:|"Nathan A. Barclay" <nbarclay@hiwaay.net> wrote in
:|news:10omnpi9m7j3d28@corp.supernews.com:
:|> "The Lone Weasel" <loneweaselNO@SPAMyahoo.com> wrote in
:|> news:Xns959790C02247Cloneweaselyahooco@130.133.1.4...
:|>> "Jeff Strickland" <beerman@yahoo.com> wrote in
:|>> news:10oiavki98j603@corp.supernews.com:
:|>
:|>> And if the issue is civil marriage, I don't see how any of
:|>> these state bans on gay marriage can pass the equal
:|>> protection test under the Fourteenth Amendment, if
:|>> presented to the US Supreme Court, and if the USSC isn't
:|>> dominated by rightwing religious ideologues.
:|>
:|> This position is WAY off base. Under the concept of equal
:|> protection, we are obligated to recognize homosexual unions
:|> as legally equivalent to heterosexual marriages if and only
:|> if they provide essentially the same value to society.
:|
:|Well, you have to accept that mutual expressions of homosexual
:|love and sex are legal in the United States. See Lawrence v
:|Texas.
:|
:|How can you allow love between consenting adults and not allow
:|the normal expressions of love, some private others public?
:|
:|Sex is a private expression of love, but marriage - family
:|building - child bearing and child raising - are public
:|expressions of love. It's exactly the same with gays.
:|
:|Married people have that right to free expression; they enjoy
:|due process rights; they have rights of privacy and of equal
:|protection under the law. To deny the ultimate expression of
:|love between consenting adults isn't just inhumane. it's
:|unconstitutional under the First, Fifth, Ninth and Fourteenth
:|Amendments.
:|
:|> But
:|> reproductive biology says otherwise, loudly and clearly.
:|
:|You seem to be laboring under the misconception that being gay
:|means being sterile. Engaging in gay sex does not very often
:|result in pregnancy, but surrogates can be used. Also you
:|forget that gay people already adopt children and raise single
:|and dual parent families that way.
:|
:|And since when did reproductive dysfunction disqualify any
:|heterosexuals from getting married? It never did.
:|
:|Reproductive ability has never determined whether straight
:|people could wed, and so it can't be used as an excuse to
:|prevent gay people from enjoying the same freedom of
:|expression.
:|
:|> The main reason why civil law takes a special interest in
:|> marriage is that men and women can and very often do have
:|> children together. Most people believe that as a general
:|> rule, the best possible environment for children to be
:|> brought up in is a family in which both of their biological
:|> parents are present. Laws that encourage and support
:|> marriage encourage and support having children brought up
:|> in such an environment. That provides a clear and
:|> legitimate reason why it can be considered good for society
:|> to give married couples a special status oriented toward
:|> keeping them together permanently, a status that we do not
:|> extend to all roommates.
:|>
:|> In contrast, homosexual sex has no more to do with human
:|> reproduction than masturbation does, or than if people did
:|> not have sex at all. Barring massive intervention that
:|> currently is possible only in science fiction, it is
:|> theoretically impossible for a homosexual couple to have a
:|> child in which both members of the couple are the child's
:|> parents. That creates a clear and major differentiation
:|> between heterosexual marriages and homosexual domestic
:|> partnerships, a differentiation based on science and on
:|> value to society rather than just on religious beliefs or
:|> on arbitrary whim.
:|>
:|> Granted, we do allow heterosexual couples who are too old
:|> to have children, or who cannot have children for some
:|> medical reason, or who currently do not want children to
:|> marry. We could legitimately exclude them if we wanted to,
:|> but most of us don't like the idea of telling people that
:|> they cannot marry under the law just because they are too
:|> old or just because they have health problems. Further,
:|> couples who do not want children today might change their
:|> minds at some point in the future, so even when couples do
:|> not currently want children, there is a significant
:|> possibility that supporting their marriage today will
:|> ultimately end up supporting a family with children.
:|>
:|> But with homosexual couples, the inability to have children
:|> is a matter of basic biology, not just a matter of age or
:|> health. Defining the outer bounds of marriage in such a
:|> way that people who could have children together if age and
:|> health permitted can get married but people who cannot have
:|> children together without regard to age and health cannot
:|> get married is a reasonable place to draw the line. People
:|> can argue that it is not the best place to draw the line,
:|> but that debate belongs in the political arena, not the
:|> judicial one.
:|>
:|> Further, the concept of a "married couple" itself loses
:|> virtually all of its purpose when divorced from
:|> reproductive biology. In reproduction, the number two has
:|> a special magic. Any fewer than two people is not enough
:|> to reproduce, while anything more is too many for any
:|> single act of reproduction. But when marriage is defined
:|> in a way that has essentially nothing to do with
:|> reproductive biology, that magic disappears. What
:|> legitimate purpose in law could be served by allowing two
:|> homosexuals to form a marriage, but not three or four or
:|> five?
:|>
:|> Similarly, what reason would we have sufficient to justify
:|> laws favoring homosexuals who choose "permanent" unions
:|> over homosexuals who choose temporary ones? Concern about
:|> sexually transmitted diseases might provide some excuse,
:|> but the reality under current law is that marriage ensures
:|> neither monogamy nor permanence. Adultery is not a crime,
:|> and divorce is not particularly difficult.
:|>
:|> When marriage is divorced from human reproduction, the
:|> entire concept as currently defined falls apart. Without
:|> that tie, it would make more sense to do away with marriage
:|> as a civil institution entirely than to extend it to
:|> additional people, because anywhere we might draw the line,
:|> we would end up being unfair in our policies of what kinds
:|> of marriages we allow and what kinds we do not.
:|>
:|> I would also point out that when homosexuals demand a
:|> special status or special benefits that are not available
:|> to other roommates, they themselves are seeking to violate
:|> or at least undermine the equal protection of the laws.
:|> There are some things that homosexuals want that I think it
:|> would be reasonable to offer on a basis that has nothing to
:|> do with sex, and perhaps even on a basis that has nothing
:|> to do with whether people currently live together. The
:|> ability to designate close friends to be treated as family
:|> for purposes of hospital visitation is a good example. But
:|> to whatever extent we extend benefits currently associated
:|> with marriage to homosexuals, I believe that equal
:|> protection demands that we do so in a way that does NOT
:|> define the rights or status available in terms of sexual
:|> behavior. (Note, especially, the situation of a brother
:|> and sister living together. A marriage between them would
:|> be prohibited on the basis of incest, but there is no good
:|> reason why their non-sexual relationship should be given
:|> any less legal recognition than a homosexual union.)
:|>
:|> In addition, I would point out that when benefits for
:|> married couples have financial value, that creates a
:|> disparity that places single people at a disadvantage. I'm
:|> not upset over the idea that my married coworkers might
:|> receive fringe benefits worth a little more than what I as
:|> a single person receive because that difference is intended
:|> to support families who have or may in the future have
:|> children. After all, support for families produces at
:|> least some indirect value for me. But why in the world
:|> should I view it as either legitimate or compatible with
:|> the equal protection of the laws to give a coworker more
:|> valuable fringe benefits than I receive just because that
:|> person is involved in a homosexual "marriage" that my own
:|> religious beliefs classify as a sin? I'm certainly not so
:|> perfect that I'm inclined to go around arbitrarily trying
:|> to turn other people's sins into crimes. But I consider it
:|> absurd - and a threat to my own freedom - for the law to
:|> reward people for engaging in actions I regard as sinful..
:|>
:|> Finally, I would point out that our society would cease to
:|> be a democracy if judges would start going around using
:|> "the equal protection of the laws" as an excuse to
:|> arbitrarily force their own values or priorities onto
:|> everyone else. Certainly, there are situations where
:|> differences in how people are treated are so clearly unfair
:|> and arbitrary that judicial intervention is warranted.
:|> Society must not condone deliberate harm to members of a
:|> minority they dislike, and the majority must not be
:|> permitted to pass laws with a clear goal of arbitrarily
:|> benefiting themselves at the expense of a minority. But
:|> when there are objective reasons behind differences in how
:|> the law treats one situation and how it treats another,
:|> reasons that can be defended as based on the good of
:|> society as a whole using objective evidence even if not
:|> everyone agrees with that interpretation, a democratic
:|> society must not allow judges to overturn laws supported by
:|> the majority just because the judges personally disagree
:|> with the majority's interpretation of the situation.
:|
:|"Almighty God created the races white, black, yellow, malay
:|and red, and he placed them on separate continents. And but
:|for the interference with his arrangement there would be no
:|cause for such marriages. The fact that he separated the
:|races shows that he did not intend for the races to mix."
:|
:|[see below]
:|
:|From Loving v Virginia (1967):
:|
:|This case presents a constitutional question never addressed
:|by this Court: whether a statutory scheme adopted by the
:|State of Virginia to prevent marriages between persons
:|solely on the basis of racial classifications violates the
:|Equal Protection and Due Process Clauses of the Fourteenth
:|Amendment. 1 For reasons which seem to us to reflect the
:|central meaning of those constitutional commands, we
:|conclude that these statutes cannot stand consistently with
:|the Fourteenth Amendment.
:|
:|In June 1958, two residents of Virginia, Mildred Jeter, a
:|Negro woman, and Richard Loving, a white man, were married
:|in the District of Columbia pursuant to its laws. Shortly
:|after their marriage, the Lovings returned to Virginia and
:|established their marital abode in Caroline County. At the
:|October Term, 1958, of the Circuit Court [388 U.S. 1, 3] of
:|Caroline County, a grand jury issued an indictment charging
:|the Lovings with violating Virginia's ban on interracial
:|marriages. On January 6, 1959, the Lovings pleaded guilty to
:|the charge and were sentenced to one year in jail; however,
:|the trial judge suspended the sentence for a period of 25
:|years on the condition that the Lovings leave the State and
:|not return to Virginia together for 25 years. He stated in
:|an opinion that:
:|
:|"Almighty God created the races white, black, yellow, malay
:|and red, and he placed them on separate continents. And but
:|for the interference with his arrangement there would be no
:|cause for such marriages. The fact that he separated the
:|races shows that he did not intend for the races to mix."
:|
:|After their convictions, the Lovings took up residence in
:|the District of Columbia. On November 6, 1963, they filed a
:|motion in the state trial court to vacate the judgment and
:|set aside the sentence on the ground that the statutes which
:|they had violated were repugnant to the Fourteenth
:|Amendment. The motion not having been decided by October 28,
:|1964, the Lovings instituted a class action in the United
:|States District Court for the Eastern District of Virginia
:|requesting that a three-judge court be convened to declare
:|the Virginia antimiscegenation statutes unconstitutional and
:|to enjoin state officials from enforcing their convictions.
:|On January 22, 1965, the state trial judge denied the motion
:|to vacate the sentences, and the Lovings perfected an appeal
:|to the Supreme Court of Appeals of Virginia. On February 11,
:|1965, the three-judge District Court continued the case to
:|allow the Lovings to present their constitutional claims to
:|the highest state court.
:|
:|The Supreme Court of Appeals upheld the constitutionality of
:|the antimiscegenation statutes and, after [388 U.S. 1, 4]
:|modifying the sentence, affirmed the convictions. 2 The
:|Lovings appealed this decision, and we noted probable
:|jurisdiction on December 12, 1966, 385 U.S. 986 .
:|
:|The two statutes under which appellants were convicted and
:|sentenced are part of a comprehensive statutory scheme aimed
:|at prohibiting and punishing interracial marriages. The
:|Lovings were convicted of violating 20-58 of the Virginia
:|Code:
:|
:|"Leaving State to evade law. * If any white person and
:|colored person shall go out of this State, for the purpose
:|of being married, and with the intention of returning, and
:|be married out of it, and afterwards return to and reside in
:|it, cohabiting as man and wife, they shall be punished as
:|provided in 20-59, and the marriage shall be governed by the
:|same law as if it had been solemnized in this State. The
:|fact of their cohabitation here as man and wife shall be
:|evidence of their marriage."
:|
:|Section 20-59, which defines the penalty for miscegenation,
:|provides:
:|
:|"Punishment for marriage. * If any white person intermarry
:|with a colored person, or any colored person intermarry with
:|a white person, he shall be guilty of a felony and shall be
:|punished by confinement in the penitentiary for not less
:|than one nor more than five years."
:|
:|Other central provisions in the Virginia statutory scheme
:|are 20-57, which automatically voids all marriages between
:|"a white person and a colored person" without any judicial
:|proceeding, 3 and 20-54 and 1-14 which, [388 U.S. 1, 5]
:|respectively, define "white persons" and "colored persons
:|and Indians" for purposes of the statutory prohibitions. 4
:|The Lovings have never disputed in the course of this
:|litigation that Mrs. Loving is a "colored person" or that
:|Mr. Loving is a "white person" within the meanings given
:|those terms by the Virginia statutes. [388 U.S. 1, 6]
:|
:|
:|LOVING v. VIRGINIA, 388 U.S. 1 (1967)