Gay Marriage Phobia

[Drawmack]

It would be impossible for the courts to strike down every law that is based on beliefs taken on faith but it would be trivial to selectively strike down laws that are based on specific (e.g. Christian), religious beliefs.

Off the top of my head I can’t think of one, single, law that is based specifically on Christian religious beliefs.

 

[Bubba_Switzler]

This is the fourth time I am answering the question. Study historic totalitarian governmental regimes and you will understand that individual citizens need rights in order for the country to function properly.

That is not an answer. That is a punt.

Nope. I’m saying that if a system of government, or governmental practice, has been attempted, repeatedly, and failed, repeatedly, then we have historical evidence that this type of government, or governmental practice, does not lead to a successful society and that historical fact is reason enough to avoid these types of governments and governmental practices in the future…I wasn’t making a Darwinian argument that was your assertion – not mine.

That is a Darwinian argument.

Ubermench was Nitche’s theory not Darwin’s. Zarathustra was standard issue to the Nazi soldiers with their uniform and fire arm.

Nitche got his inspiration from Darwin. Mein Kamp is full of the sort of arguments you make above.

 

[Bubba_Switzler]

Off the top of my head I can’t think of one, single, law that is based specifically on Christian religious beliefs.

How about Prop 8?

 

[theistgal]

That is not an answer. That is a punt.

That is a Darwinian argument.

Nitche got his inspiration from Darwin. Mein Kamp is full of the sort of arguments you make above.

Um, guys? not that I think either of you really cares, but it’s Nietzche (and Mein Kampf. Thank you.

 

[Bubba_Switzler]

Um, guys? not that I think either of you really cares, but it’s Nietzche (and Mein Kampf. Thank you.

I do apoligise for my slopie speling.

 

[Drawmack]

That is a Darwinian argument.

So any type of argument that says hey I already tried that and it didn’t work so I don’t think I should try it again is a Darwinian argument? Here’s a hammer, come back after you’ve successfully changed your tire with it.

Nitche got his inspiration from Darwin.

Citation

Mein Kamp is full of the sort of arguments you make above.

Any work of the length and type of Mien Kampf will have some truth in it. That does not mean that the entire work is correct or that the basic premises and tenants of the work are correct.

 

[Drawmack]

Um, guys? not that I think either of you really cares, but it’s Nietzche (and Mein Kampf. Thank you.

Actually I do care, thank you for pointing that out.

 

[Bubba_Switzler]

So any type of argument that says hey I already tried that and it didn’t work so I don’t think I should try it again is a Darwinian argument? Here’s a hammer, come back after you’ve successfully changed your tire with it.

No, an argument that ascribes goodness to survival of the fittest is a Darwinian argument.

If I am changing my tire I have already decided that a changed tire is good. I then proceed to find the most effective means of changing the tire. The goodness of effectively changing the tire is subordinate to the goodness of have a changed tire.

Citation

Just google “Darwin Nietzsche” and you’ll find plenty. Here is one:

humanevents.com/article.php?id=26468

Any work of the length and type of Mien Kampf will have some truth in it. That does not mean that the entire work is correct or that the basic premises and tenants of the work are correct.

My point is that we have in Naziism a case study in the consequences of letting Darwinian logic dictate moral values.

You presume to replace religious moral values with Darwinian moral values, to test the value of a law by its anticipated effects on the survival of a society. That was Hitler’s criteria for the Holocaust.

Setting that admittedly inflamatory example aside, how do you propose to demonstrate your claim that human rights are necessary for social survival? Describe for me the methodology? Does Rome, say, count as a successful soceity or a failed one?

Finally, what is the argument for using social survival as a legal critiera? Just because a practice leads, ultimately, to social change doesn’t mean that it is atrocious. People value their lives as well as their descendents lives. What you propose would make people slaves to their descendants. What is the justification of that?

 

[WillieWonka]

It matters to many people like me. And we vote according to our religious beliefs. And that’s how it matters to the law. That’s how behaviors that are contrary to religion get outlawed.

The only question now is whether the courts will try to stop that from happening.

It would be impossible for the courts to strike down every law that is based on beliefs taken on faith but it would be trivial to selectively strike down laws that are based on specific (e.g. Christian), religious beliefs.

Only a handful of laws are enacted by direct vote. Most elections are for legislators.
Very few laws are passed by the voters.

Courts will definitely stop laws outlawing bahavior for which there is no compelling state interest. That interest may not be because of religious approval or disapproval. Pass a referendum in California saying all must attend Muslim Friday noon prayer and it will be stopped by courts as it should be. It doesn’t matter what religion says. It doesn’t matter what the voters think about it.

 

[Bubba_Switzler]

Only a handful of laws are enacted by direct vote. Most elections are for legislators. Very few laws are passed by the voters.

True enough. That is what we have here but the same issues apply when legislatures make law.

Courts will definitely stop laws outlawing bahavior for which there is no compelling state interest. That interest may not be because of religious approval or disapproval.

See:

en.wikipedia.org/wiki/Strict_scrutiny

Strict Scrutiny only arises after a right has been asserted. Laws are not simply run through a “Strict Scrutiny” test as a matter of judicial policy.

So to bring this test into play we need to first invent a constitutional right, as I noted previously.

Pass a referendum in California saying all must attend Muslim Friday noon prayer and it will be stopped by courts as it should be. It doesn’t matter what religion says. It doesn’t matter what the voters think about it.

Of course, this is an example which does fall under the current, i.e. original, understanding of the First Amendment. While I am arguing against Boies’ reinterpretation of the First Amendment, I am not arguing that it provides no protectection.

 

[WillieWonka]

True enough. That is what we have here but the same issues apply when legislatures make law.

See:

en.wikipedia.org/wiki/Strict_scrutiny

Strict Scrutiny only arises after a right has been asserted. Laws are not simply run through a “Strict Scrutiny” test as a matter of judicial policy.

So to bring this test into play we need to first invent a constitutional right, as I noted previously.

Of course, this is an example which does fall under the current, i.e. original, understanding of the First Amendment. While I am arguing against Boies’ reinterpretation of the First Amendment, I am not arguing that it provides no protectection.

Of course someone with standing has to assert the right before it goes to court.

Well, what is the current, ie original, understanding of the First Amendment?

 

[Bubba_Switzler]

Of course someone with standing has to assert the right before it goes to court.

Actually, I was referring to the requirement that the asserted right must exist in the first place. (I can assert my right to free cable television but that doesn’t make for a federal case.) Rights concepts are often developed in the academic arena and then, only later, implemented by the judiciary.

Well, what is the current, ie original, understanding of the First Amendment?

I am asuming we are talking about the Establishment Clause of the 1A.

en.wikipedia.org/wiki/Establishment_Clause_of_the_First_Amendment

You will notice that it is far narrower than a blanket prohibition on religoiusly justified legislation.

 

[WillieWonka]

Actually, I was referring to the requirement that the asserted right must exist in the first place. (I can assert my right to free cable television but that doesn’t make for a federal case.) Rights concepts are often developed in the academic arena and then, only later, implemented by the judiciary.

I am asuming we are talking about the Establishment Clause of the 1A.

en.wikipedia.org/wiki/Establishment_Clause_of_the_First_Amendment

You will notice that it is far narrower than a blanket prohibition on religoiusly justified legislation.

The right doesn’t exist if it is outlawed. That’s why the law is challenged. To gain such standing a person is usually found guilty of the offense. For exmaple, in Lawrence v Texas a gay couple was arrested for consentual sex in their own bedroom. Then they have standing and bring the case. (Yes, there are other ways.)

OK. What if the current understanding of 1a.

No one contends there is a prohbition on religiously justified legialation. The contention is religion is not grounds to outlaw behavior.

Religion is free to agree with whatever legislation it wants. If it already agrees with it before it is pased, that’s fine. If it wants to think it justifies it, that’s fine. If it wants to claim it was the first to think it up, that’s fine. Nobody cares. But not conforming with religion is not grounds for outlawing behavior.

 

[Bubba_Switzler]

The right doesn’t exist if it is outlawed.

When homosexuals take their case to the federal courts they will be asserting that the US Constitution somehow prohibits the prohibition in the CA state constitition.

No one contends there is a prohbition on religiously justified legialation. The contention is religion is not grounds to outlaw behavior.

See previous discussion on this point.

Religion is free to agree with whatever legislation it wants. If it already agrees with it before it is pased, that’s fine. If it wants to think it justifies it, that’s fine. If it wants to claim it was the first to think it up, that’s fine. Nobody cares. But not conforming with religion is not grounds for outlawing behavior.

And, yet, there is Prop 8.

 

[WillieWonka]

When homosexuals take their case to the federal courts they will be asserting that the US Constitution somehow prohibits the prohibition in the CA state constitition.

See previous discussion on this point.

And, yet, there is Prop 8.

I agree gays assert a right. That doesn’t mean it exists. They assert it exists. Many would deny it exists. That’s the point of the suit. The court then determines if the right exists.

The previous discussion will show my contention, and Boeis contention, is non-comformance with religion is not grounds for outlawing behavior.

I don’t know what you mean when you say, “And, yet, there is Prop 8.” I agree Prop 8 exists. Do you have another point in highlighting that?

You said Boeis is trying to change the current understanding of 1a. What is that current understanding?

 

[Bubba_Switzler]

You said Boeis is trying to change the current understanding of 1a. What is that current understanding?

That it prohibits a narrower set of laws than Boeis is claiming. Congress (and by incorporation, states) cannot require church attendance, public prayer, or financial support of religious institutions.

Since Prop 8 does none of these things, 1A is not relevant to it. (I don’t know how the free exercise clause would be invoked here unless homosexuals are claiming that gay marriage is part of their religion.)

Now Boeis is claiming that defining marriage to be between a man and a woman Prop 8 is establishing Christianity as much as if it were requiring gays to attend mass.

Boeis also threw in the due process clause which is a notoriously elastic phrase. I won’t even attempt a guess at the legal reasoning behind that.

Interestingly, he did not invoke the Ninth Amendment which is probably the most logical claim. But it usually dependent upon some traditional recognition of a right and gay marriage is obviously lacking that.

 

[WillieWonka]

That it prohibits a narrower set of laws than Boeis is claiming. Congress (and by incorporation, states) cannot require church attendance, public prayer, or financial support of religious institutions.

Since Prop 8 does none of these things, 1A is not relevant to it. (I don’t know how the free exercise clause would be invoked here unless homosexuals are claiming that gay marriage is part of their religion.)

Now Boeis is claiming that defining marriage to be between a man and a woman Prop 8 is establishing Christianity as much as if it were requiring gays to attend mass.

Boeis also threw in the due process clause which is a notoriously elastic phrase. I won’t even attempt a guess at the legal reasoning behind that.

Interestingly, he did not invoke the Ninth Amendment which is probably the most logical claim. But it usually dependent upon some traditional recognition of a right and gay marriage is obviously lacking that.

Do you contend the current understanding of 1a allows non-conformance with religion as grounds for outlawing behavior?

I agree 1a has nothing to do with Prop 8.

Boeis said nothing about establshing Christianity. Where do you think he said that?

Due Process is one of the grounds for overturning gay marriage bans in Massachusetts and Iowa. Also grounds in the gun rights cases in the 9th Circuit and the DC Appeals. Why do you say it is notoriously elastic? What does notoriously elastic mean?

It is vey common to cite precedent in court cases. Due Process is indeed a precedent.

I agree there was nothing about the 9th Amendment in the WSJ article by Boeis. So what? Do you contend Boeis was making a case before the court in the WSJ?

 

[Bubba_Switzler]

Do you contend the current understanding of 1a allows non-conformance with religion as grounds for outlawing behavior?

I don’t understand why you keep returning to such ambiguous formulations. 1A is relatively narrow in applicability.

Boeis said nothing about establshing Christianity. Where do you think he said that?

He doesn’t name Christianity but it’s pretty clear from the context that Christianity is the religion he feels is being imposed on homosexuals. No other relgion merits attention.

Due Process is one of the grounds for overturning gay marriage bans in Massachusetts and Iowa. Also grounds in the gun rights cases in the 9th Circuit and the DC Appeals. Why do you say it is notoriously elastic? What does notoriously elastic mean?

en.wikipedia.org/wiki/Due_process#Substantive_due_process

When a federal judge wants to make law and can’t find anything to base it on in the Constitution he usually reaches for substantive due process.

I agree there was nothing about the 9th Amendment in the WSJ article by Boeis. So what? Do you contend Boeis was making a case before the court in the WSJ?

See above discussion.

 

[WillieWonka]

I don’t understand why you keep returning to such ambiguous formulations. 1A is relatively narrow in applicability.

He doesn’t name Christianity but it’s pretty clear from the context that Christianity is the religion he feels is being imposed on homosexuals. No other relgion merits attention.

en.wikipedia.org/wiki/Due_process#Substantive_due_process

When a federal judge wants to make law and can’t find anything to base it on in the Constitution he usually reaches for substantive due process.

See above discussion.

There is nothing ambiguous about the frmulation. Here’s the quote you provided from Boeis:

"There are those who sincerely believe that homosexuality is inconsistent with their religion – and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law."

You claim Boeis is trying to change the understanding of 1a. So, what is he adding? What is he changing? He says 1a preculdes “enshrinement of religious-based diaspproval in state law.” Is that what you think he is adding or changing? If so, does 1a now approve of “enshrinement of religious-based disapproval in state law?”

I agree no religion merits attention in Boeis article. Neither Christianity, Islam, nor Judaism.

Where has a federal judge reached for Due Process when he wants to make law? Due process simply says an individual is entitled to his rights.

I acknowledge you do not know if Boeis was making a case before the court in the WSJ.in the WSJ.

Does god’s law trump man’s law?

 

[Bubba_Switzler]

You claim Boeis is trying to change the understanding of 1a. So, what is he adding? What is he changing? He says 1a preculdes “enshrinement of religious-based diaspproval in state law.” Is that what you think he is adding or changing? If so, does 1a now approve of “enshrinement of religious-based disapproval in state law?”

Yes. 1A only precludes a narrow set of religion-based laws, e.g. to join or attend a church, etc.

Where has a federal judge reached for Due Process when he wants to make law? Due process simply says an individual is entitled to his rights.

See the “criticisms” section immediatly following the ref I gave before.

Does god’s law trump man’s law?

God’s law becomes man’s law through the political process. Some Boeis try to prevent that by inventing a broader meaning of 1A.