Author Topic: DOMA/LGBT Marriage Merged Thread  (Read 7919 times)

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Re: Doma
« Reply #30 on: December 10, 2012, 02:42:52 PM »
When a law violates the basic tenets of human and civil rights within this country by denying rights to a segment of the population that it grants to another then absolutely "This is a rights issue and the law will be struck down by the SC as it should." is a justifiable reason to strike down a law. Its simple 14th Amendment stuff.
1. False. What you said, is not what 14th says.

2. Any man can marry any woman & vice versa. Even if the man and/or woman is gay. Not sure the Due Process case is so cut and dried.

3. Doma prevents the federal gov't from recognizing state marriages, so its not a straight forward rights issue with the states (states cannot abridge the imm/priv of individuals, which often incorporates positive rights from the fed to the states, but doesn't work the other way as far as I know)

Your argument might hold if it was going the other way - i.e. from a federal ssm statute to the states denying that. But IANAL and neither are you, but the fact that you don't feel any need to justify it proves my point: all that matters is you think you are right, so the SC should go that way.
The Equal Protection Clause of the 14th Amendment pretty much has been mentioned in just about every SC decision regarding anything to do with civil rights violations.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Seems pretty clear to me. I don't care if it is a federal law it still violates this tenet of the 14th Amendment and that's why it will be struck down.
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Offline Brendan

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Re: Doma
« Reply #31 on: December 10, 2012, 04:40:34 PM »
When a law violates the basic tenets of human and civil rights within this country by denying rights to a segment of the population that it grants to another then absolutely "This is a rights issue and the law will be struck down by the SC as it should." is a justifiable reason to strike down a law. Its simple 14th Amendment stuff.
1. False. What you said, is not what 14th says.

2. Any man can marry any woman & vice versa. Even if the man and/or woman is gay. Not sure the Due Process case is so cut and dried.

3. Doma prevents the federal gov't from recognizing state marriages, so its not a straight forward rights issue with the states (states cannot abridge the imm/priv of individuals, which often incorporates positive rights from the fed to the states, but doesn't work the other way as far as I know)

Your argument might hold if it was going the other way - i.e. from a federal ssm statute to the states denying that. But IANAL and neither are you, but the fact that you don't feel any need to justify it proves my point: all that matters is you think you are right, so the SC should go that way.
The Equal Protection Clause of the 14th Amendment pretty much has been mentioned in just about every SC decision regarding anything to do with civil rights violations.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Seems pretty clear to me. I don't care if it is a federal law it still violates this tenet of the 14th Amendment and that's why it will be struck down.
You realize state != federal gov't? Therefor wouldn't over turn DOMA which is a federal law? You keep mixing the two (there is also the CA Prop challenge, but that's separate, and not equal.)

Offline Brendan

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Re: Doma
« Reply #32 on: December 10, 2012, 04:44:20 PM »
I'm arguing that Democrats are willing to abandon the constitution to in act their progressive policy preferences (expanding federal gov't to enact a host of positive rights that enable them to balkanize the American public along single issues). Game theory demands a tit for tat approach. A nice guy approach just means you always get screwed. Republicans should strike back with laws that follow the same legislative philosophy, but enact conservative policy goals.

Likely results: progressive left challenges to new conservative laws are upheld at SC (likely with support of conservative and libertarian groups), creating precedent to over turn the progressive laws on the same ground. DOMA example would be that if the SC over turns it saying the federal gov't cannot tell states who is married or not because they haven't been granted that power leads to a challenges to a ruling on a topic we are not allowed to discuss.

I'm not arguing that its a good thing overall - but I think its necessary to play hard ball in politics.

If you're familiar with game theory, then you should be aware that:

- tit-for-tat is not an optimal strategy in all game theory paradigms, although it's believed to be in most of the more "famous" versions.  It also requires in-kind response to positive actions by the other party.  It's not just for competitive retaliation.

- game theory approaches tend to produce faulty conclusions when applied inconsistently or asymmetrically.  For example, in this situation, if game theory demands conservatives respond to progressive expansion of federal power by supporting expansion of their own, then it equally demands that progressives respond with support for further expansion, then conservatives respond in kind, and progressives in kind, etc. etc. 

The net result of the tit-for-tat approach over time is both conservatives and progressives continually promoting greater and greater federal authority, and only differing on where and how the expansion should occur.  This is much more in line with progressive philosophy than conservative, and that's without getting into practical considerations like conservative voters becoming much more disillusioned with their party's actions than progressives are with theirs. 

The Supreme Court could derail this process early on as you mention, but it's a lot of eggs to put in a basket that has both historically and recently shown an inclination to support expanded federal powers.  And even if these hypothetical rulings strike down these hypothetical conservative laws, they may well do so in too narrow a manner to be equally applied to progressive policies.

Unless the SC responds in a fairly specific way early in the process, it's difficult to see tit-for-tat as you're describing it as an optimal conservative strategy.  It can sound appealing in individual iterations, but from a conservative perspective, the longer this strategy is employed, the closer it seems to get to the old saying "When you wrestle with a pig, you both get covered in 'mud' (altered for CB) and only the pig likes it."
Yes I meant they need to respond tit-for-tat tactically. Again I'm saying they should push the constitutional limits to enact conservative principles - not grow federal power. I agree they may not be saved by SC, but it's still better to rachet up the cost for progressives moving extra-constitutional laws. The alternative is the keep losing the strategic battle and look bad tactically. That's not a winning strategy.

In other words if progressives create constitutional loop holes, conservatives should use them to enact conservative policies.



Offline colincb

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Re: Doma
« Reply #33 on: December 10, 2012, 04:48:01 PM »
When a law violates the basic tenets of human and civil rights within this country by denying rights to a segment of the population that it grants to another then absolutely "This is a rights issue and the law will be struck down by the SC as it should." is a justifiable reason to strike down a law. Its simple 14th Amendment stuff.
1. False. What you said, is not what 14th says.

2. Any man can marry any woman & vice versa. Even if the man and/or woman is gay. Not sure the Due Process case is so cut and dried.

3. Doma prevents the federal gov't from recognizing state marriages, so its not a straight forward rights issue with the states (states cannot abridge the imm/priv of individuals, which often incorporates positive rights from the fed to the states, but doesn't work the other way as far as I know)

Your argument might hold if it was going the other way - i.e. from a federal ssm statute to the states denying that. But IANAL and neither are you, but the fact that you don't feel any need to justify it proves my point: all that matters is you think you are right, so the SC should go that way.
The Equal Protection Clause of the 14th Amendment pretty much has been mentioned in just about every SC decision regarding anything to do with civil rights violations.

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Seems pretty clear to me. I don't care if it is a federal law it still violates this tenet of the 14th Amendment and that's why it will be struck down.
I agree with you essentially, however, …

The DOMA’s section 2 states that no state is forced to recognize same sex marriages of another state and, under the DOMA’s section 3, marriage is limited to one man and one woman for federal law. According to the U.S. General Accountability Office, there were over a 1,100 provisions as of 2004 in the federal code relating to marital status, many of which have monetary consequences (veteran benefits, federal pensions, income taxes, estate taxes, etc.) The DOMA’s Section 3 has been ruled unconstitutional 8 times primarily under the 5th Amendment’s “equal protection” clause whereby the federal government was unable to justify any legitimate purpose for discriminating against members of homosexual marriages.

If the SCOTUS rules in the same manner on section 3 that the federal government cannot discriminate against married gay individuals, then I suspect that it will also rule that section 2 is also unconstitutional under the 14th Amendment’s “equal protection” clause in the same decision. That is, if the federal government cannot discriminate against members of gay marriages, then the states cannot either. If the SCOTUS does not strike down section 2 at the same time as section 3, it would appear inevitable that it will have to eventually.

Of course, this all depends on the SCOTUS striking down DOMA’s section 3, which I expect, but which is not a lock.
« Last Edit: December 10, 2012, 04:54:27 PM by colincb »

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Re: Doma
« Reply #34 on: December 10, 2012, 05:23:09 PM »
Yes I meant they need to respond tit-for-tat tactically. Again I'm saying they should push the constitutional limits to enact conservative principles - not grow federal power. I agree they may not be saved by SC, but it's still better to rachet up the cost for progressives moving extra-constitutional laws. The alternative is the keep losing the strategic battle and look bad tactically. That's not a winning strategy.

In other words if progressives create constitutional loop holes, conservatives should use them to enact conservative policies.

You've moved away from game theory a bit here, but since it's the crux of your initial argument and I think it's interesting:

As you probably know, in the classic Prisoner's Dilemma paradigm, the optimal approach isn't pure tit-for-tat, it's opening with a cooperative move, then using tit-for-tat thereafter.  There's also a small random tendency to cooperate after a competitive move by the opponent to avoid downward spiraling, but that's a bit secondary.

Would you agree that game theory demands conservatives approach legislative/ideological conflicts with an initial move to cooperate with progressives?  Or is the support for game theory-based tactics more selective? 

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Re: Doma
« Reply #35 on: December 10, 2012, 07:06:01 PM »
This has become an interesting debate since I last looked.

I don't acutally care about ideological commitments to big or small government or how people choose to interpret the consitution.  I care least of all perhaps about what Thomas Jefferson may have wanted given that he believed that all men were created equal and chose to leave women, minorities and all poor folks out of the 'rights' department.

If we can all bow to the alter of humility for just a second, maybe we could actually begin to problem solve something very specific -- the only thing I think that actually matters:  What is the most efficient/effective way to ensure that gay men and lesbian women are able to get married legally anywhere in America with all the rights, responsibilities and benefits that heterosexual couples are afforded?

I don't care at all about political ideological consistency, I care that people are not systematically discriminated against in my country.  I would feel the same way about slave's rights, about women's right to vote,  about rights of blacks to drink from the same water fountains or attend the same schools as whites. 

I fully understand that there is an opposing view - many people believe that gays should not have the right to marry. Perhaps that is the debate we could, and should, have (after all, everything else is a smokescreen, this is all that really matters in this discussion).

I am fairly certain that allowing slaves their freedom, allowing women to vote and allowing blacks to attend schools with whites did not result in tyranny.  Likewise, ensuring that gay men and lesbian women have the right to a legal marriage will not lead us down the slippery slope to tyranny, but rather to more folks having the right to pursue happiness. 

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Re: Doma
« Reply #36 on: December 10, 2012, 07:52:02 PM »
This has become an interesting debate since I last looked.

I don't acutally care about ideological commitments to big or small government or how people choose to interpret the consitution.  I care least of all perhaps about what Thomas Jefferson may have wanted given that he believed that all men were created equal and chose to leave women, minorities and all poor folks out of the 'rights' department.

If we can all bow to the alter of humility for just a second, maybe we could actually begin to problem solve something very specific -- the only thing I think that actually matters:  What is the most efficient/effective way to ensure that gay men and lesbian women are able to get married legally anywhere in America with all the rights, responsibilities and benefits that heterosexual couples are afforded?

I don't care at all about political ideological consistency, I care that people are not systematically discriminated against in my country.  I would feel the same way about slave's rights, about women's right to vote,  about rights of blacks to drink from the same water fountains or attend the same schools as whites. 

I fully understand that there is an opposing view - many people believe that gays should not have the right to marry. Perhaps that is the debate we could, and should, have (after all, everything else is a smokescreen, this is all that really matters in this discussion).

I am fairly certain that allowing slaves their freedom, allowing women to vote and allowing blacks to attend schools with whites did not result in tyranny.  Likewise, ensuring that gay men and lesbian women have the right to a legal marriage will not lead us down the slippery slope to tyranny, but rather to more folks having the right to pursue happiness.

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Offline Brendan

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Re: Doma
« Reply #37 on: December 11, 2012, 11:14:53 AM »
Yes I meant they need to respond tit-for-tat tactically. Again I'm saying they should push the constitutional limits to enact conservative principles - not grow federal power. I agree they may not be saved by SC, but it's still better to rachet up the cost for progressives moving extra-constitutional laws. The alternative is the keep losing the strategic battle and look bad tactically. That's not a winning strategy.

In other words if progressives create constitutional loop holes, conservatives should use them to enact conservative policies.

You've moved away from game theory a bit here, but since it's the crux of your initial argument and I think it's interesting:

As you probably know, in the classic Prisoner's Dilemma paradigm, the optimal approach isn't pure tit-for-tat, it's opening with a cooperative move, then using tit-for-tat thereafter.  There's also a small random tendency to cooperate after a competitive move by the opponent to avoid downward spiraling, but that's a bit secondary.

Would you agree that game theory demands conservatives approach legislative/ideological conflicts with an initial move to cooperate with progressives?  Or is the support for game theory-based tactics more selective?
Your summary is correct and yes I'm familiar with it. Game theory is math - it can only inform the strategies parties use. Real world situations have lots of gray and also randomness (not all actors are rational.) Plus its not just R v D, its also voters vs politicians, and politicians vs lobbyist, etc. Probably talking about double or tripple dimensions to analyze it robustly.

That being said, I don't see us at move 0, so I don't think we are at a "open nice" move. I think the Republicans have played ball (mostly) and the Dems haven't. Republicans need to play more hard ball. Start passing small tax bills that effect largely Democrat constituents - like repealing the hollywood tax cuts, the lobbyist tax, the state/municpal tax credit, etc. Force the Dems into arguing against raising taxes on members of the 1% that are there money/power base. That will make it harder for them to launch silly populist partisan attacks on Rs.

I'm having a harder time with concrete proposals that take advantage of Dem extra-constitutional activities, but I'm not an expert either. Something like how the Obamacare penalty was seen as a penalty could be a useful bit of loophole to exploit legislatively.

Offline Brendan

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Re: Doma
« Reply #38 on: December 11, 2012, 11:35:15 AM »
What is the most efficient/effective way to ensure that gay men and lesbian women are able to get married legally anywhere in America with all the rights, responsibilities and benefits that heterosexual couples are afforded?

I don't care at all about political ideological consistency, I care that people are not systematically discriminated against in my country.  I would feel the same way about slave's rights, about women's right to vote,  about rights of blacks to drink from the same water fountains or attend the same schools as whites. 

I fully understand that there is an opposing view - many people believe that gays should not have the right to marry. Perhaps that is the debate we could, and should, have (after all, everything else is a smokescreen, this is all that really matters in this discussion).

There are a few things I disagree with:
1. Equating not creating SSM with abolishing slavery.

2. Saying that we should have the debate - the whole point of judicial action like we saw in MA and may see at the SC is to AVOID debate. This is short sighted in my opinion, because it will turn an issue that is becoming mainstream accepted (SSM) and make it more divisive.

3. That just because this is a good (not proven, but I'll concede here for the bigger point) we should get to it as efficient as possible.

On number 3 - you might want to have some humility yourself. It's easy to lambast Jefferson now (or Washington too.) Even Adams a committed abolitionist agreed to the grand compromise of slavery as a state issue in order to ensure the union. But its completely without context to say they didn't do enough. Every little freedom you have today comes from what these men did. Sorry they didn't meet your scorecard for perfection, but seriously what have you done that you can criticize the epically large contributions of the founders? You might also have some humility to understand that these men were experts on freedoms and political economy, and bestowed a unique gift of constitutional republic for us. And that gift is the root cause for the posterity you see today.

If their is to be rule of law, then there must be rule of law. A good constitutional ruling from the SC with a bad political outcome for me is much better IMO than a bad ruling with a good political outcome. This is the exact  mentality I see arising across the liberal/progressive spectrum of the left, its utopianism at its core, and it's poison sooner or later, regardless of how sweet the first drips are.



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Re: Doma
« Reply #39 on: December 11, 2012, 11:46:48 AM »
What is the most efficient/effective way to ensure that gay men and lesbian women are able to get married legally anywhere in America with all the rights, responsibilities and benefits that heterosexual couples are afforded?

I don't care at all about political ideological consistency, I care that people are not systematically discriminated against in my country.  I would feel the same way about slave's rights, about women's right to vote,  about rights of blacks to drink from the same water fountains or attend the same schools as whites. 

I fully understand that there is an opposing view - many people believe that gays should not have the right to marry. Perhaps that is the debate we could, and should, have (after all, everything else is a smokescreen, this is all that really matters in this discussion).

There are a few things I disagree with:
1. Equating not creating SSM with abolishing slavery.

I agree with this, but he also relates it to women's suffrage, and many relate it to the civil rights movement. I think those are more accurate. 

Quote
2. Saying that we should have the debate - the whole point of judicial action like we saw in MA and may see at the SC is to AVOID debate. This is short sighted in my opinion, because it will turn an issue that is becoming mainstream accepted (SSM) and make it more divisive.

This is a completely screwed up workaround that kind of makes sense. But I just can't reconcile doing/saying nothing about it with a positive federal outcome. I can't think of a time that happened with a divisive rights issue.

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Offline Brendan

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Re: Doma
« Reply #40 on: December 11, 2012, 11:59:39 AM »
What is the most efficient/effective way to ensure that gay men and lesbian women are able to get married legally anywhere in America with all the rights, responsibilities and benefits that heterosexual couples are afforded?

I don't care at all about political ideological consistency, I care that people are not systematically discriminated against in my country.  I would feel the same way about slave's rights, about women's right to vote,  about rights of blacks to drink from the same water fountains or attend the same schools as whites. 

I fully understand that there is an opposing view - many people believe that gays should not have the right to marry. Perhaps that is the debate we could, and should, have (after all, everything else is a smokescreen, this is all that really matters in this discussion).

There are a few things I disagree with:
1. Equating not creating SSM with abolishing slavery.

I agree with this, but he also relates it to women's suffrage, and many relate it to the civil rights movement. I think those are more accurate. 

Quote
2. Saying that we should have the debate - the whole point of judicial action like we saw in MA and may see at the SC is to AVOID debate. This is short sighted in my opinion, because it will turn an issue that is becoming mainstream accepted (SSM) and make it more divisive.

This is a completely screwed up workaround that kind of makes sense. But I just can't reconcile doing/saying nothing about it with a positive federal outcome. I can't think of a time that happened with a divisive rights issue.

I'll give you a hint you aren't allowed to talk about on this board. SC ruling turned it into a culture war issue from more of a regional issue.

This is kind of off topic, but I wonder if SSM will end up being a side note:

http://io9.com/5967426/scientists-confirm-that-homosexuality-is-not-genetic--but-it-arises-in-the-womb

If this research is true it may mean that (I'm not putting a value judgement on these approaches, just saying they are likely outcomes):

1. Homosexuality can be tested for and thus like Down Syndrome a lot of parents will not have those babies won't be born in the future

and/or

2. That some sort of "vaccine" for homosexuality will be developed.

In this case (speculation) I think fertility amongst couples that don't want to have a homosexual child would be >>> than couples that do. Which might mean the end of homosexuality (or a vast reduction in their numbers.)

I just want to be clear - I don't think this is a good thing - I just think its likely given what I know/believe.


Offline InfiniteMH

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Re: Doma
« Reply #41 on: December 11, 2012, 01:14:23 PM »
All I can say is, it must suck to be a gay Celtics fan to come to a basketball forum to find out there are some people, while having never met you at all, can not only give a hoot about you but are so opposed to your happiness despite it having no affect on them whatsoever. While cheering for the same team too. So creepy. Talk about ubuntu.

Sorry guys, but statistically a lot of these people will die off pretty soon, so hang in there.

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Re: Doma
« Reply #42 on: December 11, 2012, 01:20:48 PM »
2. Saying that we should have the debate - the whole point of judicial action like we saw in MA and may see at the SC is to AVOID debate. This is short sighted in my opinion, because it will turn an issue that is becoming mainstream accepted (SSM) and make it more divisive.
I don't think it will have the same effect that it did on the Voldemort subject, which I assume is what you are referring to. The reason is, acceptance/rejection of SSM is directly correlated with age. My favorite conservative ever, the old fuddy-duddy George Will, put this very nicely this past Sunday.

Quote
Sorry they didn't meet your scorecard for perfection, but seriously what have you done that you can criticize the epically large contributions of the founders?
"Seriously", there is no requirement that one must meet in order to be critical of the founders. And this is something that the founders would agree with.

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Re: Doma
« Reply #43 on: December 11, 2012, 01:33:12 PM »

I'll give you a hint you aren't allowed to talk about on this board. SC ruling turned it into a culture war issue from more of a regional issue.

This is kind of off topic, but I wonder if SSM will end up being a side note:

http://io9.com/5967426/scientists-confirm-that-homosexuality-is-not-genetic--but-it-arises-in-the-womb

If this research is true it may mean that (I'm not putting a value judgement on these approaches, just saying they are likely outcomes):

1. Homosexuality can be tested for and thus like Down Syndrome a lot of parents will not have those babies won't be born in the future

and/or

2. That some sort of "vaccine" for homosexuality will be developed.

In this case (speculation) I think fertility amongst couples that don't want to have a homosexual child would be >>> than couples that do. Which might mean the end of homosexuality (or a vast reduction in their numbers.)

I just want to be clear - I don't think this is a good thing - I just think its likely given what I know/believe.
Before I say what I am going to say in response to this first let me declare, this is not directed at Brendan nor do I consider him or anyone else on this site in this manner.

That said, if homosexuality is not gene related but can still be passed down from generation to generation, I still don't think its going to go away.

I mean racial, sexual, ethnic, religious and sexual preference bias is not something that is gene related either but it gets passed down from generation to generation and still exists in every area of this world in a large manner.

To me this study doesn't point out that homosexuality can be eradicated from existence, as Brendan alludes to in his two points. I think all it does is prove that homosexuality is indeed a natural thing created in the womb at inception of birth. Its not a lifestyle choice.

Its not something you can choose to be or not be. Being homosexual is something happening on the molecular level in a natural manner during creation. Just like you can't choose to be white or black or Asian or tall or short, you can't choose to be hetero or homosexual. You just are.

And for that reason, this study supports the eradication of DOMA. Homosexuality is a naturally occurring thing and people who are should have the same rights as those that are not.
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Re: Doma
« Reply #44 on: December 11, 2012, 01:44:47 PM »
It's off topic, but I think any parent who would alter their pregnancy because their unborn child is predicted to be gay is a monster.

Reasonable minds can disagree about gay marriage, but the thought of an unborn genocide or "prevention" against homosexuals disgusts me, and I hope it's not something that ever gains cultural acceptance. 

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