tag:blogger.com,1999:blog-20692053.post381714410020411369..comments2023-11-03T06:35:48.003-05:00Comments on Shark and Shepherd: The Problem With PerryRick Esenberghttp://www.blogger.com/profile/07280070509167910367noreply@blogger.comBlogger47125tag:blogger.com,1999:blog-20692053.post-46013801146983552352010-08-18T06:04:36.620-05:002010-08-18T06:04:36.620-05:00Anonymous at 10:24;
If quoting the law is point...Anonymous at 10:24; <br /><br />If quoting the law is pointless in an argument over the law, then this is pointless. The language of the 14th amendment is general and commanding; it protects the equal rights of ANY person. The status of “person” is not dependent on sexual orientation. As inconvenient as it is to you: That Is The Law. If we ignore this, then we break the law.<br /><br />sean s.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-17172538367123054502010-08-15T10:24:29.750-05:002010-08-15T10:24:29.750-05:00Sean, quoting from one of the Reconstruction Amend...Sean, quoting from one of the Reconstruction Amendments to prove your point simply puts you back in the cul de sac of equal rights regardless of sexual orientation is the same as equal rights regardless of race. The Civil War wasn't fought, and the Reconstruction Amendments weren't adopted, to promote equality regardless of sexual orientation. And god save the republic if the interests of a single person are presumptively "prior to" the interests of the many.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-39840998078077636132010-08-15T07:03:51.285-05:002010-08-15T07:03:51.285-05:00Anonymous at 10:47,
In our republic, individual...Anonymous at 10:47, <br /><br />In our republic, individual rights are prior to popular will. The Constitution says that “No state shall … deny to any person within its jurisdiction the equal protection of the laws.” Unless you disagree, we all understand that homosexuals are “persons”; so they cannot be denied their equal protection of the laws.<br /><br />sean s.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-55866665649224788412010-08-14T22:47:32.652-05:002010-08-14T22:47:32.652-05:00Sean, in a representative democracy, "popular...Sean, in a representative democracy, "popularity" is entirely relevant to public policy. And unlike with race, this country has never amended the Constitution to ensure equal treatment regardless of sexual orientation. So saying the decision of millions of Californians to amend their state constitution is analogous to Jim Crow laws in the South is a nonstarter.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-34622611470091723102010-08-14T15:38:47.293-05:002010-08-14T15:38:47.293-05:00Anonymous at 9:44;
Whether same-sex marriage is p...Anonymous at 9:44;<br /><br />Whether same-sex marriage is popular or not is irrelevant; Jim Crow was popular once, but it was never just. <br /><br />The whole point of individual rights (such as the right to equal protection) is that these are things no majority can take away. If a majority of voters decided to violate the rights of just one person, it’s the Job of The Courts to stop them.<br /><br />As I wrote before, Judge Walker pulled back the curtain to reveal the truth: that opposition to same-sex marriage is built out of rationalizations on a foundation of prejudices and irrational fears. Legalized same-sex marriage is not an imposition on anyone and is an example of justice. J. Walker didn’t give anyone any rights; J. Walker didn’t invalidate any referendum; the Law did that. All J. Walker did was call a spade a spade.<br /><br />sean s.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-1934736575410814182010-08-13T09:44:39.880-05:002010-08-13T09:44:39.880-05:00If allowing same sex marriage is politically popul...If allowing same sex marriage is politically popular, its proponents wouldn't need Judge Walker to nullify the votes of millions of blue state voters. However, it isn't, so they do.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-47225139017724515822010-08-13T06:36:00.244-05:002010-08-13T06:36:00.244-05:00sean:
Thank you for crystallizing a point of this...sean:<br /><br />Thank you for crystallizing a point of this debate. Folks like Rick would say the ban on gay marriage is to protect straight marriage. But it's not clear how straight marriage is protected. If the goal is to protect and reinforce the institution per Douthat's goals, then it seems like bans on divorce and infidelity would do more good. Yet I don't see gay marriage opponents pursuing those.<br /><br />If you're not going to pursue the items that would do more to fulfill your argument, then how credible are you?<br /><br />The answer is, not very.AnotherTosaVoterhttps://www.blogger.com/profile/16530969681712342705noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-7836716101666953122010-08-13T06:05:03.108-05:002010-08-13T06:05:03.108-05:00Anonymous at 9:43 pm;
It does seem that public op...Anonymous at 9:43 pm;<br /><br />It does seem that public opinion is shifting rapidly in favor of same-sex marriage; that is good news but it’s not a reason to support same-sex marriage. That same-sex marriage “doesn't threaten my marriage or those of [your] children, and it will promote the same stability in relationships for gay people that marriage does for us ‘straights’” is the reason I support its legalization.<br /><br />I don’t know if Rick’s walking away from this debate or not; Law School is starting soon and the move to the new building has thrown a wrench in many people’s plans. A lot of professors are behind in their preparations; so Rick’s very busy right now; that and his GAB lawsuit. Much, much too early to say he’s walking away.<br /><br />sean s.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-44285341618333899242010-08-13T05:55:46.198-05:002010-08-13T05:55:46.198-05:00By the way, that anonymous comment at 5:53 was min...By the way, that anonymous comment at 5:53 was mine.<br /><br />sean s.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-89206961087191274982010-08-13T05:53:43.968-05:002010-08-13T05:53:43.968-05:00Anonymous at 8:12 am;
Another anonymous commentat...Anonymous at 8:12 am;<br /><br />Another anonymous commentator at 8:21 am correctly challenged your insinuation that a “vast majority of Americans are “bigots”, but your point retains some validity. One cannot insult and persuade at the same time. Yet the truth is that bigotry, or at least prejudices, are the primary motivation for opposing legalized same-sex marriage. Dancing around that fact is not going to help persuade people to change their minds either.<br /><br />The truth is, of course, that no one wants to be a bigot, that’s why it’s regarded as an insult. So it is necessary to show people that prejudice is at the bottom of this, and encourage people to reject these prejudices. And to remind people that even the best of us harbor prejudices, and can overcome them. This is why comparisons to racial and gender equality are helpful. Our ancestors had racial and gender prejudices; and yet we can still admire and love them and their memory.<br /><br />Equal protection of the law is not merely a “point of view”; it is a cardinal principle of our nation. All Judge Walker did was pull back the curtain to reveal the truth: that opposition to same-sex marriage is built out of rationalizations on a foundation of prejudices and irrational fears. Legalized same-sex marriage is not an imposition on anyone and is an example of justice.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-84154132268745558272010-08-13T05:52:48.882-05:002010-08-13T05:52:48.882-05:00Anonymous at 10:17 pm.
Procreation is not and nev...Anonymous at 10:17 pm.<br /><br />Procreation is not and never has been what marriage is entirely about. So, using procreation as a starting point to prohibit same-sex marriage ceased to be a “rational starting point” years ago. Now it is merely a rationalization: an excuse.<br /><br />More importantly, the question is not what marriage is “for” but what the ban on same-sex marriage is for. Even Rick and Douthat and others miss this point: in the legal process, the purposes of marriage itself are secondary to the question of what purpose the ban serves. Discussions about procreation and life-long monogamy are justifications for or definitions of marriage; but marriage does not need to be justified or defined; the ban on same-sex marriage is what needs to be justified.<br /><br />This is why Rick’s arguments are so hard to engage: they are largely irrelevant. Many opponents to same-sex marriage object that in the Perry decision, J. Walker passed over or ignored many “arguments” supporters of Prop 8 advanced. These complaints don’t typically specify which complaint they think J. Walker should have paid more attention to which is another omission that makes their complaints hard to engage. More significantly, probably the arguments J. Walker ignored were these irrelevant and unnecessary “justifications” and “definitions” of marriage.<br /><br />What marriage is “for” is off-topic. Justifying the ban on same-sex marriage is the central, unanswerable question.<br /><br />sean s.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-54694264011710738142010-08-13T05:42:16.239-05:002010-08-13T05:42:16.239-05:00TosaVoter;
The causal argument you mentioned (at ...TosaVoter;<br /><br />The causal argument you mentioned (at 5:18 pm) is a legal non-starter. It would fall on the twin horns of being both over-inclusive and under-inclusive. Prohibiting same-sex marriage to prevent “open marriages” would prohibit same-sex “closed” marriages (making it over-inclusive) and yet allow “open” different-sex marriages (making it under-inclusive).<br /><br />sean s.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-9813591097845646722010-08-12T21:43:34.622-05:002010-08-12T21:43:34.622-05:00Looks like the Professor is walking away from this...Looks like the Professor is walking away from this debate. It will be quite a challenge to him to refute all of the arguments made here by folks who see the winds of change which are blowing through our society.<br /><br />A few years ago I would have caucused with those who oppose extending this civil right to gay people. Happily married for 30+ years, the parent of three heterosexual children, and without a gay relative on my side or my wife's side to the best of our knowledge, we didn't think much about the issue.<br /><br />It is obvious, however, that the younger generation is going to change the law. Yes, we have a Constitutional amendment in Wisconsin, but it won't stand up for more than a decade, if that. The change is coming. It doesn't threaten my marriage or those of my children, and it will promote the same stability in relationships for gay people that marriage does for us "straights."Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-33729191371411545202010-08-12T10:51:06.510-05:002010-08-12T10:51:06.510-05:00Anon 8:12:
Appeal to popularity logical fallacy. ...Anon 8:12:<br /><br />Appeal to popularity logical fallacy. Also, please explain what the federalist papers said about the value of a judiciary protecting against tyranny of the majority by overturning bad laws.<br /><br />Hint: it was positive.AnotherTosaVoterhttps://www.blogger.com/profile/16530969681712342705noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-83609868509647873042010-08-12T10:49:08.096-05:002010-08-12T10:49:08.096-05:00Anon 10:07 - if marriage is all about procreation,...Anon 10:07 - if marriage is all about procreation, why are Senior Citizens permitted to marry?<br /><br />Logic says if gays should not marry because they cannot procreate, we must also prohibit Seniors on the same grounds.<br /><br />So I assume you've called your legislators demanding that marriage be denied when the woman is past menopause?AnotherTosaVoterhttps://www.blogger.com/profile/16530969681712342705noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-29734724005165809402010-08-12T08:21:26.490-05:002010-08-12T08:21:26.490-05:00"Vast majority"?
Not so fast."Vast majority"? <br /><br /><a href="http://www.fivethirtyeight.com/2010/08/opinion-on-same-sex-marriage-appears-to.html" rel="nofollow">Not so fast.</a>Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-48806057853888787782010-08-12T08:12:58.720-05:002010-08-12T08:12:58.720-05:00Referring to the vast majority of Americans as &qu...Referring to the vast majority of Americans as "bigots" isn't a very good way to persuade them to your point of view. But, then again, if you've got a judge like Vaughn Walker on your side, you can just impose your point of view on them.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-90175175694479292832010-08-12T08:00:16.262-05:002010-08-12T08:00:16.262-05:00it is a fact that society... can use as a rational...<i>it is a fact that society... can use as a rational starting point for the legal definition of "marriage," </i><br /><br />No doubt. And since it is a starting point that manifestly tolerates indefinitely large numbers of marriages that are non-procreative both by antecedently known choice and by antecedently known biological necessity, choosing to deny the right only to those whose antecedently known non-procreativity is a function of their same-sex partnership is unmotivated, save by bigotry.Clutchnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-83903935188533403142010-08-11T22:07:15.957-05:002010-08-11T22:07:15.957-05:00Procreation can only occur between one man and one...Procreation can only occur between one man and one woman. That stubborn fact doesn't mean that homosexuals can't have loving relationships, or that pedophile priests are okay, or that Charlie Sykes was a good husband, or that divorce should be outlawed, or that people who are infertile shouldn't be allowed to marry, etc. But it is a fact that society (e.g., millions of voters across the country and the overwhelming majority of their elected state and federal representatives) can use as a rational starting point for the legal definition of "marriage," as it has done throughout the history of this country, if not Western civilization itself.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-14342293961922495392010-08-11T21:03:04.158-05:002010-08-11T21:03:04.158-05:00Douthat breezily includes, and Esenberg blithely e...Douthat breezily includes, and Esenberg blithely endorses, the idea that to allow same-sex marriage is to give up on the idea of "lifelong heterosexual monogamy".<br /><br />That would be three claims about allegedly given-up-upon ideas, laid at the door of same-sex marriage: that marriage is lifelong, that it is heterosexual, and that it is monogamous.<br /><br />The second claim has all the confidence to which a vacuous tautology is entitled. The first and third are so gloriously, incandescently fabricated that it is hard to see a good-faith attempt at engaging the issue, either personally or communicatively, in their display.<br /><br />If Ross Douthat or Rick Esenberg thinks that same-sex marriage is worth singling out as significantly linked to some alleged socio-legal giving-up of the ideas that marriage is <i>permanent</i> and <i>monogamous</i>, then it's hard to believe they are rational agents with respect to this issue. <br /><br />Divorce and extra-marital affairs are not artifacts of same-sex marriage. Slipping the blame for them onto gay people through a casual noun phrase is shameful. It'll play well with some crowds, of course -- no rationale is too paper-thin to act as a shield against well-founded accusations of sheer brute bigotry. But when you roll in that stuff, the smell will not wash off.Clutchnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-74476498292106443592010-08-11T19:59:19.007-05:002010-08-11T19:59:19.007-05:00What I think I find weakest about the "protec...What I think I find weakest about the "protect marriage" crowd is that they feel they get to define marriage for the rest of us. They argue that marriage should create solid sexual, emotional, and financial relationships, preferably involving children; and that (falsely) it's always been like that. Hardly. For most of human history marriage was about property. Women were sold off by fathers to have lots of children to propagate the family, and in special cases to cement political alliances or gain power over territory. Roman men could kill their wives or children with no fear of punishment...Dad would apparently argue this should never have changed. <br /><br />They also ignore that marriage is for some people about love, for some about money, or status, or loneliness, or desire for children. Some are solid, but in many (perhaps a majority) they create dysfunctional pairings that never should have been brought together. Ask Rick and his first wife, or Charlie Sykes and his first two wives, or Rush Limbaugh and his first three wives.<br /><br />The other part I don't get, and Sean mentions it, is this fretting over relationships between heterosexuals. Gays aren't heterosexuals. They can't be held responsible for the behavior of heterosexuals. Forcing them through social convention to marry the opposite sex is, and this ought to be common sense, highly unlikely to create a stable marriage.<br /><br />I have two kids. This whole argument is as if I have two of the same toy. I have let one kid play with it, but he often doesn't play with it very well. The other kid wants to play with the other toy, but I refuse to let him because the other boy won't play with it well. Does that make any sense? No Jimmy, I'm sorry, you cannot have the Thomas engine because your brother is throwing his. Allowing you to play with one would make him play with it even worse.<br /><br />Um, what?AnotherTosaVoterhttps://www.blogger.com/profile/16530969681712342705noreply@blogger.comtag:blogger.com,1999:blog-20692053.post-8715944251709190172010-08-11T19:40:16.536-05:002010-08-11T19:40:16.536-05:00We are one of the 18000 married before prop8 since...We are one of the 18000 married before prop8 since<br />Our marriage two of our family members got divorced<br />Woops I forgot the 22 years we lived together but were unable to get married posed no threat to marriage but since then wowAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-90421711799424925852010-08-11T19:38:48.220-05:002010-08-11T19:38:48.220-05:00It goes something like this: gays don't value ...<i>It goes something like this: gays don't value monogamy the way heterosexuals do (or, ought to).... </i><br /><br />This despite the fact that most same-sex marriages are between women, who are more likely than hetero couples to remain monogamous...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-71430611451856550222010-08-11T18:15:18.786-05:002010-08-11T18:15:18.786-05:00Should have also noted that Chuckles was hanging o...Should have also noted that Chuckles was hanging out with "Liz Woodhouse" instead of his second wife...Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-20692053.post-64603371226593399752010-08-11T18:14:40.522-05:002010-08-11T18:14:40.522-05:00Great points, TosaVoter.
Perhaps Charlie Sykes&...Great points, TosaVoter. <br /><br />Perhaps Charlie Sykes' second marriage was an "open marriage." Remember that Chuckles was shooting fireworks off on the beach in Shorewood while the Judge was at home taking care of the boys.Anonymousnoreply@blogger.com