Any secular justification for "Defense of Marriage"?

[Roonwit]

Wow, I couldn't disagree more.

God's commandment to Adam and Eve was to "be fruitful, and multiply" and His description of why He created Eve for Adam was "Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh."

Taken together, if those two statements by God are not about marriage and children, then I don't know what is.

Those are really very secular reasons. The real religious reason for marriage (at least from a Christian point of view) is given in Ephesians 5, which says that marriage is a picture of Christ's relationship with the Church.

Roonwit

 

[Queller]

And what is the legal burden?

That there is a substantive state interest met by preventing same-sex couples from marrying.

And if there is dispute between the legislature and the courts over whether it has been met, who has the final say?

The courts.

The third option seems to be revolution. Is that what you mean? The army, basically (whoever's is strongest).

No, not at all. In the US (I don't know about the UK), if a position has enough support among the people, it can be placed on the ballot for voting regardless of what the legislature does.

It's clear that what you actually mean is that the burden of proof is on whichever side disagrees with you.

Then you don't understand what I'm saying. I mean that once the side with the positive claim (that SSM should be legal) has met that burden of proof, the burden then shifts to the other side to explain why the negative claim (that SSM should continue to be illegal) should remain viable. That is true regardless of the issue under debate.

It's not an analogy, it is the traditional understanding of what marriage is which is what is under discussion.

You have given no evidence that this is the case when it comes to government recognition of marriage.

That'll be a yes to that one, then. Thanks.

Do not lie and falsely put words in my mouth. I said what I meant. Those "key features" are not requirements for marriage therefore basing any arguments against SSM on them is irrelevant.

Can close relatives not love each other?

Ah yess. nothing like shifting the goalposts.

Can immature people not love each other?

Where did I claim that the people had to be mature?

Can three people not all love each other?

Of course but I was simply using your own definition as two people getting married is the issue under discussion. The fact that you incorrectly believe that one must answer the question of polygamous marriage before SSM can be decided is irrelevant.

No they aren't, because governments recognised marriages long before those benefits were given.

Care to provide support for this claim?

No you haven't.

I have given you examples of several laws that relate to government recognition of marriage that have little to nothing to do with children. You have yet to provide even a single example of a law that shows marriage is only about children.

 

[Queller]

Those are really very secular reasons.

God's Words are secular reasons? Are you serious?

The real religious reason for marriage (at least from a Christian point of view) is given in Ephesians 5, which says that marriage is a picture of Christ's relationship with the Church.

Sorry but Ephesians 5 is not a religious reason for marriage, but an analogy of how a marriage should work once entered into. It is not why marriages should occur to begin with.

 

[trunks2k]

The courts.

To a certain extent. The ultimate arbitrator is the constitution (federal or state). Courts have the power to interpret the constitution and what does or does not go against it. The legislature can change the constitution. Well, usually at least... California's Prop 8 is an example where changing the state constitution conflicted with the federal constitution.

No, not at all. In the US (I don't know about the UK), if a position has enough support among the people, it can be placed on the ballot for voting regardless of what the legislature does.

Not on a federal level. Federal laws are not ballot initiatives. I'm not sure if all states allow for ballot initiatives (I'm in PA and don't recall voting on any state level laws). Though CA is well known for it. Pretty much all local municipalities may can have ballot initiatives.

 

[Roonwit]

That there is a substantive state interest met by preventing same-sex couples from marrying.

The courts.

And a number of states have put forward such substantive state interests, but the courts have decided that they aren't substantive enough. This is the courts over-reaching themselves.

Quis custodiet ipsos custodes? If I were an American, I would be very worried about handing over such power to the courts to invent new laws all over the place. The courts exist to apply and interpret the laws within the spirit with which they were made. To create substantially new law, the courts have to send the question back to the legislature. Otherwise you create this monster that cannot be tamed. That is the stuff civil wars are made of. The legislature (or, if you have it, the public plebiscite) is the place to make such decisions because there is democratic accountability.

We had a number of cases of this type in the UK in recent years, on the issue of euthanasia. The complainants argued that, since able-bodied people are able to commit suicide, it is discrimatory against disabled people not to be assisted in dying. The courts, quite properly, said each time that this would be to create new legal positions that were not envisaged by those instituting the law, and therefore are a case for parliament to decide, not the courts. That's what they should also be doing with SSM.

No, not at all. In the US (I don't know about the UK), if a position has enough support among the people, it can be placed on the ballot for voting regardless of what the legislature does.

Ah, ok - we don't have that in the UK. It's a good idea

Then you don't understand what I'm saying. I mean that once the side with the positive claim (that SSM should be legal) has met that burden of proof, the burden then shifts to the other side to explain why the negative claim (that SSM should continue to be illegal) should remain viable. That is true regardless of the issue under debate.

Yeah, but who judges the burden of proof? Even in this thread, we disagree with each other about how well we have each established our positions. What I am saying is that the default position is the status quo. If the proponents can convince enough people that change is needed, change will come. But if they can't, things should stay the same. You seem to be arguing in this case that change is the default position.

You have given no evidence that this is the case when it comes to government recognition of marriage.

I'm waiting to see whether you can provide any evidence that the government ever had a reason for recognising marriage, beyond the fact that it is an institution more ancient and more well established and more fundamental to society than is the government itself.

Do not lie and falsely put words in my mouth. I said what I meant. Those "key features" are not requirements for marriage therefore basing any arguments against SSM on them is irrelevant.

It is you who are creating irrelevant conditions. I was talking about the form that traditional marriage takes. We know how marriage works: a man and a woman promise to love each other for their whole lives. Although these days not everyone keeps those vows, that is the form that it takes.

Now, it could be argued that, since not everyone keeps these vows, and indeed it is no longer a requirement under English law to make the promise that it be for life, though most people do, that the purpose of marriage has now changed sufficiently that SSM is no longer validly excluded. However, that is a question that is sufficiently ambiguous that it is for the legislature and not the courts to make that judgement.

Ah yess. nothing like shifting the goalposts.

No, I didn't shift the goalposts. The form of all legal marriage excludes closely related partners. If the purpose of marriage is reproduction, that makes sense. If the purpose is expressing love, there is no reason for such exclusion.

Where did I claim that the people had to be mature?

Those not mentally competent of entering into a traditional marriage can nevertheless love each other. I just used the word 'immature' rather than 'mentally incompetent', since using the latter would suggest they were mentally incompetent of loving each other, which is not what was meant.

Of course but I was simply using your own definition as two people getting married is the issue under discussion. The fact that you incorrectly believe that one must answer the question of polygamous marriage before SSM can be decided is irrelevant.

You must answer it to be consistent. You could reasonably argue, in passing the law, that the complexities of creating a marriage law that involves multiple partners are such that the government will change marriage in two stages, first allowing SSM (which can be done immediately), but also guaranteeing to work to make the changes necessary to recognise plural marriage. But to change the law to allow SSM without indicating whether a future change to legalise plural marriage is intended is disingenuous and unjust.

Care to provide support for this claim?

I can't see a single thing in that list that predates the 20th century. State recognition of marriage goes back much further than that.

I have given you examples of several laws that relate to government recognition of marriage that have little to nothing to do with children. You have yet to provide even a single example of a law that shows marriage is only about children.

And the examples you cited are irrelevant, since they are post hoc.

I didn't say that marriage is only about children. I said the only reason marriage exists is because of the need to provide an optimal context for raising children. Were it not for that need, marriage would never have come about in the first place, certainly not in anything like the form we now have it.

Roonwit

 

[Roonwit]

God's Words are secular reasons? Are you serious?

God can talk about secular stuff as well as religious stuff. I don't think there's anything especially religious about trying to stop the spread of mildew, but God talks about that.

Sorry but Ephesians 5 is not a religious reason for marriage, but an analogy of how a marriage should work once entered into. It is not why marriages should occur to begin with.

The passages I have normally heard preached on at weddings are Eph 5 and 1 Cor 13. I've never heard Gen 1 preached on.

Roonwit

 

[Roonwit]

government recognition of marriage had more to do with property rights and securing alliances.

Just another thought on this. Even if this is the reason why governments recognised marriage, these reasons are all about reproduction. In establishing property rights, it was all about whether a child was born within the marriage. Illegitimate children were excluded from automatic inheritance rights. And why is marriage a useful way to secure alliances? Principally because you ensure that both parties have a common interest in the union, because the offspring that results will come from both families equally.

So, even if you are right, state interest in marriage was clearly about biological reproduction.

Roonwit

 

[Queller]

And a number of states have put forward such substantive state interests, but the courts have decided that they aren't substantive enough. This is the courts over-reaching themselves.

How is it over-reaching for a court to decide that a state's reasoning is not sufficient? That's what courts do.

Quis custodiet ipsos custodes?

If I were an American, I would be very worried about handing over such power to the courts to invent new laws all over the place.

It's a good thing we don't do that then, isn't it?

The courts exist to apply and interpret the laws within the spirit with which they were made. To create substantially new law, the courts have to send the question back to the legislature. Otherwise you create this monster that cannot be tamed. That is the stuff civil wars are made of. The legislature (or, if you have it, the public plebiscite) is the place to make such decisions because there is democratic accountability.

I have yet to see a court rule on SSM laws in such a way that substantively creates a new law.

We had a number of cases of this type in the UK in recent years, on the issue of euthanasia. The complainants argued that, since able-bodied people are able to commit suicide, it is discrimatory against disabled people not to be assisted in dying. The courts, quite properly, said each time that this would be to create new legal positions that were not envisaged by those instituting the law, and therefore are a case for parliament to decide, not the courts. That's what they should also be doing with SSM.

In the US, if any government entity creates a new law, that law can (and in today's world will) be held up to Constitutional review. If it doesn't pass, then it was bad law to begin with.

Yeah, but who judges the burden of proof? Even in this thread, we disagree with each other about how well we have each established our positions. What I am saying is that the default position is the status quo. If the proponents can convince enough people that change is needed, change will come. But if they can't, things should stay the same. You seem to be arguing in this case that change is the default position.

I am not arguing any such thing. I am simply saying that once the proponents of a change have made their case, the burden then switches to those who have things stay the same make their case. You seem to be arguing that no argument can ever overcome the status quo.

I'm waiting to see whether you can provide any evidence that the government ever had a reason for recognising marriage, beyond the fact that it is an institution more ancient and more well established and more fundamental to society than is the government itself.

Since you are making the positive claim (that government recognized marriage because it wished to promote that as the optimal arrangement to raise children) then it is you who has the burden of proof to substantiate that claim. So far you have offered absolutely nothing other than your opinion.

It is you who are creating irrelevant conditions. I was talking about the form that traditional marriage takes. We know how marriage works: a man and a woman promise to love each other for their whole lives. Although these days not everyone keeps those vows, that is the form that it takes.

Notice that nowhere in that definition you just gave is there anything about promising to have and raise biological children together. That's why I keep stating that having children is not a requirement for marriage and since that is the case, using the possibility or impossibility of having children to argue against SSM is nonsensical.

Now, it could be argued that, since not everyone keeps these vows, and indeed it is no longer a requirement under English law to make the promise that it be for life, though most people do, that the purpose of marriage has now changed sufficiently that SSM is no longer validly excluded. However, that is a question that is sufficiently ambiguous that it is for the legislature and not the courts to make that judgement.

No, I didn't shift the goalposts. The form of all legal marriage excludes closely related partners. If the purpose of marriage is reproduction, that makes sense. If the purpose is expressing love, there is no reason for such exclusion.

I already provided a reason for preventing closely related people from entering into marriage, the vastly increased potential for undue influence.

Those not mentally competent of entering into a traditional marriage can nevertheless love each other. I just used the word 'immature' rather than 'mentally incompetent', since using the latter would suggest they were mentally incompetent of loving each other, which is not what was meant.

"Mentally incompetent" and "immature" are in no way euphemisms.

You must answer it to be consistent. You could reasonably argue, in passing the law, that the complexities of creating a marriage law that involves multiple partners are such that the government will change marriage in two stages, first allowing SSM (which can be done immediately), but also guaranteeing to work to make the changes necessary to recognise plural marriage. But to change the law to allow SSM without indicating whether a future change to legalise plural marriage is intended is disingenuous and unjust.

You are completely incorrect on this issue. SSM and polygamous marriage are two unrelated issues, at least as far as arguing for one and remaining silent on the other. You do not in any way have to legalize SSM as a prelude to legalizing polygamous marriage. That much is historical fact. There was a time more than a century ago when polygamous marriage was legal in the US. The first time same-sex marriage was legal in the US was in 2004.

I can't see a single thing in that list that predates the 20th century. State recognition of marriage goes back much further than that.

Then how were Civil War widows able to collect their husbands veteran's pension and/or death benefits if the government didn't recognize the marriage?

What about the fact that in the early 1800s, when a women got married, all her property became the property of her husband, and the government recognized that fact?

And the examples you cited are irrelevant, since they are post hoc.

At least I have provided examples, you haven't even done that.

I didn't say that marriage is only about children.

WHAT?? You have continually claimed that the reason the state recognizes marriage is because marriage supposedly promotes the best arrangement for raising children. You even repeat that claim in the very next sentence.

I said the only reason marriage exists is because of the need to provide an optimal context for raising children.

There you go, once again claiming that the only reason for government recognition of marriage is because of children. This statement blatantly contradicts your claim that you didn't say that marriage is only about children.

Were it not for that need, marriage would never have come about in the first place, certainly not in anything like the form we now have it.

You keep asserting this but have yet to provide support for the claim.

Have you ever heard of the Hapsburg family? How could their dynastice marriages have grown their empire if the governments did not recognize those marriages?

Governments have a long history of recognizing marriages of state to seal alliances, secure truces, and the like.

 

[Queller]

God can talk about secular stuff as well as religious stuff. I don't think there's anything especially religious about trying to stop the spread of mildew, but God talks about that.

Wow, you're really reaching. You're actually comparing God's Word on marriage to God's Word on preventing the spread of disease.

The passages I have normally heard preached on at weddings are Eph 5 and 1 Cor 13. I've never heard Gen 1 preached on.

That doesn't mean that Ehpesians 5 or 1 Cor 13 are about reasons to get married. They are about how marriage should be conducted once entered into. That's like claiming how to drive a car is the same as the reasons for driving the car.

BTW, 1 Cor 13 is not about Christ's relationship with the Church, which was your earlier claim.

 

[Queller]

Just another thought on this. Even if this is the reason why governments recognised marriage, these reasons are all about reproduction. In establishing property rights, it was all about whether a child was born within the marriage. Illegitimate children were excluded from automatic inheritance rights. And why is marriage a useful way to secure alliances? Principally because you ensure that both parties have a common interest in the union, because the offspring that results will come from both families equally.

So, even if you are right, state interest in marriage was clearly about biological reproduction.

Sorry but no. The property rights at the time were secured by the marriage, not by any resulting children. Same as with the alliances.

Also, have you ever heard of morganatic marriages? Thsoe were marriages in which two people were married (and the marriage was recognized by the government) but the wife and any children had no property or inheritance rights whatsoever. The earliest record of a morganatic marriage that I could find was in 1567.

 

[Roonwit]

How is it over-reaching for a court to decide that a state's reasoning is not sufficient? That's what courts do.

It's a good thing we don't do that then, isn't it?

I have yet to see a court rule on SSM laws in such a way that substantively creates a new law.

Since you have already acknowledged that prior to the mid-20th century marriage was always understood in the English-speaking world to be a union of a man and a woman, it is unreasonable to interpret laws or constitutional positions from that time as implying that it should be extended to SSM. That is a substantial change in the law. It should be sent back to the legislature.

That is quite different, by the way, to the interracial marriage issue, which you or someone on this thread said set the precedent for court judgements in favour of SSM. The Fourteenth Amendment was specifically implemented post-slavery in order to ensure that black people were given the same rights as white people. The courts looked at the legislation prohibiting interracial marriage, and judged that the motivations underlying that legislation were specifically opposite to the intent of the constitutional provision. That cannot be the case with heterosexual marriage laws, which have their origin long before anyone considered the possibility that SSM might be suggested in the future.

Also, there seems to be a circular reasoning in the circumstances around DOMA being struck down. First, some states legalise SSM. Then federal government legislation that was introduced prior to such legalisation must be struck down because recognition of marriage is a states matter rather than a federal matter. But the consequence of this is that the federal government now recognises gay marriages regardless of whether the state where the person is living wants to recognise gay marriages. And other states that don't want to recognise gay marriages are also forced by law to recognise gay marriages conducted in other states. That thereby makes marriage recognition effectively a federal matter after all, in which case DOMA should never have been struck down.

I am not arguing any such thing. I am simply saying that once the proponents of a change have made their case, the burden then switches to those who have things stay the same make their case. You seem to be arguing that no argument can ever overcome the status quo.

No, it can overcome the status quo if enough people believe it has done so and vote accordingly. But if they don't the default position is that the law remains unchanged. But it shouldn't be the case that the change in the law becomes the default unless the status quo can prove its case.

Since you are making the positive claim (that government recognized marriage because it wished to promote that as the optimal arrangement to raise children) then it is you who has the burden of proof to substantiate that claim. So far you have offered absolutely nothing other than your opinion.

Actually, my claim is that the government recognised soemthing that was already so widespread in society that it couldn't not recognise it. Therefore there reasons for recognising it are implicit, not explicit. So I'm not expecting to find statute evidence of a reason for recognition. If implicit, then the reason for recognition is the same as the reason marriage came about in the first place.

It is you who think there is some other reason for recognition, so it is you who need to provide evidence.

Notice that nowhere in that definition you just gave is there anything about promising to have and raise biological children together. That's why I keep stating that having children is not a requirement for marriage and since that is the case, using the possibility or impossibility of having children to argue against SSM is nonsensical.

The understanding that marriage is for procreation is implicit in the form of marriage. Were that not the implicit understanding, it would have a different form.

I already provided a reason for preventing closely related people from entering into marriage, the vastly increased potential for undue influence.

That doesn't strike me as a sufficiently good reason to prevent two siblings who live together from being protected from inheritance tax laws and suchlike if one dies.

You are completely incorrect on this issue. SSM and polygamous marriage are two unrelated issues, at least as far as arguing for one and remaining silent on the other. You do not in any way have to legalize SSM as a prelude to legalizing polygamous marriage. That much is historical fact. There was a time more than a century ago when polygamous marriage was legal in the US. The first time same-sex marriage was legal in the US was in 2004.

I am not saying that polygamous marriages are only justifiable in the context of SSM being justified; I am saying that the basis on which SSM is being justified also leads to a justification of plural marriage.

Then how were Civil War widows able to collect their husbands veteran's pension and/or death benefits if the government didn't recognize the marriage?

What about the fact that in the early 1800s, when a women got married, all her property became the property of her husband, and the government recognized that fact?

Ok, there are some things on the list that pre-date the 20th century. But the state has recognised marriages for centuries, millenia.

WHAT?? You have continually claimed that the reason the state recognizes marriage is because marriage supposedly promotes the best arrangement for raising children. You even repeat that claim in the very next sentence.

There you go, once again claiming that the only reason for government recognition of marriage is because of children. This statement blatantly contradicts your claim that you didn't say that marriage is only about children.

No, I have not said that having children is the only reason people get married. I have said that the need to provide a context for the rearing of the children is the only reason that the institution of marriage exists at all in anything like its present form. Those are two very different claims.

Have you ever heard of the Hapsburg family? How could their dynastice marriages have grown their empire if the governments did not recognize those marriages?

Governments have a long history of recognizing marriages of state to seal alliances, secure truces, and the like.

And those marriages are very much about the generation of children. You can't have a dynasty without children.

Wow, you're really reaching. You're actually comparing God's Word on marriage to God's Word on preventing the spread of disease.

No, I'm observing that God talks about secular stuff as well as religious stuff. There is no need to believe in God to believe that marriage is about having children. However, it would require belief in God to believe that God created us so that we reproduce male and female in order to create a pattern that models the relationship of Christ and the Church.

1 Cor 13 is not about Christ's relationship with the Church, which was your earlier claim.

I did not claim the 1 Cor 13 was about Christ's relationship with the church. I said that I had often heard it preached at wedding ceremonies, and it has nothing to do with raising children. By contrast, the passage that is about raising children, I have never heard preached on in this context.

Roonwit

 

[Queller]

Since you have already acknowledged that prior to the mid-20th century marriage was always understood in the English-speaking world to be a union of a man and a woman, it is unreasonable to interpret laws or constitutional positions from that time as implying that it should be extended to SSM. That is a substantial change in the law. It should be sent back to the legislature.

Look, you obviously don't have anything like our Due Process and Equal Protection Clauses in the UK. The 14th Amendment's Due Process and Equal Protection Clauses state that "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." When a same-sex couple asks for the same protections that result from marriage that an opposite sex couple receives, they are being denied the equal protection of marriage laws without due process.

BTW, this isn't just my reasoning; it is the reasoning set out in virtually every court decision that overturned bans on same-sex marriage.

That is quite different, by the way, to the interracial marriage issue, which you or someone on this thread said set the precedent for court judgements in favour of SSM. The Fourteenth Amendment was specifically implemented post-slavery in order to ensure that black people were given the same rights as white people. The courts looked at the legislation prohibiting interracial marriage, and judged that the motivations underlying that legislation were specifically opposite to the intent of the constitutional provision.

The problem with your interpretation of the 14th Amendment is that nowhere in the Amendment is there any reference to race. The 14th Amendment simply refers to "all citizens". Homosexuals are citizens too and they get all the same protections as every other citizen, including marriage protections.

That cannot be the case with heterosexual marriage laws, which have their origin long before anyone considered the possibility that SSM might be suggested in the future.

The vast majority of our federal appeals courts have agreed that the rationale for overturning bans on same-sex marriage is virtually identical to the rationale for overturning bans on interracial marriage. The Supreme Court declined to hear state appeals on the issue, thus setting precedent.

Also, there seems to be a circular reasoning in the circumstances around DOMA being struck down. First, some states legalise SSM. Then federal government legislation that was introduced prior to such legalisation must be struck down because recognition of marriage is a states matter rather than a federal matter. But the consequence of this is that the federal government now recognises gay marriages regardless of whether the state where the person is living wants to recognise gay marriages. And other states that don't want to recognise gay marriages are also forced by law to recognise gay marriages conducted in other states. That thereby makes marriage recognition effectively a federal matter after all, in which case DOMA should never have been struck down.

That's quite a convoluted journey you took to arrive at the wrong conclusion. Governmental recognition of marriage has always been both a state and federal issue. Not to mention that reciprocity has always been a foundation of state law interactions.

No, it can overcome the status quo if enough people believe it has done so and vote accordingly. But if they don't the default position is that the law remains unchanged. But it shouldn't be the case that the change in the law becomes the default unless the status quo can prove its case.

Once again, you are not understanding my point. You state that if the proponents of the change have not made their case then the status quo does not need to make its case. However, I made it clear that, for the purposes of illustrating my point, the proponents of change had made their case.

Actually, my claim is that the government recognised soemthing that was already so widespread in society that it couldn't not recognise it. Therefore there reasons for recognising it are implicit, not explicit. So I'm not expecting to find statute evidence of a reason for recognition. If implicit, then the reason for recognition is the same as the reason marriage came about in the first place.

Then you need to show that the reason that marriage came about in the first place was to "provide the optimal venue for raising children". This will be quite a challenge because marriage was originally a religious concept and, as you have tried to point out elsewhere, religious marriage doesn't really have anything to do with children.

It is you who think there is some other reason for recognition, so it is you who need to provide evidence.

I have already given dozens of examples.

The understanding that marriage is for procreation is implicit in the form of marriage.

No, it isn't. The only thing implicit in the form of marriage is that two people have decided to commit their lives together.

Were that not the implicit understanding, it would have a different form.

Really? What would that different form be?

That doesn't strike me as a sufficiently good reason to prevent two siblings who live together from being protected from inheritance tax laws and suchlike if one dies.

Great. That's your opinion. That's also not anything resembling an actual marriage.

I am not saying that polygamous marriages are only justifiable in the context of SSM being justified; I am saying that the basis on which SSM is being justified also leads to a justification of plural marriage.

Sorry, no. As has already been pointed out, 2 will never equal more than 2. There are inherent differences between a couple and anything more than a couple that would need to be worked out before polygamous marriage can be legalized. Not to mention that as I pointed out, polygamous marriage was legal in the US long before SSM was ever considered.

Ok, there are some things on the list that pre-date the 20th century. But the state has recognised marriages for centuries, millenia.

The state recognized polygamous marriage for centuries, millenia. Emperor Nero was involved in a same-sex marriage nearly 2,000 years ago. In the third century AD, a part of the Theodosian code was written that banned same-sex marriage and ordered the death of all those who were so married.

No, I have not said that having children is the only reason people get married.

I didn't say that was what you claimed, did I?

I have said that the need to provide a context for the rearing of the children is the only reason that the institution of marriage exists at all in anything like its present form. Those are two very different claims.

No, what you said was that the need to provide an optimal context for the rearing of the children is the only reason that the government recognizes the institution of marriage.

And those marriages are very much about the generation of children. You can't have a dynasty without children.

Have you ever heard of morganatic marriage?

No, I'm observing that God talks about secular stuff as well as religious stuff. There is no need to believe in God to believe that marriage is about having children. However, it would require belief in God to believe that God created us so that we reproduce male and female in order to create a pattern that models the relationship of Christ and the Church.

God didn't create us so that we reproduce male and female in order to create a pattern that models the relationship of Christ and the Church. Where did you get the idea that the Christ and the Church model of marriage is about reproduction? There's certainly nothing in Eph 5 suggesting that was the intent.

I did not claim the 1 Cor 13 was about Christ's relationship with the church. I said that I had often heard it preached at wedding ceremonies, and it has nothing to do with raising children. By contrast, the passage that is about raising children, I have never heard preached on in this context.

Then, as I noted above, you have a long row to hoe to convince anyone that government recognition of marriage has anything to do with children.

 

[David Brider]

I am not saying that polygamous marriages are only justifiable in the context of SSM being justified; I am saying that the basis on which SSM is being justified also leads to a justification of plural marriage.

You may be right. And maybe, a few years from now, there will be a push to legalise polyamorous marriages. I can see that happening, although I can't see it having quite the same traction as the push for SSM, because whilst an increasing number of people recognise homosexuality and bisexuality as not really fundamentally any different from heterosexuality, and therefore legalising SSM as the right thing to do, I think it'd be fair to say that a vast majority remain wedded (no pun intended...well, maybe...) to the notion of one partner for life (unless the relationship breaks down, of course) and see people having multiple partners as being somehow a bit wrong.

But who knows - that might change.

No, I have not said that having children is the only reason people get married. I have said that the need to provide a context for the rearing of the children is the only reason that the institution of marriage exists at all in anything like its present form. Those are two very different claims.

But whilst that may well have been the case historically, it's never been the case legally. There has never been a legal requirement for people getting married to have children, and although there has been societal pressure on people having children to get married, it's nowhere near as strong as it was (the taboo on unmarried/single parents has decreased considerably in my lifetime) that also isn't legally enforced. So using it as a reason to be opposed to same sex marriage doesn't add up.

 

[Roonwit]

Look, you obviously don't have anything like our Due Process and Equal Protection Clauses in the UK. The 14th Amendment's Due Process and Equal Protection Clauses state that "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." When a same-sex couple asks for the same protections that result from marriage that an opposite sex couple receives, they are being denied the equal protection of marriage laws without due process.

BTW, this isn't just my reasoning; it is the reasoning set out in virtually every court decision that overturned bans on same-sex marriage.

The problem with your interpretation of the 14th Amendment is that nowhere in the Amendment is there any reference to race. The 14th Amendment simply refers to "all citizens". Homosexuals are citizens too and they get all the same protections as every other citizen, including marriage protections.

However, the 14th Amendment was introduced just after the Civil War, in the context of protecting freed slaves, who were all black. It is therefore reasonable for the courts to interpret them as applying to issues of race. By your own admission, at the time it was drafted, there was no thought that homosexuals would one day be claiming marriage rights. In fact, homosexuality was illegal at that time. It is therefore inappropriate to extrapolate those articles to the legitimation of SSM.

Let's take another example to illustrate the point. The Amendment refers to 'persons'. It doesn't specify that 'persons' be restricted to humans. Should cats also be included? Clearly that would be stupid, as it is contrary to the understanding and intention of the people framing it. If cats are to be recognised as persons and given citizenship, it would be a matter for the legislature to make that change, not the courts.

I also note that there were court judgements to the contrary as well (ie. against the introduction of SSM), which judged that there was no violation of equal protection because all people were equally entitled to marry. I also note that the judgements in their favour carried a small majority, often only a majority of 1. It is therefore, at the very least, not obviously the case that the 14th Amendment should be legally used in this way. In those circumstances, a responsible court would turn the matter over to the legislature to determine, rather than making substantial changes to the law without any democratic accountability.

That's quite a convoluted journey you took to arrive at the wrong conclusion. Governmental recognition of marriage has always been both a state and federal issue. Not to mention that reciprocity has always been a foundation of state law interactions.

Probably I haven't taken in every relevant part of the legal process, only having got into the US side of the debate in the last few days. I just got the impression as I was reading through the various cases that there seemed to be a circularity of reasoning going on, and that SSM was being introduced by the courts contrary to the intentions of all the law on the subject without legislatures having any reasonable recourse.

(The UK process has been much simpler, because the move to legalise SSM started in parliament not in the courts, and the ECHR had already ruled against there being a right to SSM. My reasoning on how SSM should be approached in the US has been shaped by the euthanasia cases that have gone through the UK courts, which I think have essentially the same shape: ie. an issue of potential injustice is raised, with conflict between new laws and older laws; courts were asked to overrule the old laws on the basis of new laws; they judged that making this change would be against the spirit in which all the laws were passed at the time of passing, and therefore the resolution is a matter for Parliament not the courts.)

Once again, you are not understanding my point. You state that if the proponents of the change have not made their case then the status quo does not need to make its case. However, I made it clear that, for the purposes of illustrating my point, the proponents of change had made their case.

In my earlier list of statements, I should have worded statement (4) differently, because the discussion of 'burden of proof' has got complicated, and obscured my original intention in making the statement. In the light of our subsequent discussion, I would now phrase statement (4) as "When a change of law is being discussed, the default position is that the law remain unchanged unless a majority in the legislature (or plebiscite if appropriate) consent to that change."

Then you need to show that the reason that marriage came about in the first place was to "provide the optimal venue for raising children". This will be quite a challenge because marriage was originally a religious concept and, as you have tried to point out elsewhere, religious marriage doesn't really have anything to do with children.

I gave reasons to suppose this was the case in post #108. Assuming an evolutionary origin, marriage probably predates what we would recognise as 'religion'. If marriage is religious in origin, presumably a secular society should abolish it altogether.

I have already given dozens of examples.

Not relevant ones.

No, it isn't. The only thing implicit in the form of marriage is that two people have decided to commit their lives together.

Really? What would that different form be?

Most likely, marriage would never have become an institution in the first place. If it had, there would never have been restrictions on who could enter it. Nor would there ever have been concerns about the legitimacy of children.

Great. That's your opinion. That's also not anything resembling an actual marriage.

Neither is SSM.

Sorry, no. As has already been pointed out, 2 will never equal more than 2. There are inherent differences between a couple and anything more than a couple that would need to be worked out before polygamous marriage can be legalized. Not to mention that as I pointed out, polygamous marriage was legal in the US long before SSM was ever considered.

There are practical differences in the implementation of plural marriage, but no differences in kind. I answered the second point already.

The state recognized polygamous marriage for centuries, millenia. Emperor Nero was involved in a same-sex marriage nearly 2,000 years ago. In the third century AD, a part of the Theodosian code was written that banned same-sex marriage and ordered the death of all those who were so married.

Yes, so you agree that the state has recognised marriage long before any of the benefits you cited came into being, thereby making them irrelevant for your argument.

Yes, marriage has sometimes taken different forms in some places. The English common law tradition, however, which also applies in the USA, was always of one man for one woman for life.

No, what you said was that the need to provide an optimal context for the rearing of the children is the only reason that the government recognizes the institution of marriage.

No, I think it was someone else who said this is why the government recognises marriage. I said it's the only reason marriage exists at all. I suggest that the reason governments recognised marriage is because, before governments even came to be, marriage was already well-established as the fundamental building block of society, and therefore in running a society they had to recognise it; it would have been absurd not to. I don't imagine they ever really considered not recognising it.

Have you ever heard of morganatic marriage?

Yes. I'm not sure why it is relevant here, though.

God didn't create us so that we reproduce male and female in order to create a pattern that models the relationship of Christ and the Church. Where did you get the idea that the Christ and the Church model of marriage is about reproduction? There's certainly nothing in Eph 5 suggesting that was the intent.

Since this thread is about secular reasons, this bit of debate isn't really relevant, so I'm going to leave it after this response. I didn't say Eph 5 was about reproduction. I was saying that it ultimately underpins a Christian understanding of marriage. I would see it as more fundamental than Genesis 1. I would see it as ultimately providing an explanation for why God created the way he did.

Consequently, I was arguing, contrary to what you were saying, that a religious definition of marriage (at least from a Christian point of view) is less likely to be about children than a secular definition. If this thread were about Christian reasons to oppose SSM, I would have had a whole host of things to say before I even got to talking about children. I am talking about children because I was limiting myself to secular concerns.

Roonwit

 

[Saul Hudson]

One thing I notice about ethical conversations with Christians is they can give me a non religious explanation for Christian ethics - except when it comes to Gay Marriage, in which case their opposition seems to rest entirely on a handful of bible verses.

Can anyone provide a reason for opposing gay marriage - without invoking scripture or theology?

It can't be done. It's based on a moral objection, which is based on a religious belief that God says not to do it.

I am a Christian and I do believe God's law is to not have gay sex. But, we do not live in a theocracy. We have no right to exclude them from a marriage relationship.

 

[Roonwit]

It can't be done.

I invite you to read through this thread as evidence to the contrary.

Roonwit

 

[David Brider]

Neither is SSM.

Do you actually know any same-sex couples? 'Cos I do, and trust me, I'd be hard pressed to think of any significant differences between their marriages/partnerships and those of my own or any other opposite-sex couple.

Maybe opposite-sex marriage and same-sex marriage are more similar than you'd like to think.

 

[David Brider]

I invite you to read through this thread as evidence to the contrary.

Saul would be wasting his time. The main argument presented as a secular argument against same-sex marriage has been the reproduction one, with a high degree of back-pedalling and goalpost-shifting when flaws in the argument are pointed out.

There may well be a convincing secular argument against same-sex marriage. But if there is, it hasn't been presented so far.

 

[Queller]

However, the 14th Amendment was introduced just after the Civil War, in the context of protecting freed slaves, who were all black. It is therefore reasonable for the courts to interpret them as applying to issues of race. By your own admission, at the time it was drafted, there was no thought that homosexuals would one day be claiming marriage rights. In fact, homosexuality was illegal at that time. It is therefore inappropriate to extrapolate those articles to the legitimation of SSM.

Sorry but no, it is not inappropriate in the slightest. The Amendment refers to citizens. Had the people who wrote that Amendment intended it to refer only to issues of race, they would have written it that way. However, they knew that the long-term purpose of the Amendment was to protect the rights of all citizens.

Do you honestly think that there needs to be legislation specifically stating that "homosexuals, being citizens of the US, are entitled to the protections offered by the 14th Amendment"? The writers of the Amendment were Christians, maybe we need specific legislation stating the "Muslim, Atheist, and Hindu citizens, being citizens of the US, are also entitled to the protections offered by the 14th Amendment". Does that really make any sense to you?

Let's take another example to illustrate the point. The Amendment refers to 'persons'. It doesn't specify that 'persons' be restricted to humans. Should cats also be included? Clearly that would be stupid, as it is contrary to the understanding and intention of the people framing it. If cats are to be recognised as persons and given citizenship, it would be a matter for the legislature to make that change, not the courts.

I'm sorry but this is just ridiculous. Cats are in no way "persons" as the term is understood and used in the 14th Amendment. Homosexuals however, are without a doubt, citizens.

I also note that there were court judgements to the contrary as well (ie. against the introduction of SSM), which judged that there was no violation of equal protection because all people were equally entitled to marry. I also note that the judgements in their favour carried a small majority, often only a majority of 1. It is therefore, at the very least, not obviously the case that the 14th Amendment should be legally used in this way. In those circumstances, a responsible court would turn the matter over to the legislature to determine, rather than making substantial changes to the law without any democratic accountability.

Sorry, that's not the way the law or courts work. A simple majority is all that is required to rule on a law. That there are dissenters from the decision, while not irrelevant, does not create ambiguity in the law. If a unanimous decision were required to decide a case, far fewer cases would ever be decided.

Probably I haven't taken in every relevant part of the legal process, only having got into the US side of the debate in the last few days. I just got the impression as I was reading through the various cases that there seemed to be a circularity of reasoning going on, and that SSM was being introduced by the courts contrary to the intentions of all the law on the subject without legislatures having any reasonable recourse.

Nothing is ever introduced by the courts. Legislatures make laws. If citizens feel those laws are wrong, and suffer harm because of them, they can seek redress through the courts. The court then rules either in favor of the law or overturns it is there is reason to do so. Legislatures can always try to pass a new law doing the same thing as the old one, but it will face the same challenges as the old one.

(The UK process has been much simpler, because the move to legalise SSM started in parliament not in the courts, and the ECHR had already ruled against there being a right to SSM. My reasoning on how SSM should be approached in the US has been shaped by the euthanasia cases that have gone through the UK courts, which I think have essentially the same shape: ie. an issue of potential injustice is raised, with conflict between new laws and older laws; courts were asked to overrule the old laws on the basis of new laws; they judged that making this change would be against the spirit in which all the laws were passed at the time of passing, and therefore the resolution is a matter for Parliament not the courts.)

Wow, I can't even begin to imagine the problems this causes. Just as an example, laws banning interracial marriage were overturned across the US with the decision in the case of Loving v. Virginia. I wonder what Richard and Mildred Loving would have thought upon being told by the courts that "the anti-miscegenation laws that were passed were keeping with the spirit in which all laws were passed at the time, therefore your marriage is illegal and you are going to jail. You will stay there until Congress passes a law stating interracial marriage is legal."

In my earlier list of statements, I should have worded statement (4) differently, because the discussion of 'burden of proof' has got complicated, and obscured my original intention in making the statement. In the light of our subsequent discussion, I would now phrase statement (4) as "When a change of law is being discussed, the default position is that the law remain unchanged unless a majority in the legislature (or plebiscite if appropriate) consent to that change."

In the US, the majority of the plebiscite agrees that homosexuals should be allowed to marry.

I gave reasons to suppose this was the case in post #108.

You can "suppose" all you want. That is still nothing but your opinion.

Assuming an evolutionary origin, marriage probably predates what we would recognise as 'religion'. If marriage is religious in origin, presumably a secular society should abolish it altogether.

Why would a secular society abolish marriage just because it started out as a religious concept?

Not relevant ones.

How is giving examples of reasons the government recognizes marriage not relevant?

Most likely, marriage would never have become an institution in the first place. If it had, there would never have been restrictions on who could enter it. Nor would there ever have been concerns about the legitimacy of children.

That doesn't answer my question. You said marriage would have taken a different form if it wasn't about children. Now you're claiming that marriage would never have come about at all. You can't have it both ways.

Neither is SSM.

Marriage, as it is currently understood is about two people pledging their lives together. That is exactly what same-sex marriage is all about.

There are practical differences in the implementation of plural marriage, but no differences in kind.

There is no difference in kind in SSM either.

I answered the second point already.

Where?

Yes, so you agree that the state has recognised marriage long before any of the benefits you cited came into being, thereby making them irrelevant for your argument.

Where do you come up with these ideas? I'm really getting tired of you putting words in my mouth that I didn't say. Marriage has been about property and inheritance for thousands of years. In the Bible, fathers were paid so that someone could marry their daughter.

Yes, marriage has sometimes taken different forms in some places. The English common law tradition, however, which also applies in the USA, was always of one man for one woman for life.

That doesn't mean we can't depart from English common law.

No, I think it was someone else who said this is why the government recognises marriage. I said it's the only reason marriage exists at all. I suggest that the reason governments recognised marriage is because, before governments even came to be, marriage was already well-established as the fundamental building block of society, and therefore in running a society they had to recognise it; it would have been absurd not to. I don't imagine they ever really considered not recognising it.

OK, maybe it wasn't you. To the rest of your post however, it may be a reason that governments recognize marriage but it far from the only one and that has been true for thousands of years.

Yes. I'm not sure why it is relevant here, though.

It's another form of marriage that has been recognized by governments for centuries that produces the opposite affect of what people are claiming about marriage and children.

Since this thread is about secular reasons, this bit of debate isn't really relevant, so I'm going to leave it after this response. I didn't say Eph 5 was about reproduction. I was saying that it ultimately underpins a Christian understanding of marriage. I would see it as more fundamental than Genesis 1. I would see it as ultimately providing an explanation for why God created the way he did.

Consequently, I was arguing, contrary to what you were saying, that a religious definition of marriage (at least from a Christian point of view) is less likely to be about children than a secular definition. If this thread were about Christian reasons to oppose SSM, I would have had a whole host of things to say before I even got to talking about children. I am talking about children because I was limiting myself to secular concerns.

OK. I was getting confused because you started talking about Eph and then added in 1 Cor. I thought it was all supposed to be tied together about marriage being a model of Christ and the Church.

 

[Roonwit]

Well, I think we've probably both been guilty of misunderstanding what the other was saying, but we try our best to understand correctly, I hope.

I didn't say that homosexuals shouldn't be considered as citizens; I said that marriage shouldn't be considered to be open to same sex couples. Baker v Nelson in 1971 heard exactly the same arguments as were later used to overturn the restriction of marriage to heterosexual couples, but decided that there was no violation of the 14th Amendment. Homosexuals are equally able to marry as heterosexuals; but what was being requested was not a marriage. They explicitly stated that marriage was about procreation, rejected the argument that childless married couples presented a counter-case to this that thereby legitimated SSM, and explicitly disavowed the relevance of Loving v Virginia.

The relevant laws were exactly the same in 1971 as in the 2000s, so if there was a violation of the 14th Amendment in the 2000s there must have been one in the 1970s, yet the courts failed to see it, according to you. Or, more likely, they correctly understood what 'marriage' meant in the statutes when they were drafted, which you have already acknowledged would have been the meaning an intention when they were drafted.

For the court (rather than the legislature) to redefine 'marriage' to include same sex couples is as much a misreading of the laws, and just as ridiculous, as for them to redefine 'persons' to include cats.

In the US, the majority of the plebiscite agrees that homosexuals should be allowed to marry.

That's fine; that is the appropriate place for laws to be changed. The question I am dealing with in this thread is whether it is legitimate for the traditional definition of marriage to be retained without violating the constitution.

You can "suppose" all you want. That is still nothing but your opinion.

What are we dealing with here if not different people's opinions? I have mine, you have yours, Supreme Court Justices have theirs - though if they bring their opinions into their legal judgements instead of sticking to legal facts then they are overstepping their proper role.

That doesn't answer my question. You said marriage would have taken a different form if it wasn't about children. Now you're claiming that marriage would never have come about at all. You can't have it both ways.

Yes I can. I am suggesting that marriage came about in order to provide an optimal context for child-rearing. The question of what would have happened if marriage had not originated for that reason is a counterfactual, so can be susceptible to multiple answers. I think most likely there would have been nothing like marriage, but if there had been it would have had a different form.

Marriage, as it is currently understood is about two people pledging their lives together. That is exactly what same-sex marriage is all about.

In whose understanding? It has only come to be understood that way because some judges have changed the definition of marriage.

I'm moving past some of your other points, since I think we've argued them out already and I'm not sure that a tis-tisn't-tis-tisn't battle is really getting us anywhere.

The real question is whether a legislature could have reasonable grounds for deciding to restrict marriage to heterosexual couples.

In legalising SSM, the state is effectively endorsing homosexual relationships at being of equivalent status and value to heterosexual ones. If the legislature feels that they are not of the same value, it would be justified in enacting a ban on SSM.

I note that the US tradition is that morality should be up to the individual; the state should maintain a moral neutrality as far as possible. However, the state cannot remain morally neutral on everything, and there are some things that are prohibited because they offend against a sense of morality. Prostitution and public nudity would be a couple of examples. The government's attitude towards smoking would be another good example of something that is not strictly prohibited but the government clearly shows a moral disapproval of it through its actions.

Homosexuality could be regarded as a disordered form of human sexuality (I'm not saying I have proved or am going to try to prove it, but that a person could reasonably hold the opinion that it is.) We recognise other forms of disordered sexuality, such as paedophilia, necrophila and zoophila. These have in common the fact that they cannot lead to reproduction, and therefore homosexuality could reasonably be added to the list. Now, of these other forms, they could be forbidden on the grounds of non-consent (I'm not sure what the position on necrophilia would be if the person had given consent prior to their death for their body to be so used), therefore there is no need to consider banning them on the grounds of being unnatural because there are already other, easier, grounds for banning.

However, a person could reasonably hold the view that homosexual practice should be included in this list, and therefore should be either prohibited or discouraged. This could lead to two consistent positions: the first would be to say it is such a danger to public morality that homosexual acts should be prohibited outright; the other would be to say that the presence of consent means that the act should be permitted, but the state's need to discourage that behaviour warrants its taking action to show that the state does not approve of this behaviour, which would include not giving SSM the same status as heterosexual marriage. This could be done by refusing to recognise partnerships at all, or by creating an alternative form of partnership that fell short of marriage.

If the legislature were to hold the view that homosexuality is a disordered form of human sexuality and as such should not be endorsed by the state, an opinion that could reasonably be held on the grounds that normal sexuality should be directed towards relationships where reproduction is possible at least in principle, then they would be justified in enacting a 'Defence of Marriage' type act or constitutional amendment.

Roonwit