Did Iowa’s DOMA backfire?
CommentsThe pro-gay-marriage lawsuit was occasioned by Iowa’s version of the Defense of Marriage Act, defining marriage as the union between a man and a woman. The court used the lawsuit as an occasion not only to overturn Iowa’s DOMA, but to rewrite all state statutes limiting marriage to male-female couples.
Which makes me wonder - if there never was an Iowa DOMA, would the Iowa Supreme Court not have had a chance to implement gay marriage, at least not right away?
Absurd isn’t it?
certianly Marty, but check out the you tube dot com watch?v=y2s2R5qKhbo
or look at the bright Nate Silver. . . at fivethirtyeight.com 2009 04 will iowans uphold gay marriage html and his predicitions. . .
but then again, oh happy day in Vermont. YUCK YUCK YUCK.
One thing that needs to be stressed publicly, and it has not been stressed publicly, is that SSM does not just mean that gays will be able to marry.
It means that there is, according to the state, no difference between same-sex and opposite-sex marriages. And, as corollary, no difference between same-sex and opposite-sex sexual relationships. As corollary to that, no difference between same-sex and opposite-sex relationships, sexual or not (More on this later). As a further corollary, that there is no difference between same-sex and opposite-sex sex.
This really needs to be stressed to the public. And the question needs to be asked, what will this mean to the next generation.
Rusty, you’ve heard the adage, be careful what you wish for; you just may get it.
A prediction: In fifteen to thirty years, you will see some brave gay leaders, many of whom originally supported SSM, publicly calling for a repeal of it.
Sorry RK, I have my crystal ball packed away and can’t reach my seers in the Wiccan community so, maybe you can enlighten me as to what horrors you seem to be forecasting.
Please relieve your stress, and share. . .
ciao
ah, RK, didn’t realize you got a post in before my request. . .so a recall by GAY leaders, denouncing SSM. . .but you don’t say why. WHY? the recall.
I am sure David will be around in 15 - 30 years if he is not living in Isreal. but then again you signify Gay Leaders, not folk like David.
“Which makes me wonder - if there never was an Iowa DOMA, would the Iowa Supreme Court not have had a chance to implement gay marriage, at least not right away?”
As an attorney I can answer - No. Of coarse my legal training gives me no more expertise than anybody off the street. If you read the different opinions that have imposed same-sex “marriage” you will find that they offer a grab bag of justifications. Some have used civil unions as an excuse to go further to full marriage. Other like Massachusetts had no DOMA and still imposed same-sex “marriage”. The original Hawaii case was predicated on gender discrimination more than homosexuals as a suspect class.
Here - law professor Paul Campos who backs gay marriage –describes what absurd a legal ruling it was.
http://www.thedailybeast.com/blogs-and-stories/2009-04-04/right-decision-wrong-reason/full/
Rusty,
We can work from the middle paragraph of my first post, and I’ll be glad to elaborate. But first of all, do you deny that this is in fact what SSM will be saying?
It means that there is, according to the state, no difference between same-sex and opposite-sex marriages. And, as corollary, no difference between same-sex and opposite-sex sexual relationships. As corollary to that, no difference between same-sex and opposite-sex relationships, sexual or not (More on this later). As a further corollary, that there is no difference between same-sex and opposite-sex sex.
WIll SSM folk be stating that there is no difference between SS and OS sex? Is that your question RK?
Again, are you denying that, as far as the state is concerned, this is in fact what SSM will be saying? Or, at least, that “the differences don’t make any difference”, and that we shouldn’t think of them any differently, regardless of biology?
If the above claims are true, then it only follows that as far as the State is concerned, there is no difference between Male and Female.
Which is an utterly ridiculous assertion.
the state. . .of IOWA. . .
” . . . (the) decision stemmed from a 2005 lawsuit filed by six gay and lesbian couples who were denied marriage licenses by the Polk County recorder’s office. The seven justices affirmed Polk County Judge Robert Hanson’s ruling that Iowa’s ban on same-sex marriages treated gay and lesbian couples unequally under the law.
“We are firmly convinced that the exclusion of gay and lesbian people from the institution of civil marriage does not substantially further any important governmental objective,” the court said in an opinion written by Justice Mark Cady. “The legislature has excluded a historically disfavored class of persons from a supremely important civil institution without a constitutionally sufficient justification.”
The ruling appeared to dismiss the option of civil unions as a marriage alternative, finding that “a new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in our constitution.”
www dot desmoinesregister dot com article 20090403/NEWS/90403010
but then we have the little ammendment 14: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
WE hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. DOI
In America, the United States of America, no one should be treated differently. and WE shouldn’t think of THEM differently. . .
Well, Rusty, I guess you’re not denying that SSM will indeed be saying what I said in my first post of this thread.
In America, the United States of America, no one should be treated differently
So we shouldn’t treat children different from adults? Okay, before you scream about that, let’s take something a little less extreme: Is it wrong to have minimum age requirements for Representative (25), Senator (30), or President (35)?
As you can see, the debate is about just what the 14th Amendment means. And it will continue to be whether SSM is legalized or not, because there will still be a lot of circumstances under which people are treated differently, for various things, for various reasons, for which someone can still cry “unfair”.
“But of course I’m not talking about that!“, you may say. Just as most people said regarding same-sex marriage. Until very recently, virtually all Americans would have laughed at the idea that the 14th Amendment meant that.
and WE shouldn’t think of THEM differently. . .
See, in order to not think of same-sex and opposite-sex marriages differently, we either have to pretend that the real differences between them don’t exist, or that they are so trivial as to not matter. So, in other words, there really then is no difference between same-sex and opposite-sex sex, regardless of the fact that one can produce the next generation and the other cannot, and for people to continue to think that this difference is important then becomes a factor in “prejudice” against SSM couples, so, the next step is to take action against this “prejudiced” belief. And this is why I don’t believe for one minute Mark’s assertion that SSM will be “enough”. For good or bad, historically, de jure equality has never been seen as enough, and if there is one thing in this debate I am more sure of than that SSM will be a disaster, it is that it will not be seen as “enough”.
To combat the de facto prejudice and inequality that remains, it will be argued that action must be taken to convince the public, and particularly the next generation, that there is no real difference between same-sex and opposite-sex marriage. And thus that there is no difference between same-sex and opposite-sex sexual relationships. And no difference between same-sex and opposite-sex relationships, sexual or not (blurring the distinction between friendship and sexual/romantic attraction). And, finally, yes, that there is no difference between same-sex and opposite-sex sex, or at least that the difference makes no difference, and that the young must stop thinking of it as a difference of any meaning. Lastly, I would not be at all surprised if it is argued that the “yuck factor” many of them will still harbor toward same-sex sex has to be combated more strongly by getting them more used to it somehow.
But maybe I’m getting ahead of myself here. First, let’s all ask:
What will be the effect, down the line, of saying that there is no difference between same-sex and opposite-sex marriages?
What will be the effect, down the line, of saying that there is no difference between same-sex and opposite-sex sexual relationships?
What will be the effect, down the line, of saying that there is no difference between same-sex and opposite-sex relationships, sexual or not?
What will be the effect, down the line, of saying that there is no difference between same-sex and opposite-sex sex?
People, including legislators and judges, have to really think about these questions in depth, and use their imagination (including perhaps asking themselves how it would have been for them to have grown up with these messages), and not merely resort to pretty-sounding platitudinous statements about “equality”, “dignity”, etc. I will examine each of these questions in more detail in longer posts soon.
BTW, my statement about brave gay leaders (not all, but some) calling for the repeal of SSM is based on two things, 1) because of having to deal with being seen as different all their lives, many gay people develop an admirable quality of independent thought, 2) when they see the negative results of SSM, they will feel that they are the ones who will have to speak out because heterosexuals will be afraid to.
DB: “Which makes me wonder - if there never was an Iowa DOMA, would the Iowa Supreme Court not have had a chance to implement gay marriage, at least not right away?”
My guess is it wouldn’t have made much difference. Even without DOMA, the plaintiffs would surely have been turned down for a marriage licence, which would have given them the standing to sue, and the rest would have unfolded much as it did.
RK: “So we shouldn’t treat children different from adults?”
Not at all necessarily. I think what you’ll find that Rusty is trying to draw your attention to is that but what the 14th amendment means is that, however much you might think it should be otherwise, legally the burden of proof is squarely on you. It’s not that you can never treat people differently, it’s just that you need a bloody good reason, and “We’ve always done it that way.” and “If we change things, something might go wrong!” don’t even begin to cut it.
RK: “So, in other words, there really then is no difference between same-sex and opposite-sex sex, [...]”
No, just none where your side has made a coherent argument that denying marriage to same-sex couples is an appropriate legislative response, considering the three tests that are standardly and quite reasonably applied: is there a compelling government interest, is it narrowly tailored, and is it the least restrictive means?
RK: “[...] regardless of the fact that one can produce the next generation and the other cannot, [...]”
… and in particular, none where your side has made a coherent argument from this starting point. Producing the next generation is clearly a compelling government interest, but the idea that you can somehow promote this by withholding SSM isn’t just a weak argument, it’s surrealist nonsense. It’s not that it’s not narrowly tailored enough, or too restrictive, it’s that it’s absurd to imagine that it would be effective at all. Reinstituting sodomy laws might start to have some effect, but if you’re not prepared to do that then you’re perfectly obviously not serious when you propose to do it by withholding SSM.
Further to my reply to RK, nonsense almost this surrealist: http://www.youtube.com/watch?v=L0pPEAdDn64 .
RK
A same Sex Couple can produce and raise the next generation. While not through natural means, but they can through Adoption, IVF, or other treatments that are similarly used to help heterosexual couples who have reproductive issues have children.
There is even a man who, while born a woman, went through sex change surgery to become a man, but had his female reproductive organs left in who has carried and given birth to a child. This person is legally a man.
The argument that same sex couples can not have children is incorrect.
To state the obvious:
Adoption is not procreation.
No one-sexed twosome can create children. They have to go outside of the twosome because human procreation is opposite-sexed, not one-sexed.
Medical treatments for infertility or for subfertility treat a disability of the reproductive organism — ie. the man-woman duo is a single reproductive organism.
To elaborate on this point: Most of infertile married couples do not resort to third party (i.e. donor) procreation. Typically, they resolve their problem through changes in behavior. A tiny minority of the small minority of married people who experience infertility do use the more interventionists treatments; those who use IVF or ARTs generally do NOT use donors. This illustrates that the treatments are not used by one-sexed arrangements in the same way that these treatments are used by bonafide infertile or subfertile couples.
No one-sexed arrangement is fertile in the first place and so is never infertile nor subfertile. The lack of fertility in a one-sex-short scenario is nonfertility and is normal. It is intrinsic to the lack of one sex. That lack is not infertility.
The treatments to which Vast referred are dissimilair in that important way. Nonetheless, when a one-sexed scenario uses donors it goes to show that such a scenario would be nonfertile without the other sex.
The example of a woman who had her breasts cut-off is an aberration and does not change the opposite sex nature of human procreation. It rather proves the point I elaborated upon just now.
Marriage unites fatherhood and motherhood. The one-sexed arrangement, where children are born purposely to be either motherless or fatherless, segregates fatherhood and motherhood. Thus it is not similair to marriage when it comes to children.
Adoption and third party procreation (use of donor) are alike in important respects: both come with at least two prerequisits. Parental relinquishment (voluntary or forced and - in the case of donors also pre-emptive). Also, government intervention to assign a replacement parent. This is the virtual inverse of the marital presumption of paternity whereby the husband is presumed (via a vigorously enforced legal system) to be the father of his wife’s children. And that has a sexual basis that is extrinsic to any arrangement that lacks either of the sexes. The lack of the other sex is not infertility nor does it provide a same-sex sexual basis for deeming SSM to be a public sexual type of relationship. Adoption does not do the trick any betterthan third party procreation.
In sum, same-sex twosomes cannot have children even if children can be acquired through some other nonsexual means outside of the twosome’s relationship. This points not to the core of marriage — nor even to the core of SSM — but outside of marriage. And when either adoption or third party procreation is dragged onto the pro-SSM stage, it is done not to highlight the needs of children but to excuse needy adults.
Adoption does not justify the merger of SSM with marriage. Neither should third party procreation practices lead marriage around by the nose. Quite the opposite. Marital status is a legitimate factor in prioritizing prospective adoptors. And third party procreation is extramarital procreation even when married people use it; on the other hand, this practice as used by married people at least integrates fatherhood and motherhood — just as step-parent adoption which is based on the union of husband and wife.
The law makes the same distinctions that I have just described. So Vast’s response to RK is mistaken on that score as well.