Gay marriage opponents' strategy uncertain in 2015

[Alcon]

It's not even like the law needs to make much of a distinction to avoid the slippery slope issue.  Besides the fact that it's less traditional, how is same-sex marriage any closer to polygamous marriage than heterosexual marriage?  It isn't.  And there's no serious person who thinks that "it's traditional" is an argument worth hanging your hat on.

[Torie]

It's not even like the law needs to make much of a distinction to avoid the slippery slope issue.  Besides the fact that it's less traditional, how is same-sex marriage any closer to polygamous marriage than heterosexual marriage?  It isn't.  And there's no serious person who thinks that "it's traditional" is an argument worth hanging your hat on.

Well you expand the definition in one direction, and then it is like a supernova, and expands everywhere, eventually consuming the planet Earth, and we all die, and it's the end.  It is sort of like Kenan's containment policy against the former Soviet Union. The key thing is containment. I hope that helps.

[Ogre Mage]

We've been here before.  When the Supreme Court struck down interracial marriage bans as unconstitutional in 1967, some public officials insisted they would continue to support such bans.  Even decades later, some still thought such marriages should be illegal.  But the bans were wrong then just as the bans on same-sex marriage are wrong now.  The "slippery slope" argument was used against interracial marriage.  And so was a version of the procreation argument  -- that "mongrel" children born from such unions would be unnatural and freakish.  People didn't want interracial couples to marry because they might procreate.  Today they don't want LGBT to marry because they cannot procreate together.  Stupid.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

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I'm not saying that this 'give full incentive to only the maximal benefit' principle is appropriate to use for every single issue. But there are other issues aside from marriage where it is appropriate. Look outside the issue of marriage for a moment and notice that the government is providing the most help to the 'maximal benefit' group in other areas already - for instance, one could note that medicare is only avaliable to the oldest americans and make the argument that it should be avaliable for all - but the government doesn't do that because it's interest in good health of the population is most effectively served when the least healthy age group of americans - the elderly - are given the most help from government. Its full support wouldn't achieve as much in other age groups. With the issue of marriage, the same basic principle applies - the government applies the most support to the group that most furthers its interest in procreation, which is the opposite sex couple over the same sex couple essentially 100% of the time.

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Well, in order to get to the next level, heightened scrutiny, you have to make the case that sexual orientation is close to a suspect class (strict scrutiny applies if it is a suspect class). Let's look at the criteria to be a suspect class.

1. Does the group have a history of discrimination? - The knee-jerk answer is yes, but...

How much history is there? A liberal group might say it's almost all of time, given that gay marriage wasn't officially allowed from the beginning of human history until Massachusetts began allowing same sex marriages in 2003. But others may shorten the definition to ~1960's to present, saying that it can't really be considered discrimination until the discriminated group actively dislikes it. You could also say that the discrimination didn't really begin until the 1980/90s (not sure which), when states actually began to officially endorse the man-woman definition by officially prohibiting same sex marriages - before, such prohibitions had only been implied and were followed out of mere tradition, not law. So, is 30 years enough history? is 50 years? It really becomes up to the whims of the judge, as no official standard is set.

Also, one could argue that the discrimination isn't widespread enough, because the only state-sanctioned means of it in modern times is in the area of marriage - laws officially sanctioning discrimination based on sexual orientation in other areas were unheard of in the modern history of the country until Indiana's recent short-lived bill. Before then, states simply often failed to say whether it was okay or not - and refusal to express an opinion is not an official endorsement by the state.

So, in all fairness, I'm assigning "Maybe" as the answer to question 1. It's really up to the whims to the judge here.

2. Does the group lack political power? - Obvious No

3. Does the group have an immutable characteristic? - This seems to be a Yes, although I suppose one could argue that since one can hide their sexual orientation that it is mutable. I don't see many justices jumping on to that idea, but out of fairness I'll rule the answer to question 3 to be "Probably".

4. Is the group a distinct minority? - Obvious Yes

So, sexual orientation, depending on the whims of the judge, would meet 1 characteristic in the worst imaginable situation, and 3 in the best imaginable situation (speaking from the liberals perspective, obviously). Some judges may say "close enough" and declare it a quasi-suspect class, enabling heightened scrutiny, others may choose rational basis. We've already seen this difference in classification happen - among the various courts that have judged SSM, some have used a rational basis standard, others apply heightened scrutiny, a few have even done strict scrutiny. Since rational basis is the only standard that sexual orientation definitively and indisputably qualifies for, it is the standard that I feel that should be applied.

Under rational basis, SSM bans easily pass, as all that is needed is a reasonable reason for their existence - in this case, to promote the unions that are most beneficial to the state interest in procreation.

Under heightened scrutiny, where it must serve an important government interest and be substantially related to that interest, I would argue that SSM bans still pass, because the state endorsing opposite sex couples substantially furthers its interest in procreation - refusing to endorse the same sex couple doesn't make it an unsubstantial furthering of that interest. Only when we get to strict scrutiny, where "least restrictive" means is required, do SSM bans finally fall.

 

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Do I think my secular argument is fatally flawed? No, but...

I'm going to be brutally honest here - what keeps me most firm on my opposition to same sex marriage is not the argument I'm presenting here, or a belief that such prohibitions are constitutional, no, it is my sincerely held religious belief that full marriage should only be between a man and a woman. I like to back up my religious beliefs with secular arguments where possible, but even if you got me to a point where I gave up on having any secular arguments on prohibiting SSM, I would still vote against it in a legislative or referendum setting and personally oppose it based on my sincerely held religious belief. That's my personal choice, and not something any of you will ever change.  

[Mechaman]

What?

[SteveRogers]

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Well, in order to get to the next level, heightened scrutiny, you have to make the case that sexual orientation is close to a suspect class (strict scrutiny applies if it is a suspect class). Let's look at the criteria to be a suspect class.

1. Does the group have a history of discrimination? - The knee-jerk answer is yes, but...

How much history is there? A liberal group might say it's almost all of time, given that gay marriage wasn't officially allowed from the beginning of human history until Massachusetts began allowing same sex marriages in 2003. But others may shorten the definition to ~1960's to present, saying that it can't really be considered discrimination until the discriminated group actively dislikes it. You could also say that the discrimination didn't really begin until the 1980/90s (not sure which), when states actually began to officially endorse the man-woman definition by officially prohibiting same sex marriages - before, such prohibitions had only been implied and were followed out of mere tradition, not law. So, is 30 years enough history? is 50 years? It really becomes up to the whims of the judge, as no official standard is set.

Wow.

I'm really trying to understand where you're coming from, but to be able to write the above paragraph in 2015, you must either be horrendously misinformed about history or just fundamentally incapable of empathy towards your fellow man. Regardless of one's position on gay marriage, to argue that gay people have not faced a history of discrimination in this country is patently absurd. The question isn't how long the gay marriage question has been an issue in American politics; the question is whether for much of the country's history a man who came out as openly gay risked being beaten in the street by his neighbors. So tell us, when do you think gay people began to "actively dislike" discrimination against them? The reason that gay people didn't get politically active in mobilizing in large numbers against discrimination prior to the 60s wasn't because they were just loving all the discrimination; it was because it. was. not. safe. to be openly gay prior to that time period.   

Also, one could argue that the discrimination isn't widespread enough, because the only state-sanctioned means of it in modern times is in the area of marriage - laws officially sanctioning discrimination based on sexual orientation in other areas were unheard of in the modern history of the country until Indiana's recent short-lived bill. Before then, states simply often failed to say whether it was okay or not - and refusal to express an opinion is not an official endorsement by the state.

What on Earth are you even talking about? Right up until the Supreme Court struck down sodomy laws in 2003, fourteen different states said that it was literally illegal to be gay.

[Ebsy]

I would have to tend to agree that Wulfric's arguments are pretty weak. Arguing that the state hasn't actively discriminated against gay people in the past is a pretty novel, if ridiculous, argument.

[King]

Lolfric

[Alcon]

I'm not saying that this 'give full incentive to only the maximal benefit' principle is appropriate to use for every single issue. But there are other issues aside from marriage where it is appropriate. Look outside the issue of marriage for a moment and notice that the government is providing the most help to the 'maximal benefit' group in other areas already - for instance, one could note that medicare is only avaliable to the oldest americans and make the argument that it should be avaliable for all - but the government doesn't do that because it's interest in good health of the population is most effectively served when the least healthy age group of americans - the elderly - are given the most help from government. Its full support wouldn't achieve as much in other age groups. With the issue of marriage, the same basic principle applies - the government applies the most support to the group that most furthers its interest in procreation, which is the opposite sex couple over the same sex couple essentially 100% of the time.

Do you seriously -- seriously -- think that Medicaid is limited to seniors because, although the government could easily pass a net-beneficial, Medicaid-like program that applies to another group, it elects not to do so?  I do not think that's the case.  If it is the case, it would be insane.  It's almost certainly because there is some other, unique concern (either political or moral) that makes other programs either not net-beneficial, or not-feasible.  Because no decent human being would deny cost-effective, responsible services to a group of people just because some other group needed it marginally more.

Let's be really clear about what you're arguing.  You're arguing that, if we can do net-good for people, we should abstain from doing so, because doing net-good isn't sufficient in some cases -- only doing the maximal good is sufficient.  You're backing up this argument by giving cases where you claim this is "appropriate," like your Medicaid example.  You're not explaining why it's appropriate -- just that we do it, so it must be.  That's probably the best you can hope for, because there's no way you actually believe that it is appropriate to forgo good just because it isn't maximal good.  At least I hope not, because...
 

Do I think my secular argument is fatally flawed? No, but...

It really is a fatally flawed argument.  I'm being sincere.  You can read my post history; I am very, very rarely this unequivocally dismissive of an argument.  You are literally making an argument that boils down to "good has no value unless it's the best good."  Can you understand why that's, in essence, pretty much an evil argument?

I simply do not think you buy your own argument intellectually.  I think you have the position you want to rationalize (same-sex marriage opposition), and now you're trying to find examples to defend your position -- like the Medicaid example -- even though you don't seem to know why that example justifies your position.  You just threw it out there, without identifying how that example saves your argument.  It smacks of the sort of rationalization people do when they've found a position they want to prove is reasonable, and try to reverse-engineer a justification.

And I think this is why you're doing that:

I'm going to be brutally honest here - what keeps me most firm on my opposition to same sex marriage is not the argument I'm presenting here, or a belief that such prohibitions are constitutional, no, it is my sincerely held religious belief that full marriage should only be between a man and a woman. I like to back up my religious beliefs with secular arguments where possible, but even if you got me to a point where I gave up on having any secular arguments on prohibiting SSM, I would still vote against it in a legislative or referendum setting and personally oppose it based on my sincerely held religious belief. That's my personal choice, and not something any of you will ever change.  

Thank you.  I appreciate that honesty, because it's entirely consistent with the reverse-engineered nonsense argument you've been giving.

I understand that you feel obligated to find a secular rationale.  I understand how tempting it must be to find a reasonable-sounding argument and then grapple to justify it.  But your argument is not reasonable or sound.  It falls apart when you seriously analyze it.

Now, if I may be brutally honest: I really don't think the argument you're giving is anything but an ex post justification.  It sounds like something you thought up because your actual position -- "this is my religious belief, I'm never going to change it, and I don't care about the secular moral implications" -- is at tension with how you present your ideology.  It's not moderate.  It's not "reasonable."  It's not live-and-let-live.  It's you, taking an idea of moral good that you directly admit you will never consider questioning or changing, and imposing it on public policy, no matter the apparent harm it causes (or good it forgoes) from the lens of secular policymaking.  It's a philosophically extreme position.

But if that's what it is, fine.  If that's the case, just say so, dude.  That position isn't uncommon.  I do think it's dangerous, but it's at least logically tenable.  I'm not going to rake it over the coals like the totally nonsense argument you've giving now.  However, if you still think your position is actually a reasonable secular ethical argument, I'm going to continue to tear it apart because -- in case this wasn't already clear --

Your.

Argument.

Doesn't.

Make.

Any.

Sense.

At.

All.

[Mechaman]

Given that modern technology, via sperm/egg surrogacy or whatever you call it, CAN pretty much lead to genetic offspring for gay couples, the idea that we should base arguments off of the ability to procreate is just ludicrous.

Oh sure, they might have to go through an "unnatural" process, but a duck is still a duck even if a leg is missing.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

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I impose it on public policy because not doing so would make me an accomplice to sin, which also isn't tolerated by god. The only way I'd change this is if one could prove to me through scripture that god has given up on imposing man-woman marriage. I know there are christians who personally support gay marriage (not just endorse it to separate church and state, but endorse it because they truly support it), but their argument, as I understand it, is simply "Well, that was a long time ago, and surely god doesn't endorse 'unreasonable political positions'". That's not an argument that's (to my knowledge, correct if wrong) supported by the bible, it's just a rationalization.

At the end of the day, I know that this issue admittedly doesn't have much impact on the overall welfare of the country, so I typically don't vote based on it. That's how I can support politicians such as Ann Kirkpatrick (D, AZ-01) and Mark Kirk (R, IL) in good conscience - because I look beyond their liberal positions on gay marriage and abortion and see that, on the whole, they are good politicians. But I don't see myself ever supporting the gay marriage/abortion aspects of their platform.

[Slander and/or Libel]

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I impose it on public policy because not doing so would make me an accomplice to sin, which also isn't tolerated by god. The only way I'd change this is if one could prove to me through scripture that god has given up on imposing man-woman marriage. I know there are christians who personally support gay marriage (not just endorse it to separate church and state, but endorse it because they truly support it), but their argument, as I understand it, is simply "Well, that was a long time ago, and surely god doesn't endorse 'unreasonable political positions'". That's not an argument that's (to my knowledge, correct if wrong) supported by the bible, it's just a rationalization.

At the end of the day, I know that this issue admittedly doesn't have much impact on the overall welfare of the country, so I typically don't vote based on it. That's how I can support politicians such as Ann Kirkpatrick (D, AZ-01) and Mark Kirk (R, IL) in good conscience - because I look beyond their liberal positions on gay marriage and abortion and see that, on the whole, they are good politicians. But I don't see myself ever supporting the gay marriage/abortion aspects of their platform.

If that's your rationale, like GSAtW said, then just make that your rationale. You've tied yourself up in knots trying to make a secular argument to convince people who aren't convinced by your religious argument, but it makes absolutely no sense. Not one bit.

And if you think that religious supporters of gay marriage have positions that are explicitly unsupported by the Bible, why not ask one of them why their position is what it is, and what biblical support they feel like it has? Why not read something like God and the Gay Christian by Matthew Vines for a biblical interpretation that favors gay marriage? You may not agree with it, but those arguments are there, and are more nuanced than your straw man construction.

[King]

I listened to the oral arguments for Obergefell v. Hodges today. Very interesting.

The lawyer for Question 1 pretty much does Wulfric's procreation argument. Ginsberg slammed it easily by noting that it would be unconstitutional for states to revoke marriage licenses for postmenopausal women.

Question 2 is hilarious, however. Donald Whalen for the State of Tennessee completely bungles his case. He declares that there is no constitutional right for Tennessee to recognize even heterosexual marriages from other states, and that there is precedent in the court for this. The case he brings up Breyer rips up from memory as irrelevant. Even Scalia is shocked that Whalen would try to use that and ends up nudging him to talk about Article IV of the Constitution instead of attempting to draw up precedence, to which Whalen responds "I'm not sure I understand what you are saying, your honor."

[CountryClassSF]

Having listened to the oral arguments, Kennedy's comments about the reluctance to say the court knowing better is a bit surprising and encouraging, but I am of the belief that they will indeed impose SSM

[Slander and/or Libel]

Having listened to the oral arguments, Kennedy's comments about the reluctance to say the court knowing better is a bit surprising and encouraging, but I am of the belief that they will indeed impose SSM

What will be imposed on you if they rule in favor of SSM? What will be required of you by such a decision?

[King]

Having listened to the oral arguments, Kennedy's comments about the reluctance to say the court knowing better is a bit surprising and encouraging, but I am of the belief that they will indeed impose SSM

Kennedy left a slight door open on question 1. However, question 2 sounds like Kennedy and Roberts both may rule that all states have to recognize same sex marriage if legalized in another state. Meaning it will be de facto legal everywhere as long as the ceremonies are held in legal states.

[CountryClassSF]

They could, in theory, I guess, say that the constitution does not grant a constitutional right to marriage (which to me is not debatable), but do an equal protection argument on states having to recognize out-of-state marriages already + not recognizing in-state same-sex marriages.

And this ruling I'd be more comfortable with because it would not create a slippery slope situation

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

I listened to the oral arguments for Obergefell v. Hodges today. Very interesting.

The lawyer for Question 1 pretty much does Wulfric's procreation argument. Ginsberg slammed it easily by noting that it would be unconstitutional for states to revoke marriage licenses for postmenopausal women.

Question 2 is hilarious, however. Donald Whalen for the State of Tennessee completely bungles his case. He declares that there is no constitutional right for Tennessee to recognize even heterosexual marriages from other states, and that there is precedent in the court for this. The case he brings up Breyer rips up from memory as irrelevant. Even Scalia is shocked that Whalen would try to use that and ends up nudging him to talk about Article IV of the Constitution instead of attempting to draw up precedence, to which Whalen responds "I'm not sure I understand what you are saying, your honor."

For reference: I listened as well, and the case referenced is Nevada v. Hall, which was a case on people negligently injured on highways, not even remotely related to the issue of marriage: https://supreme.justia.com/cases/federal/us/440/410/

-----

I think "same sex marriage not a right, but must be recongized if performed legally" is the most likely outcome. Even Breyer expressed concern at one point during question 1 w/ SCOTUS deciding the issue of marriage for the country, but question 2 was such a disaster for the anti-ssm side that Mr. Whalen actually ended his oral argument 10 minutes before his time would have expired.

[King]

Yea, it's a pretty obvious win for SSM on Question 2, which kills the fight anyway. If states have to acknowledge SSMs performed elsewhere, what these states are trying to prevent is now over. There will be recognized same sex married couples living in Tennessee from now on, whether than license was issued in Tennessee or not.

Question 1 would just make it simpler by forcing Tennessee to change the law on the books as well.

[Alcon]

I impose it on public policy because not doing so would make me an accomplice to sin, which also isn't tolerated by god. The only way I'd change this is if one could prove to me through scripture that god has given up on imposing man-woman marriage. I know there are christians who personally support gay marriage (not just endorse it to separate church and state, but endorse it because they truly support it), but their argument, as I understand it, is simply "Well, that was a long time ago, and surely god doesn't endorse 'unreasonable political positions'". That's not an argument that's (to my knowledge, correct if wrong) supported by the bible, it's just a rationalization.

I'm an atheist, so I don't really have a position on what interpretations of the Bible are 'correct' or not.  However, in your last post you just unequivocally stated that you refuse to change your mind, so I'm not sure why you're asking anyway.  You seem to have decided that you have a religiously-formed conceptualization of what's good and bad, and that you will support public policies based on that, even if -- in more secular terms of "good" and "bad," the ones we've been discussing -- those policies do net-harm.

If you'd like me to explain why I think that position is a problem, I can.  But, again, that's not my issue.  My issue is that you've defended this position, up until now, with a secular argument.  I'm not sure why you have, since I gather it's not your primary argument, and it honestly seems reverse-engineered.  My issue here is that I want you to understand the secular argument you've levied just does not hold up logically at all.

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

I impose it on public policy because not doing so would make me an accomplice to sin, which also isn't tolerated by god. The only way I'd change this is if one could prove to me through scripture that god has given up on imposing man-woman marriage. I know there are christians who personally support gay marriage (not just endorse it to separate church and state, but endorse it because they truly support it), but their argument, as I understand it, is simply "Well, that was a long time ago, and surely god doesn't endorse 'unreasonable political positions'". That's not an argument that's (to my knowledge, correct if wrong) supported by the bible, it's just a rationalization.

I'm an atheist, so I really don't have a position on what interpretations of the Bible are correct or not.  However, in your last post you just unequivocally stated that you have no refuse to change your mind, so I'm not sure why you're asking anyway.  You seem to have decided that you have a religiously-formed conceptualization of what's good and bad, and that you will support public policies based on that, even if -- in more secular terms of "good" and "bad," the ones we've been discussing -- those policies do net-harm.

If you'd like me to explain why I think that position is a problem, I can.  But, again, that's not my issue.  My issue is that you've defended this position, up until now, with a secular argument.  I'm not sure why you have, since I gather it's not your primary argument, and it honestly seems reverse-engineered.  My issue here is that I want you to understand the secular argument you've levied just does not hold up logically at all.

I used a secular argument because, those, when used effectively, are more convincing in society. I have not found an infallible secular argument for SSM prohibition, but the argument I presented here is one I feel is closer to infallible than "wait and see" or "SS couples are bad at raising children", which are the other main secular arguments for SSM prohibition, outside of downright crazy arguments like the 900,000 abortions thing.

I misspoke above when I said I would never change my position - but again, the only way I would (consider) endorse(ing) SSM is if I were to be convinced that prohibiting it is not in fact endorsed by scripture.

[Flake]

Go Alcon

[Alcon]

I used a secular argument because, those, when used effectively, are more convincing in society. I have not found an infallible secular argument for SSM prohibition, but the argument I presented here is one I feel is closer to infallible than "wait and see" or "SS couples are bad at raising children", which are the other main secular arguments for SSM prohibition, outside of downright crazy arguments like the 900,000 abortions thing.

Do you, or do you not, still believe the argument you've been forwarding?  I've now spent like five long posts systematically explaining why the argument totally fails, and now you're describing it as "closer to infallible" than other (admittedly terrible) arguments.  Is this actually an argument you're going to continue to defend (how?!), or is it just a well-intentioned rationalization you put forth to avoid admitting your real argument was religious?

I misspoke above when I said I would never change my position - but again, the only way I would (consider) endorse(ing) SSM is if I were to be convinced that prohibiting it is not in fact endorsed by scripture.

I get that your argument is that secular evaluations of good and harm don't matter to you, because you allow your personal religious views to override them when deciding public policy.   Why are you open to an argument that you're wrong on scripture, but not an argument that this approach to public policy is a problem?

[Attorney General, LGC Speaker, and Former PPT Dwarven Dragon]

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Actually, you've made me legitimately curious here. If you have an argument beyond "church and state separation is good" on why my approach to public policy is a problem, go ahead and explain it. Not saying it will change my mind, but I'm curious enough to hear you out.

[Alcon]

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Actually, you've made me legitimately curious here. If you have an argument beyond "church and state separation is good" on why my approach to public policy is a problem, go ahead and explain it. Not saying it will change my mind, but I'm curious enough to hear you out.

I'm happy to do that, but first, can you tell me whether or not you still endorse your secular argument here?  You just called it "closer to infallible" (?!) than other arguments...it certainly sounds less ridiculous than those arguments, but do you actually still believe it's logically sound?  If so, dude, how?