “wedding” if all you suggest is the case. Just knowing the man claims to gay and his future wife a lesbian is not enough to come to the conclusions you have about their relationship; though.

  55. Sir, you mentioned that you might not have thought about it enough, and I proposed a scenario that you may not have thought of.

    I wasn’t asking if anyone could manufacture a scenario for my life that doesn’t actually apply to my life. (i.e. what if everyone I knew hated me?) What your daughter would do in that situation, I have no idea. Since I’m not in that situation and cannot ever see myself in that situation, I get to imagine how it might turn out for me.

  56. Tom,

    You disagree with someone on a matter of conscience. So what? Is that supposed to make a difference to anyone else?

    I might ask you the same question. You disagree with society on SSM as a matter of conscience. Your opinion has been duly noted. So what? Is that supposed to make a difference to anyone else? I’ll answer for both us: matters of conscience in the form of strongly felt moral views are the only things that consistently and strongly divide humanity. Reasoning out matters of conscience, identifying the roots of moral concerns, and opening the whole thing up to potentially hostile critique and analysis identifies whether and where common ground might exist.

  57. Hi DR84,

    “Do you find it wrong for a baker that is a Jehovahs witness to not bake someone a birthday cake? Celebrating birthdays is against JW beliefs.”

    Assuming they are in the business of making celebratory cakes for other occasions, then yes. They are not being asked to celebrate a birthday. They are being asked to combine ingredients, bake and decorate a cake, something they have agreed to do for the public when they opened their doors.

    An example of a reasonable refusal due to religious beliefs is the Muslim cashier who would not touch ham or wine whilst he was fasting during Ramadan. The actual touching of the foodstuffs is forbidden by his religious beliefs and a customer was asked to go through a self serve check out. What the cashier did not do was refuse to sell the products at all. He didn’t try and impose his religious beliefs on the customer.

    “I dont know how the law would handle that. I am unaware of any laws against this. I think a wedding vendor should be able to decline such a “wedding” if all you suggest is the case. Just knowing the man claims to gay and his future wife a lesbian is not enough to come to the conclusions you have about their relationship; though.”

    It’s a thought you prompted when you mentioned being against two straight women getting married. If OSM contains something inherently different to SSM, does the above scenario still contain that essential difference?

    Cheers
    Shane

  58. Hi SteveK,

    “I wasn’t asking if anyone could manufacture a scenario for my life that doesn’t actually apply to my life. (i.e. what if everyone I knew hated me?) What your daughter would do in that situation, I have no idea. Since I’m not in that situation and cannot ever see myself in that situation, I get to imagine how it might turn out for me.”

    So, you weren’t interested in exploring a line of thought, you just wanted to mention how great you are because you don’t get easily offended? My mistake.

    Cheers
    Shane

  59. So, you weren’t interested in exploring a line of thought, you just wanted to mention how great you are because you don’t get easily offended?

    I appreciate virtuous character traits, sure. Not ashamed to say that and possibly encourage others if I can.

  60. DJC,

    I agree with the part about reasoning these things out. When you first raised this issue (#45), there was no reasoning there, just a statement of what raises feelings of contempt in you. I guess that influenced me such that I failed to notice in #50 when you asked a question.

    What’s the difference, you ask, “if the central moral issue is about the gay life-style being a sin?”

    That’s not the only issue. It’s one of them, but many of my own statements on gay marriage, and the highly influential ones by Girgis, George, and Anderson make no reference to whether homosexual practice is sinful. Gay marriage is wrong and strongly to be opposed for many other reasons besides that one.

  61. Dear SteveK,

    “I appreciate virtuous character traits, sure. Not ashamed to say that and possibly encourage others if I can.”

    So suck it up, walk away, don’t take it so seriously? That’s your sage advice? To gay people, of course, not Christian florists. The latter should absolutely stand up for their beliefs and take it very seriously indeed.

    Cheers
    Shane

  62. @DJC:

    So, if Stuzman prepares flowers used to support and cement a gay partnership, it’s okay. But if Stuzman prepares flowers used to cement and support a gay partnership in the form of a marriage ceremony, it’s not okay. What’s the difference here if the central moral issue is about the gay life-style being a sin?

    Because the central issue is *not* “about the gay life-style being a sin”. Gay life-style is immoral, but not everything that is immoral is, or should be, punishable by law. Especially, in western democratic societies where the standards have decayed beyond recognizable, and the very moral facts are in dispute. Second, I do not know what it means to prepare “flowers used to support and cement a gay partnership”, but to prepare flowers for a wedding — which is a creative endeavor in which the author imprints its own personal stamp, and unavoidably sends a message — falls under what is known as “mediate material cooperation with evil” and is generally illicit, the exceptions falling under the principle of double effect (PDE for short) and are required to meet some exacting standards, which is not the case. You might want to look it up. The simple selling of flowers to persons that happen to live out a gay life-style may or may not fall under material cooperation with evil, and if it does, most likely it will fall under the category of “remote mediate material cooperation” which tends to be legitimate since it meets the standards of the PDE, and that is why the situations are different (*).

    (*) I am not claiming that the Florist would accept all the (thouroughly Catholic, broadly Thomistic) apparatus to analyze the situations of cooperation with evil, but I am pretty confident that *some* of it would.

  63. Shane at 69, has it occurred to you that florists wouldn’t have to suck it up so if others wouldn’t force them to violate their consciences? Has it occurred to you that these violations are not even remotely necessary, that there are easy, far less personally-violating alternatives?

    I’m proud of Christians who do just what you said, and stand up for their beliefs. I’m also well aware of the huge price they pay, on account of others stirring up trouble in their lives for no good reason.

  64. The business owner can follow his conscience, but will have to accept the consequences, which may be that he cannot be a business owner. I’m not an attorney, but is seems to me that in this country everyone should have equal access to goods and services. There have been times and places when that has not been the case (remember lunch counter sit-ins? Rosa Parks? Redlining?) and as a society we have found that unacceptable and illegal.

    On another note, I’ve been thinking about your argument against SSM, and I am wondering exactly how you see a prohibition against SSM benefiting society. I know you think disallowing SSM strengthens marriage, but how exactly? How would that work? Who are the intended recipients of the message that marriage is only for heterosexuals? Who is the message intended to influence? I really don’t understand this. Straight people will continue to get married, gay people will continue to form committed relationships with each other…so who is it who will be guided toward marriage if there is no SSM?

  65. Tom,

    When you first raised this issue (#45), there was no reasoning there, just a statement of what raises feelings of contempt in you

    That was in response to a loaded question from JAD. Contempt is a moral intuition with a cognitive component that evaluates someone’s behavior and renders a quick verdict. The premise of contempt, though, is that the behavior is fully understood which can rarely be the case. So contempt must be transitory in thinking, questioning people I feel.

    … many of my own statements on gay marriage, and the highly influential ones by Girgis, George, and Anderson make no reference to whether homosexual practice is sinful. Gay marriage is wrong and strongly to be opposed for many other reasons besides that one.

    Okay, then I think it might be possible that Stuzman has no problem with the gay lifestyle at all. That would be consistent with the close friendship she appeared to have over nine years with Freed and Ingersoll. In that case, it makes sense how deeply hurt the two were to be refused in the case of a marriage ceremony. If they’re doing nothing morally wrong in her eyes, why would she then deny them marriage? Well, the answer might be in the wording of Stuzman’s defense: she says she is “compelled to follow Resolutions of the Southern Baptist Convention Resolutions”. The moral intuitions of loyalty and deference to authority to her Church are stronger than the loyalty she feels to her gay friends.

  66. G. Rodrigues,

    The simple selling of flowers to persons that happen to live out a gay life-style may or may not fall under material cooperation with evil, and if it does, most likely it will fall under the category of “remote mediate material cooperation” which tends to be legitimate since it meets the standards of the PDE, and that is why the situations are different.

    I’m sure that’s true in general, but the specifics of this case make me think there was a fairly strong friendship between Stuzman and the gay couple that could not have happened if Stuzman had any concerns about median material cooperation, remote or otherwise. Put another way, there must be many subtle, gentle ways to end business with someone over nine years if you do not fully approve of their lifestyle and use of your lovingly crafted flower arrangements; there’s no need to wait for the inevitable tying of the knot. So in that case, this is Stuzman putting her Southern Baptist Church resolutions ahead of her friendship, which I suppose in context is morally courageous behavior (but deeply misguided in my view).

  67. DJC,

    The hypocrisy you describe is a pretty common experience for those in the GLBT community. People one think of as friends are revealed to have views that belie the friendship. I attended a wedding ceremony for a gay couple once, and overheard one of the guests, a close friend of the couple, telling one member of the couple how she explained to her daughter that they weren’t REALLY getting married.

  68. OS-

    So, because people will continue to form homosexual relationships; therefore, homosexual relationships are marriages? People will also continue to form friendships, per your reasoning, these must be marriages as well (or at least you have no reason to think otherwise).

    It is also plainly obvious you have not read and understood any comment or post here. The question is if SS”M” is actually a marriage at all. If there is anything true about marriage such that an SS”M” is an instance of marriage.

    Besides that, if all you can say is that we have not presented a reason that convinces you to be opposed to recognizing same sex relationships as marriages, so what? You have not presented a reason for me (at least) to convince me that we should recognize them as marriages. Perhaps you could re-read the opening post, understand it, and explain what is true about marriage that makes SS”M” relationships marriages. Maybe you will point out something no one else has yet to.

  69. OS-

    I can understand if you think it is odd that the friends of a same sex couple would attend their “wedding” and yet not believe such an event is a wedding at all. I think that is odd to. Although, I do at least sympathize with their choice.

    However, on what grounds does one’s views that marriage is the union of a man and woman belie any friendship with someone who identifies as gay and wants to “marry” someone of the same sex? It is almost as if you are just assuming that this view is plainly not true and that same sex relationships are marriages.

    Also, have you considered the possibility that if the same sex couple in this example broke the friendship upon finding out their friends real views about marriage that it was the same sex couple who belied the friendship? I suggest that this is the case, perhaps always.

  70. DR84, I don’t really know what you’re talking about in #78, but in answer to #79, I think if either side breaks off the friendship due to the views of the other, it does NOT belie the friendship. Also, I think it’s perfectly permissable for the friendship to continue, if both sides are aware of the views of the other and agree to disagree (I don’t think it’s the kind of friendship I would want, personally, though.) It’s when the friendship is continued under false pretenses that there is, I think, some hypocrisy, not to mention significant hurt for the gay person or couple.

  71. The business owner can follow his conscience, but will have to accept the consequences, which may be that he cannot be a business owner.

    We know this. Should the law disallow freedom of conscience without punishment? I say it should be allowed when the stakes aren’t that high. There are plenty of florists, pick another one.

    We allow freedom of conscience decisions, but we don’t allow them equally – which is a form of legal discrimination in the first place. How so? Consider reversing the situation.

    If a gay customer decided not to conduct business with a florist because he didn’t want to support a heterosexual business owner (would rather support a gay owner), would the equal protection law apply to the owner? It’s discriminated based on sexual orientation. Somebody’s gotta suffer the legal consequences. If there are no current legal consequences we need to pass them ASAP because this just cannot stand. Right?

    I think it’s silly to even suggest that the customer be forced to buy from this owner. I would tell the owner: there are plenty of customer’s, pick another one.

  72. OS-

    Perhaps, I can clarify, but perhaps not. I say perhaps not because I believe it is already plainly clear. I think Tom’s opening post is quite lucid and you simply did not bother to engage it at all. You skipped straight to saying what amounts to people are going to do it anyway so we should just give them what they want.

    People are going to form same sex relationships, they want them recognized as marriages, so we should recognize them as marriages. That seems to be the extent of your reasoning.

    There is a clear cut question in the opening post about marriage and same sex relationships that you have completely skipped over. A question I repeated in my response to you.

    I am not going to bother to repeat the question again.

    Instead, since the extent of your reasoning is nothing more than “sounds good to me”. I can simply respond in the opposite, since people will form same sex relationships anyway, I see no reason to recognize them as marriages. They are going to do it anyway, there is no need for any extra incentive. Its just like friendships, people are going to find friends and be committed to those friends without marriage. It is simply unnecessary.

    Also, to get ahead of you suggesting the same is true of men and women. Yes, men and will women will form relationships even if no one had a clue what marriage is. The question is, what will these relationships tend to be like? Are they typically going to be begun with the intention of a lifelong, monogamous union as marriages are? Possibly, but I think highly unlikely. People do not tend to reach to live out higher standards that are not expected of them. However, if the standard exists, if it is reinforced in society (like with an institutionalized relationship with particular, lofty, expectations), it is likely many people will aim high and try to live those expectations out.

  73. Tom –

    Okay, so you’ve asked us to put money on it.

    As I’ve said before, there’s a difference between being unpopular and being persecuted. (“I pray that one day we may live in an America where Christians can worship freely, in broad daylight, openly wearing symbols of their religion, perhaps around their necks. And maybe – dare I dream it – maybe one day there could even be an openly Christian president. Or, perhaps, 43 of them. Consecutively.” – Jon Stewart)

    Neither Christians nor atheists are being flogged or hacked to death in the U.S.

    Many of the things in your list are just being unpopular. Others I have problems with – in particular, “Pastors being ordered not to preach their beliefs?” I know of no case where that’s happened, or in any danger of happening, in the United States.

    There are others that are cast in the worst possible light, e.g. “Pastors being ordered to turn their private communications over to the local government?” Lawyers typically ask for anything and everything up front. Overreach is pretty much de rigeur. And that got slapped down pretty fast.

    Others I disagree with same as you, just as I disagree with, say, atheist billboards drawing death threats and vandalism.

    I’m pretty sure we could agree on some grounds to bet on. I was specific in the last few – like churches being forced to perform same-sex marriages. What are your specific predictions and timeframes?

  74. Tom –

    I do think this is obviously false, however:

    Okay, can you give me an example of a spiritual aspect of marriage the law could address?

  75. Shane Fletcher –

    I find it wrong for a business open to the general public to refuse service to anyone, for any reason. I wouldn’t classify it as offensive though, just illegal.

    I’ve referred before to Eugene Volokh’s amicus brief in Elane Photography v. Willock. As I said, “photographers certainly, cake decorators almost certainly, and even florists probably can claim to be engaged in artistic expression, and hence deserve greater First Amendment protection than, say, the manager of a venue. Not unlimited protection – especially when alternatives are few and far between – but some.”

    A limo driver probably couldn’t legally refuse to drive a couple to and from a same-sex wedding (at least in those places where anti-discrimination laws include LGBTetc. citizens). I think a pretty good case can be made that more “creative” endeavors get more First Amendment protection.

  76. Persecution is a matter of degree. Don’t treat us like we know nothing at all, okay? It’s rude.

    The pastors who have been ordered not to preach on certain topics are in Canada.

    Over-reach? You have very little historical perspective on what this really means for freedom of religion.

    I’ve been unpopular. I know what that experience is like. It’s not exactly the same as having one’s home commandeered, being hounded out of one’s job, being fined hundreds of thousands of dollars.

    Did you REALLY think you could wave it off so easily?

    DID YOU THINK? Or are you just knee-jerking toward ways to belittle Christians? (I realize that could be taken as a belittling question itself. The thing is, you asked for it by reducing these real difficulties to “unpopular,” and expecting us to think you should be taken seriously.)

    Sure, you not your head vaguely at “other things” you don’t disagree with me on. They don’t deserve any more mention in your eyes. You’re not interested in them enough to consider together with us how seriously they’re impacting lives, and how seriously they’re undermining religious freedom. You would rather spend your time in a comment telling us how we’re not under any persecution in your view, than to think about what it means where we are.

    Do you realize what this reveals about your character? Do you like yourself this way?

    I don’t have specific timelines or predictions. I am neither a prophet nor the son of a prophet. I’m reading trends.

    Finally, you disagree with me that this is false:

    There are plenty of things about marriage that the law could not possibly address – the law can only address “the legal, economic, and material” aspects of marriage.

    And so you ask for “an example of a spiritual aspect of marriage the law could address.”

    Are you quite sure that if it’s neither legal, economic, nor material, it has to be “spiritual”? Do you have a good definition of “spiritual” anyway? I don’t dichotomize it from the rest of my life. Everything has a spiritual dimension to it.

  77. SteveK –

    Maybe it’s just me, or maybe I haven’t thought about it enough, but I’d be okay with most any business refusing to serve me for whatever reason they have.

    Now, imagine you’re black, in the Jim Crow south, and imagine living that out. These laws were worked out in just such a situation, and have the intent of addressing, and preventing, such situations. Do at least consider the context.

  78. Your question in #87 is interesting, at least.

    Here’s where it differs. Jim Crow America was segregationist, with symbols everywhere of Blacks’ supposed inferiority, for reasons unconnected with who they actually were as persons, and (most pertinently) with no connection with their character.

    The florist who says no to a couple wanting flowers for their wedding isn’t calling gays inferior. She’s calling them wrong.

    No one said Blacks were wrong to be Blacks. They had other reasons to shun and mistreat them. Bad reasons. When it comes to restricting persons’ privileges and liberties, reasons that are unconnected with right and wrong tend to be unjust reasons. But we depend on right and wrong every day. Our justice system is just only insofar as it metes out consequences on the basis of what’s right and wrong.

    What the law today is telling Baronelle Stutzman is that she has no permission to say, in terms of her expressive business actions, that someone is wrong. That’s a violation of freedom of speech, not just religion.

    Now if it’s wrong to let someone know that you think they’re wrong, be very, very careful how you compose your reply here.

    If it’s wrong to let someone with political power know that you think they’re wrong, be very, very careful with everything you say and do anywhere as long as you live where that’s considered wrong.

    Finally, in the Jim Crow south Blacks weren’t required to perform services entirely against their will. There was a time when they were. We called it slavery, we fought a war over it, and I think you would agree that slavery is wrong.

    Baronelle Stutzman is being forced to perform services against her will. What do you call that?

  79. Tom –

    You have very little historical perspective on what this really means for freedom of religion.

    Do you think that atheists are persecuted in the United States? Or are they just unpopular?

    I don’t see Christians – even ‘fundamentalist’ Christians, or ‘conservative’ Christians, however you want to phrase it – undergoing any more persecution than atheists do and have in the U.S. Not of zero concern, but hardly apocalyptic or dystopian. (Admittedly, I don’t take the supernatural prophecies of inevitable Christian persecution seriously, so that might color my analysis a bit.)

    Sure, you no[d] your head vaguely at “other things” you don’t disagree with me on. They don’t deserve any more mention in your eyes.

    I’m kind of limited in my commenting time today, despite my usual sesquipedalian loquaciousness. You want to go over line items? I disagree about the “home commandeered” assuming we’re talking about the wedding chapel one. I know atheists hounded out of jobs, too – and that’s a problem, provided their religion or lack of it didn’t actually affect their job performance. And the fines – we’re already arguing about the scope of discrimination laws. For a venue, I think discrimination laws apply; for creative endeavors, I think an affirmative defense is possible.

    Are you quite sure that if it’s neither legal, economic, nor material, it has to be “spiritual”?

    One simple way to address this would be to give me a counterexample of something the law can address that’s “neither legal, economic, nor material”. Then I wouldn’t have to guess. You didn’t like it when I didn’t address your comment exhaustively, no?

  80. Tom Gilson –

    The florist who says no to a couple wanting flowers for their wedding isn’t calling gays inferior. She’s calling them wrong.

    And the hospital that refuses to let a gay partner visit their ill or dying loved one? The landlord who refuses to rent, or kicks out, anyone they find to be gay? The restaurant that refuses to serve people they decide are gay patrons?

    SteveK has said he doesn’t see any need for ‘anti-discrimination’ laws. Andrew W doesn’t see any Constitutional protection for mixed-race relationships. Do you see anything wrong with any of the above cases? That’s the kind of thing that was common in the Jim Crow south, except with blacks instead of gays. (Which, note, came after slavery, not during.)

    We can argue – and have been arguing – over where the boundaries should be. Not everything should come under the scrutiny of anti-discrimination law. But do you think that a racist who is forced by law to serve food to someone they despise is enslaved thereby?

  81. Some actions are indefensible, Ray. I won’t try to defend them. That doesn’t mean that all are.

    I draw the line at making persons feel inferior as human beings. I don’t want to be a part of that.

    But we ought to have the freedom to say, “What you’re doing is wrong, and I won’t participate with you in it.”

    I’m still wondering how you’d answer the bolded question in #86.

  82. Ray #91
    If I implied somewhere that we don’t need anti discrimination laws let me make it clear that I think we do need them.

  83. Tom –

    I’m still wondering how you’d answer the bolded question in #86.

    With Hofstadter’s mu. I didn’t say that Christians are “not under any persecution” in the U.S. What I did was contest that some specific cases you brought up were actually persecution (versus simply being unpopular), and put the situation in perspective – atheists have been living with that level of persecution for rather a while. (There aren’t any state constitutions that ban Christians from holding public office, for example.)

    Not only that, but I’ve said that I think Stutzman should be exempt from the discrimination laws, and cited the legal reasoning involved. I have agreed with you that it comes down to ” a violation of freedom of speech”.

    So your bolded questions are based on false premises. They are like “Have you stopped hitting your wife?”

    I’ve asked a couple specific questions of you, while we’re at it:

    “Do you think that atheists are persecuted in the United States? Or are they just unpopular?”

    Also, and extremely pertinent to this discussion, “do you think that a racist who is forced by law to serve food to someone they despise is enslaved thereby?”

    Feel like tackling them?

    SteveK – That’s what I got out of #54. If I misunderstood, that’s fine. You said, “I’d be okay with most any business refusing to serve me for whatever reason they have. If you don’t want my business, I’ll buy whatever I need elsewhere.”

    One of the problems in the South was that it wasn’t “most any”, it was ‘just about every’ and there was no real “elsewhere” to buy from. That’s why we have those anti-discrimination laws. They were structured to stop that, and prevent it from happening again. Pretty much any public-facing business was required to serve people regardless of race. (Churches have always been exempt, of course.)

    Perhaps one could make a case that the laws are due for a tune-up. But it’s important to understand why they are the way they are. If nothing else, it might help you understand what their proponents fear. And, note further – if devout Christians are becoming more unpopular, then you might want to think carefully about weakening legal protections for unpopular minorities.

  84. Tom –

    You missed generational.

    Hmm. Depending on what you mean – could I trouble you for an example? – I suppose that could be an aspect of ‘sociological’, but even there I think most people would agree that sociological factors that don’t impinge on legal, economic, material interests aren’t properly subject to laws.

    I mean, I’d ban most rap and country music if I could, but they don’t really infringe my rights.

  85. Hi Tom,
    #88

    “The florist who says no to a couple wanting flowers for their wedding isn’t calling gays inferior. She’s calling them wrong.”

    It seems to me she is calling SSM inferior to OSM, particularly if she doesn’t view it as “real” marriage at all. By extension, the participants, or the relationship they have together, is viewed as inferior. Their love is inferior. Their commitment is inferior. I really don’t think a thing can be wrong and not be inferior. In a previous post, you referred to OSM as food, and SSM as rocks. Your point was to say that they are polar opposites, but by all accounts, rocks are the most inferior food there is.

    Cheers
    Shane

  86. Hi Ray,

    “I’ve referred before to Eugene Volokh’s amicus brief in Elane Photography v. Willock. As I said, “photographers certainly, cake decorators almost certainly, and even florists probably can claim to be engaged in artistic expression, and hence deserve greater First Amendment protection than, say, the manager of a venue. Not unlimited protection – especially when alternatives are few and far between – but some.”

    A limo driver probably couldn’t legally refuse to drive a couple to and from a same-sex wedding (at least in those places where anti-discrimination laws include LGBTetc. citizens). I think a pretty good case can be made that more “creative” endeavors get more First Amendment protection.”

    Thanks for the link. I’m not sure of the argument regarding photographers freedom of expression being reflected in the subject of their photographs and the skills they use. Photojournalists capture images all the time of things they don’t agree with or condone. They make an interesting point about the “mood” of the occasion as captured in the photographs being a reflection of the artists beliefs, but I don’t think that is accurate. I think a singer or MC who performs in front of people and is paid to look like they are enjoying themselves has more of a case than a photographer who is in the background.

    Cheers
    Shane

  87. Shane, no, rocks are simply not food at all. Just as ashtrays are not food, and cars are not food, and lcd TVs are not food. If rocks are food, quite literally, everything in existence is food. Motor oil is food, toxic waste is food, your trashcan…also food. Your computer, that is food too, maybe it tastes good? Ya never know until you try.

  88. The Alabama state supreme court has this to say on the equal protection argument:

    “Windsor’s “equal dignity” rationale … appears to be is a legal proxy for invalidating laws federal judges do not like, even though no actual constitutional infirmity exists. Since the notion is not textual, it is at least incumbent upon federal courts employing it to strike down state-marriage laws to describe in concrete terms what “dignity” state-sanctioned marriage confers and therefore exactly what same-sex couples are deprived of by traditional marriage laws.”

    “By asserting that denying same-sex couples the status of marriage deprives them of “a dignity and status of immense import,” the Windsor Court made a moral judgment that a married couple has more dignity than an unmarried couple. … [This] is not, strictly speaking, a legal judgment … It seems at least disingenuous to find a constitutional infirmity with traditional marriage laws by way of a moral judgment when states have been forced to defend those laws apart from any moral or religious basis, an especially difficult task given that American ideas of marriage indisputably have been shaped by the Jewish and Christian religions. Moreover, because the Windsor Court’s moral judgment is (one must assume) not based on religion, then it must be asked what standard is being used to judge that marriage is better than non-marriage, that it contains some kind of higher dignity than other relationships? Because the notion is not contained in the Constitution, one may question whether it is nothing more than intuitions. At any rate, it is not a legal basis for striking down a validly enacted law.”

    I believe this is quite well said, good for Alabama.

  89. It seems at least disingenuous to find a constitutional infirmity with traditional marriage laws by way of a moral judgment when states have been forced to defend those laws apart from any moral or religious basis, an especially difficult task given that American ideas of marriage indisputably have been shaped by the Jewish and Christian religions.

    This accurate describes the situation. We see the same thing going on here on this blog. I’m glad the court put it this way because maybe it will force a response.

  90. SteveK –

    I was speaking for myself and what I would do.

    Tom wants us to think systematically, not individualistically, about marriage law. I’d think the same would apply to discrimination.law.

    Shane –

    I’m not sure of the argument regarding photographers freedom of expression being reflected in the subject of their photographs and the skills they use.

    Photographers select what and when to shoot, at what angle, with what lighting and what focus and shutter speed, etc. etc. etc. There’s a reason why people pay for a professional photographer instead of having Uncle Ralph do it. There’s even a notable difference between a dash cam vid and a photojournalist recording an event.

  91. Ray #102
    Stop trying to take my comment about what I would do and make that about what I want the law to be. I already said the anti-discrimination laws were needed. What more do you want?

  92. SteveK-

    Exactly, Alabama pointed out a clear double standard that only one side on this issue is allowed to argue on moral grounds. I hope it does force a response. I expect it will be entirely ignored; though.

  93. SteveK –

    Stop trying to take my comment about what I would do and make that about what I want the law to be.

    No, I understood that. I’m simply pointing out that what works individually, for you, might not work as a general principle in practice.

  94. Hi DR84,

    “Shane, no, rocks are simply not food at all. Just as ashtrays are not food, and cars are not food, and lcd TVs are not food. If rocks are food, quite literally, everything in existence is food. Motor oil is food, toxic waste is food, your trashcan…also food. Your computer, that is food too, maybe it tastes good? Ya never know until you try.”

    Yes, I understand Tom’s point. Any suggestion by someone that SSM is similar to OSM is as ridiculous as suggesting that rocks (motor oil, toxic waste, etc) is similar to food. A cursory glance can tell you how different these two things are. But how many people have you spoken to that would (or you reasonably think might) compare rocks to food? And how many people compare SSM and OSM? So it seems to me that Tom’s analogy is either ridiculously wide of the mark or people are being outrageously stupid about SSM?

    Is it possibly the latter? Am I and the millions of like minded SSM supporters just too stupid to be able differentiate between rocks and food? Until you supply evidence to back up that supposition I’m going to say that the reality is SSM and OSM are nowhere near as clear cut different as Animal/Vegetable vs Mineral.

    Therefore we are back to having two different forms of relationship, a florist saying that one of those relationships is wrong, which makes it inferior to the relationship that is right.

    Cheers
    Shane

  95. Shane-

    “So it seems to me that Tom’s analogy is either ridiculously wide of the mark or people are being outrageously stupid about SSM?”

    I am going to go with outrageously stupid. Mostly kidding, really I would suggest most SS”M” supporters are in it because they desire to just get along to get along, they are ignorant, or they are stubborn.

    “Therefore we are back to having two different forms of relationship, a florist saying that one of those relationships is wrong, which makes it inferior to the relationship that is right.”

    Do you find this to be problematic? Two different forms of relationship is exactly the case. Why must the florist treat two different forms of relationships as if they are the same?

  96. Hi Ray,

    “Shane –
    I’m not sure of the argument regarding photographers freedom of expression being reflected in the subject of their photographs and the skills they use.

    Photographers select what and when to shoot, at what angle, with what lighting and what focus and shutter speed, etc. etc. etc. There’s a reason why people pay for a professional photographer instead of having Uncle Ralph do it. There’s even a notable difference between a dash cam vid and a photojournalist recording an event.”

    Of course. It’s a skilled profession, no too ways about it. But it is a profession which, by it’s very nature, the selfie generation not withstanding, is entirely separate from it’s subject. For example,

    http://www.championsgallery.com/Onion%20Def%20Secretariat.jpg

    Do you think the photographer of the above image has strong feelings for or against horse racing?

    Cheers
    Shane

  97. Hi DR84,

    “Shane-

    “So it seems to me that Tom’s analogy is either ridiculously wide of the mark or people are being outrageously stupid about SSM?”

    I am going to go with outrageously stupid. Mostly kidding, really I would suggest most SS”M” supporters are in it because they desire to just get along to get along, they are ignorant, or they are stubborn.”

    Yes, so we are inferior, by way of our faulty reasoning, stubbornness, etc. More on this below.

    We desire to get along to get along? Surely we would have let the status quo stay as it was, because there would have been more people to “get along with” in the group opposing marriage equality. Change happens because of the opposite of the “get along to get along” mentality. What do you think they are ignorant of and stubborn about?

    “Therefore we are back to having two different forms of relationship, a florist saying that one of those relationships is wrong, which makes it inferior to the relationship that is right.”

    Do you find this to be problematic? Two different forms of relationship is exactly the case.”

    One of which is inferior to the other. My entry into this thread was because of Tom saying he didn’t want people treated as inferior, just wrong, as though there was a major difference there.

    “Why must the florist treat two different forms of relationships as if they are the same?”

    Because the state treats them as if they are the same and she is bound by the law that compels her to do likewise. If she supplies flowers for weddings, and the state recognises SSM as a wedding, then she cannot refuse to supply flowers for a SSM. She is more than welcome to think people wrong and or inferior to other couples as long as she doesn’t treat them any differently from her open to the public business.

    This last couple of threads have reminded me of this

    http://youtu.be/sFBOQzSk14c

    You think SSM proponents are either Stan, a man wanting to have something which is impossible, or Judith fighting to get him those rights even though she knows that he can’t actually achieve what he wants, even if he did have the right. (I know you take it one step further, because you actually think there is something damaging by giving him those rights, rather than it just being a pointless waste of time.) At each of yours, and SteveKs, and Toms responses to Ray, Skeptic and OS, I could literally hear the frustration of Reg, as played by John Cleese, that the SSM proponents are asking for the ridiculous. However, the salient exchange is this;

    Reg: You can’t have babies, stan.
    Stan: Don’t you oppress me.
    Reg: I’m not oppressing you, Stan. You don’t have a womb. Where’s the foetus going to gestate? You going to keep it in a box?

    Reg explains the problem with Stan’s desire to be a woman and have a baby. In 5 seconds he has done away with any argument that might be bought up regarding “men’s rights to have babies”. Because it’s an open and shut, clear cut case of biology. There is no arguing with it. I have yet to see any good reason that SSM should not be recognised by the state. For someone that believes the two types of relationships are as different as rocks and food it should be incredibly easily to demonstrate. You think I’m just trying to get along, am ignorant or stubborn. The truth of the matter is that no-one here has made a good case against it. Or any case at all. Tom asks in another thread what makes SSM “essentially the same” as OSM, but the question needed to be answered is what makes them “essentially different”. Stan does not have a womb. What is SSM missing that stops it from being a marriage?

    Cheers
    Shane

  98. Also DR84,

    “By asserting that denying same-sex couples the status of marriage deprives them of “a dignity and status of immense import,” the Windsor Court made a moral judgment that a married couple has more dignity than an unmarried couple.”

    No, the judgement made is “a couple denied the right to marry denies them a dignity.” A couple choosing to be unmarried has the same dignity as a couple choosing to be married. It is when the right to marry is denied them that dignity is denied them.

    Cheers
    Shane

  99. Shane-

    “Because the state treats them as if they are the same and she is bound by the law that compels her to do likewise. If she supplies flowers for weddings, and the state recognises SSM as a wedding, then she cannot refuse to supply flowers for a SSM. She is more than welcome to think people wrong and or inferior to other couples as long as she doesn’t treat them any differently from her open to the public business.”

    Do you think the law ought to bind her to treat these two different relationships, one of which she has moral issues with celebrating, the same? I am not asking what the law is, I am asking if you believe the law is just. I find it alarming, to say the least.

    “No, the judgement made is “a couple denied the right to marry denies them a dignity.” A couple choosing to be unmarried has the same dignity as a couple choosing to be married. It is when the right to marry is denied them that dignity is denied them.”

    They are only being denied the dignity if their relationship is a marriage.

  100. Shane-

    “You think I’m just trying to get along, am ignorant or stubborn. The truth of the matter is that no-one here has made a good case against it. Or any case at all. Tom asks in another thread what makes SSM “essentially the same” as OSM, but the question needed to be answered is what makes them “essentially different”.”

    I may be wrong here, but this strikes me as a distinction without a difference. Its just the same question being asked a different way.

    -OSM involves a man and woman, SS”M” does not. This is an essential difference.
    -By nature OSM is connected to having and raising children. By nature, SS”M” is not. This too is an essential difference.

    I imagine neither of those things are unknown to you. You have also noted that SS”M” and OSM are (essentially) different kinds of relationships. I am not entirely sure what you are getting at here with this question. It seems the answer has already been settled for you.

  101. Hi DR84,

    “Do you think the law ought to bind her to treat these two different relationships, one of which she has moral issues with celebrating, the same? I am not asking what the law is, I am asking if you believe the law is just. I find it alarming, to say the least.”

    Do you think the law is binding her to “celebrate” either of these relationships? Do you think a description of her business activities includes the fact that she must celebrate the relationships along with her customers? This is where you are over reaching your suggestion of religious freedom.

    The law binds her to treat all potential customers equally. What she thinks of the relationships is irrelevant.

    “They are only being denied the dignity if their relationship is a marriage.”

    If you like. But do you agree that the Alabama Supreme Court misspoke when it characterised Windsor Courts thoughts on the dignity of couples?

    Cheers
    Shane

  102. Hi DR84,

    “I may be wrong here, but this strikes me as a distinction without a difference. Its just the same question being asked a different way.”

    The difference is because there needs to reasons for an exclusion. You list the reasons that 10 year olds shouldn’t have drivers licenses. They are easy to quantify. You list reasons that women shouldn’t own property or have they right to vote. They are not easy to quantify. What are the reasons that gay people should not have the right to marry?

    “-OSM involves a man and woman, SS”M” does not. This is an essential difference.”

    And why does this mean that OSM is legitimate and SSM needs the quotes around it? By essential difference I meant the essence that makes some things marriages and some things not.

    “-By nature OSM is connected to having and raising children. By nature, SS”M” is not. This too is an essential difference.”

    What do you mean by nature? Marriage is a human social construct not a natural thing. Do you want to say that it is impossible for a SSM couple to raise a child that they are both the biological parent of? I will grant that but there are some OSMs that can be described in the same way. This means that you can’t use that as an essential difference, or you are going to have to start using quotes when describing some OSMs as well.

    Cheers
    Shane

  103. Shane-

    “What are the reasons that gay people should not have the right to marry?”

    Of course gay people should have the same right as everyone else to have their marital relationships recognized. I doubt there is anywhere here who would argue otherwise.

    “What do you mean by nature?”

    In this case, by nature means something like working as intended or designed. For the most “by nature” and “by design” seem like interchangeable terms to me, for what that is worth. Also, in this case, it is meant to convey that no human being is responsible for how things work. Human being did not invent human nature, that came from somewhere else.

    As for the essential difference that OSM is, by nature, connected to having and raising children. That either is or is not an essential difference, it cannot be in some cases and not in others. It also matters so long as the institution of marriage has some connection to having and raising children.

    The infertility objection has been raised over and over. Remember, only opposite sex couples can experience infertility together. So this essential difference applies to them as well as it does for fertile couples for exactly the same reason. This objection; though, on the surface it may appear to work for your position, actually works against it.

  104. What are the reasons that gay people should not have the right to marry

    They certainly do have the right to marry. Always had it. Still do. Why are you even asking this question? To me it shows that you lack understanding.

  105. SteveK-

    I wonder the same thing, why that question gets asked over and over and also why the infertility objection gets raised over and over. If I was to guess in the most charitable way possible, I imagine it is for practical reasons. We suggest that the institution of marriage does not include same sex relationships. Even though, the argument has nothing to do with homosexual relationships, practically speaking, the argument functions to explain why they should not be recognized as marriages. Which is what (many) gay people want, hence it practically speaking these arguments can be used to deny them the “right” that they want.

    I think the same is true of the infertility objection, practically speaking both same sex couples and couples that experience permanent infertility cannot have children together.

    Again, I am intending to be charitable and hoping that this is a fair characterization.

  106. A: What are the reasons that Group X should not have the right to eat food?

    B: They do have that right.

    A: No they don’t. Group X wants to consume nutrients just like everyone else but the government doesn’t recognize that for Group X.

    B: What you meant to say is that the government doesn’t recognize putting food up your nose as ‘eating food’.

    A: Exactly. That’s discrimination. They should recognize this as eating food because it’s ‘consuming nutrients’.

    B: No, it’s not the same thing. It’s different. Eating food is a specific thing that falls under the more general category of consuming nutrients. Putting food up your nose can belong to the category ‘consuming nutrients’ but it cannot belong to the category ‘eating food’

    A: You’re a bigot. [insert emotional argument here]

  107. Hi DR84,

    “Of course gay people should have the same right as everyone else to have their marital relationships recognized. I doubt there is anywhere here who would argue otherwise.”

    lol. My mistake there. Let me be clearer. In the other thread you say this;

    “I believe the distinction between cohabiting couple and married couple is intent. The married couple has openly expressed their intent to remain together in a monogamous relationship. The cohabiting couple has not. The married couple has placed on themselves obligations and duties expressed in vows that the cohabiting couple has not. These obligations and duties are not merely contractual.”

    Why should a homosexual couple be denied the ability to “express their intent” in the same way? Why should a homosexual couple be denied the right to “place on themselves obligations and duties, etc”?

    “In this case, by nature means something like working as intended or designed. For the most “by nature” and “by design” seem like interchangeable terms to me, for what that is worth. Also, in this case, it is meant to convey that no human being is responsible for how things work. Human being did not invent human nature, that came from somewhere else.

    As for the essential difference that OSM is, by nature, connected to having and raising children.”

    Reading that explanation, I’m still confused about what you are saying. Obviously human beings did not create their own nature. But you are using the phrase “by nature” to describe marriage, which is a construct created by mankind.

    “That either is or is not an essential difference, it cannot be in some cases and not in others.”

    Having children cannot be an essential part of of marriage if there are marriages that exist without them.

    “The infertility objection has been raised over and over. Remember, only opposite sex couples can experience infertility together. So this essential difference applies to them as well as it does for fertile couples for exactly the same reason. This objection; though, on the surface it may appear to work for your position, actually works against it.”

    What about married couples that choose not to have children? Seems to me they would be identical whether they were heterosexual or homosexual. What about people too old to have children? Again, that seems identical to me.

    And although the experience of being unable to conceive is experienced together, infertility is usually only affecting one of the married couple. Work arounds with donor sperm or egg are commonplace now. This seems pretty close to the same scenario for me as well. Not to mention adopting or fostering which is identical for both types of marriages.

    I am interested in hearing more of how you think infertility works against my position, because I don’t follow at the moment.

    Cheers
    Shane

  108. Hi SteveK,

    “What you meant to say is that the government doesn’t recognize putting food up your nose as ‘eating food’.”

    Why is gay marriage “eating food wrong”? (Is it possible we’re close to getting an answer?)

    Cheers
    Shane

  109. Shane,

    But you are using the phrase “by nature” to describe marriage, which is a construct created by mankind.

    If you’d read some of the things Tom has been asking you to read, you’d understand a lot better why these kind of statements makes no sense. If mankind constructs marriage, then what is the principle-based argument that a group of people are being unfairly discriminated against? You’re saying mankind created something morally wrong. How does that happen within the law? Does the law have a moral component?

    I’ll quote Tom from here.

    First, if SSM advocates hold that there is no principled basis upon which marriage is defined, then even from within their own position they have no basis to support the way they have treated SSM opponents: condemning us as hateful, homophobic, and so on. On their view, there is no principle-based correct answer to “what is marriage?” Based on that, even their own view cannot be the right one, so all we really have is a difference of opinion. Since when is a difference of opinion equivalent to hate?

  110. Why is gay marriage “eating food wrong”?

    I thought I explained it clearly – because, by analogy, it isn’t eating. At best it fits the more general (analagous) category ‘consuming’ or ‘taking in’.

    How does this relate to marriage? All forms of love are not the same. At best gay love fits the more general category of love. But gay love is not the same as heterosexual love is not the same as platonic love is not the same as sibling love – and eating food is not the same as taking in nutrients.

  111. What about married couples that choose not to have children?

    That would be an example of an incomplete, or imperfect, marriage. All marriages are imperfect for the reason that no relationship is perfect in every way. If love is part of the essence of marriage, failing to fully and perfectly love each other doesn’t do anything to invalidate the fact that the relationship is indeed a marriage.

    Consider the triangle analogy if it helps. Slightly crooked sides and imperfect angles don’t change the fact that my imperfect drawing of a triangle is indeed a triangle. The essence of a triangle is captured in my drawing even though it fails to be a perfect triangle.

  112. Hi SteveK,

    “Shane,

    But you are using the phrase “by nature” to describe marriage, which is a construct created by mankind.

    If you’d read some of the things Tom has been asking you to read, you’d understand a lot better why these kind of statements makes no sense. If mankind constructs marriage, then what is the principle-based argument that a group of people are being unfairly discriminated against? You’re saying mankind created something morally wrong. How does that happen within the law? Does the law have a moral component?”

    I don’t understand what you are saying here. Are you suggesting mankind can’t make a law that is wrong? Or unfairly discriminatory? I will read that article you linked to, but it is thousands of words, and so I am sure covers more than the point you are trying to make. Skimming through it did not clarify things for me.

    “I’ll quote Tom from here.

    First, if SSM advocates hold that there is no principled basis upon which marriage is defined, then even from within their own position they have no basis to support the way they have treated SSM opponents: condemning us as hateful, homophobic, and so on. On their view, there is no principle-based correct answer to “what is marriage?” Based on that, even their own view cannot be the right one, so all we really have is a difference of opinion. Since when is a difference of opinion equivalent to hate?”

    Have I accused anyone of being hateful? Or homophobic? To paraphrase Tom when he was speaking on behalf of the florist, I just think you’re wrong.

    Cheers
    Shane

  113. Shane, you’re supporting a view of marriage that others are bashing us with. They’re not just telling us we’re wrong, but we’re hateful, discriminatory, homophobic, etc., and they’re doing it based on a view of marriage that they can’t rationally support.

    You’re not doing all the rude things they’re doing, but you’re accepting their unsupported and unsupportable view of marriage.

    So thank you for not going into serious condemnation mode toward us, but wouldn’t you want to base your views of marriage on something that made more sense?

  114. “Why is gay marriage “eating food wrong”?

    I thought I explained it clearly – because, by analogy, it isn’t eating. At best it fits the more general (analagous) category ‘consuming’ or ‘taking in’.

    Yes the analogy was quite clear.

    “How does this relate to marriage? All forms of love are not the same. At best gay love fits the more general category of love. But gay love is not the same as heterosexual love is not the same as platonic love is not the same as sibling love – and eating food is not the same as taking in nutrients.”

    Now maybe we are getting somewhere. Why can a man not love a man in the same way he loves a woman?

    Cheers
    Shane

  115. “What about married couples that choose not to have children?

    That would be an example of an incomplete, or imperfect, marriage. All marriages are imperfect for the reason that no relationship is perfect in every way. If love is part of the essence of marriage, failing to fully and perfectly love each other doesn’t do anything to invalidate the fact that the relationship is indeed a marriage.”

    So even though gay love is different to heterosexual love, and you use that as a reason to say gay love can’t make a marriage, you say that a failing of heterosexual love (and I’m assuming you would go so far as to say a total absence of that love) doesn’t invalidate a heterosexual marriage. This seems to invalidate the connection of love to a real marriage. Though I do still look forward to a reason why gay love is different/lacking.

    Cheers
    Shane

  116. “If HHS laws can be bypassed solely on the basis of religious freedom, then I don’t see why the same thing can’t happen when it comes to SSM and running a bakery business.”

    I agree, it seems odd. The only difference I can see is that the HHS thing is discriminatory against nameless, faceless women whereas the case with the florist has a named “victim”. Perhaps the Hobby Lobby case would have gone differently if it was the corporation denying health access to specific named women?

    Cheers
    Shane

  117. Hi Tom,

    “Shane, you’re supporting a view of marriage that others are bashing us with. They’re not just telling us we’re wrong, but we’re hateful, discriminatory, homophobic, etc., and they’re doing it based on a view of marriage that they can’t rationally support.

    You’re not doing all the rude things they’re doing, but you’re accepting their unsupported and unsupportable view of marriage.

    So thank you for not going into serious condemnation mode toward us, but wouldn’t you want to base your views of marriage on something that made more sense?”

    I do have to read more of the articles that are linked to, and the articles that they link to, and I found that thread you suggested which has 200+ replies, so plenty to read up on there to get a handle on your position. But I am not just accepting the view of others. It seems to me that if a man can love and marry a woman, he can love, and should be able to, marry a man.

    To answer the questions you asked in the other thread;

    The state should be involved in gay marriage for the same reasons it’s involved in straight marriage. Do you have reasons to think the state should treat them differently? This may be answered in the reading ahead of me.

    And is calling the two different relationships two different names really going to make things better? There is a section in the paper about how gay marriage affects straight marriage so maybe this question is answered as well, but to me, having two different names for the same legal staus seems separatist and “whites only” drinking fountains.

    Will obviously respond more after I have caught up on the previous conversations.

    Cheers
    Shane

  118. Shane,

    …you say that a failing of heterosexual love (and I’m assuming you would go so far as to say a total absence of that love) doesn’t invalidate a heterosexual marriage. This seems to invalidate the connection of love to a real marriage.

    It seems that way because you are still confused about the relationship between essence, form, existence – and probably more. Not that I completely understand it either, but maybe just a little more than you do.

    Did you ponder the triangle analogy where a triangle exists in a form that lacks features of triangle-ness? How can that be? Are humans defining triangle-ness or marriage? Not at all.

    Human beings are similar. If I take away the rational mind of a human being or alter it’s DNA, it becomes a human being that is damaged/altered rather than becoming some other kind of being.

    Though I do still look forward to a reason why gay love is different/lacking.

    Isn’t it obvious? Gay love is different in that it isn’t imperfect heterosexual love. It’s something completely different. Gay love can never become heterosexual love in any form. The word “gay” is a meaningful part of the relationship for a reason.

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