Posted on 06/01/2006 8:28:01 AM PDT by Sunsong
Today the Cato Institute is publishing a paper I've written on why a federal amendment banning gay marriage is a bad idea, even if you oppose gay marriage. Of course, if you think recognizing same-sex marriages is a good idea, that's a strong reason by itself to oppose an amendment banning them. This paper is written for conservatives and moderates who either oppose or are unsure about same-sex marriage. Here's the executive summary:
Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states . . . .
A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.
There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.
Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.
Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.
Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.
The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument. You can read the whole thing here. While there is a reasonable (though ultimately unpersuasive) argument to be made against gay marriage as a policy matter, the case for a constitutional amendment is very weak. And it is weak for good conservative reasons.
I'll be in Washington on Monday speaking to Cato and the Center for American Progress, as well as to congressional staff, about the proposed amendment. When the schedule is available publicly, I may update this post to let you know more.
Who cares about the UN?
The author has not considered "arguments and evidence" to the fact that there is no such thing as "gay marriage."
Why should opponents of gay marriage want "public policy to remain flexible enough to adjust over time?"
Society cannot make a determination of who is protected by the Constitution and who isn't. The right to privacy exists period. Numerous cases have been thrown out of court because of the right to privacy. You cannot go into a home even with a warrant and look for some activity or evidence not in the probable cause warrant. Only if that illegal activity was found through a legal search would it be admissible. So unfortunately for you, the 4th Amendment protects everyone.
Oops. No. The citizens of the State of Texas outvoted you and said it doesn't. Sorry.
And where does it stand today?
Huh? Look, either an adult has a right to privacy to do drugs behind closed doors or they don't. What is it? Answer the question without weaseling. It's a straightfoweard question -- give me a straightforward answer.
I'm not sure you would understand a straightforward answer if it smacked you in the head. But I'll try. All activities in a home are part of a right to privacy. Illegal acts are still illegal, but the perpetrators have the protection of the home, until probable cause exists to go in. Then and only then, can police seize persons and evidence as part of the warrant. They cannot go looking for other "violations" of the law not a part of the warrant, but can in most jurisdictions use that evidence if found during the legal search for the warranted evidence. Is that clear enough for you?
As I said before, if it was illegal to be a homosexual, then you'd have a point. The law does not prohibit homosexuality (be still, my heart). The law prohibits a certain type of immoral behavior.
As far as I know, there's no such laws anymore. If there were and they were enforced only against homosexuals, they would be unconstitutional for several reasons.
Once again, I suggest you learn a bit about the Constitution, rights, privileges, freedoms, activities, etc. Concentrate on the meaning of rights. BTW, have you devised that new law yet?
Principle -as in fostering familial procreation? How about precedence...
You choose to conflate what activities the state can prohibit versus what activities the state chooses to recognize, accommodate and reward assuming they both are necessarily the same -balderdash!
Anyone can live together and play house in whatever combination they choose; however, society does not have to reward or recognize ALL arrangements REGARDLESS as a consequence of privacy some arrangements can not be prohibited and REGARDLESS activist judges who would impose some socialist village concept of family upon society...
Regardless, debating any supposed homosexually premised anything that legally can not even legitimately begin without a standing, the principle comprising the possibility of and the societal benefit of procreation was and has always been the rational basis premising recognition and privilege accorded marriage by society as enacted by legislation.
Any incidental exceptions cited do not negate the rational basis (the principle), they test it and in doing so clearly contrast against and specifically identify the basis some attempt to deny as one very much existing and relevant e.g. Griswold v. Connecticut, where it was held premised upon a right to privacy and as such decided that individuals have the right NOT to procreate via use of contraceptives...
One can clearly see that with Griswold it was the exception that demonstrated clearly the rule, the principle the rational basis of procreation exists!
Regardless a legislature has not chosen to handle exceptions to the basis, e.g. those that choose to contracept, exceptionally by incorporating more rules or by changing totally the basis or doing away with ANY marital accommodation -that is their prerogative and not the courts.
Yes, as evidenced in Griswold v. Connecticut, there is no supposed heterosexual right to be accommodated and rewarded by society for entering into non-procreative marriage -such marriages are exceptions incidental to the basis of procreation with such incidence being premised in the right to privacy (just as abortion is).
One can conflate the right to privacy (which prohibits the State from enforcing procreation) with the privilege accorded marriage (rationally based in procreation as provided for legislatively by the State); HOWEVER, doing so in the case of homosexual couplings is simply constructing an illegitimate argument to support an illegitimate arrangement that society recognizes as procreatively devoid and as such decided long ago merits no accommodation or privilege...
Yes, anyone can procreate -even homosexuals; HOWEVER, bringing a child into a procreatively devoid relationship does not a marriage make AS a supposed homosexual marriage is factually a procreative dead end and as such one NEVER possibly benefiting society with children. Children in such a case are incidental at best and not a result of any marital construct meriting reward or privilege"
Again, as it applies in the case of homosexuals it is publicly known, factually accepted, and always true that a supposed homosexual marriage is a procreative dead and as such one NEVER possibly benefiting society with children. --ALL THIS, unlike the already allowed exceptions which are allowed and or necessitated ALL premised upon a privacy right negating any legislature from enforcing procreation upon a potentially procreative couple.
In essence, homosexuals do not get a "free pass" under the privacy right enunciated in Griswold v. Connecticut BECAUSE homosexuals objectively can not possibly ever procreate homosexually...
In summary, the principle underlying marital accommodation and reward; the rational basis of procreation, is not set aside by irrational homosexual exuberance cloaked in privacy rights...
Same arguments against homosexual sodomy as against bestiality. Plus, your perverts posing as patriots are engaged in an activity that is a primary vector for the transmission of various horrific deseases.
You actually needed that explained to you?
Historical facts are lost on such hysterics.
As I said before, if it was illegal to be a homosexual, then you'd have a point. The law does not prohibit homosexuality (be still, my heart). The law prohibits a certain type of immoral behavior.
MAC:
As far as I know, there's no such laws anymore. If there were and they were enforced only against homosexuals, they would be unconstitutional for several reasons. Once again, I suggest you learn a bit about the Constitution, rights, privileges, freedoms, activities, etc. Concentrate on the meaning of rights.
Well said Mac.
As we see paulsen has boldly shown us where his heart lies.. A law to 'prohibit homos' gets him all excited. Very telling..
Laws against bestiality generally recognize that an animal cannot be a consenting adult. No matter what you personally thing of homosexual behavior morally, if it involves consenting adults there is a substantial distinction there from bestiality.
Plus, your perverts posing as patriots are engaged in an activity that is a primary vector for the transmission of various horrific deseases.
I agree but then all unprotected sex no matter what the gender or genders is in the same category. But if that's the case, I'm sure that you would then support those efforts of gays and lesbians to engage in monogamous relationships and use protections. Oh, as for the health dangers, including AIDS, Syphilus, Chlamidia, Gonorrhea, male homosexuals were the recipient of less than 1.5 percent according to statistics.
As for the morality of male to male sexual relations, since most heterosexuals engage in exactily the same acts, should those be addressed also? What about lesbians? How should the laws address them?
You actually needed that explained to you?
Yeah, I'm looking to all the experts here to educate me. I do appreciate you taking the time.
Says who?
all unprotected sex no matter what the gender or genders is in the same category.
Source please.
Amen.
"In November, 2003, the CDC stated that HIV infection
rates had risen in 29 states. There are an estimated
40,000 new HIV infections yearly with 70%
of these being among men. Of those men who are
infected, 60% are infected through homosexual
sex; 25% through IV drug abuse; and 15% through
heterosexual sex."
http://www.traditionalvalues.org/pdf_files/statistics_on_homosexual_lifestyle.pdf
Face it, there is no principle that a State can prohibit marriage of any type.
No 'power to prohibit' has ever been delegated to any level of government in the USA. -- Reasonably regulate, yes. -- Prohibit, no.
Principle -as in fostering familial procreation? How about precedence...
No, -- constiutional principle on prohibitions, as I argued above.
I have no argument against 'precedence fostering familial procreation'.
You choose to conflate what activities the state can prohibit versus what activities the state chooses to recognize, accommodate and reward assuming they both are necessarily the same -balderdash!
That sentence is "balderdash" on your part. I've "conflated" nothing.
Anyone can live together and play house in whatever combination they choose;
Yep, thats part of my point.
however, society does not have to reward or recognize ALL arrangements REGARDLESS as a consequence of privacy
I never said it did..
some arrangements can not be prohibited and REGARDLESS activist judges who would impose some socialist village concept of family upon society...
??? -- That sounds like Balderdash [gibberish] to me.
Regardless, debating any supposed homosexually premised anything that legally can not even legitimately begin without a standing, the principle comprising the possibility of and the societal benefit of procreation was and has always been the rational basis premising recognition and privilege accorded marriage by society as enacted by legislation. Any incidental exceptions cited do not negate the rational basis (the principle), they test it and in doing so clearly contrast against and specifically identify the basis some attempt to deny as one very much existing and relevant e.g. Griswold v. Connecticut, where it was held premised upon a right to privacy and as such decided that individuals have the right NOT to procreate via use of contraceptives... One can clearly see that with Griswold it was the exception that demonstrated clearly the rule, the principle the rational basis of procreation exists! Regardless a legislature has not chosen to handle exceptions to the basis, e.g. those that choose to contracept, exceptionally by incorporating more rules or by changing totally the basis or doing away with ANY marital accommodation -that is their prerogative and not the courts. Yes, as evidenced in Griswold v. Connecticut, there is no supposed heterosexual right to be accommodated and rewarded by society for entering into non-procreative marriage -such marriages are exceptions incidental to the basis of procreation with such incidence being premised in the right to privacy (just as abortion is). One can conflate the right to privacy (which prohibits the State from enforcing procreation) with the privilege accorded marriage (rationally based in procreation as provided for legislatively by the State); HOWEVER, doing so in the case of homosexual couplings is simply constructing an illegitimate argument to support an illegitimate arrangement that society recognizes as procreatively devoid and as such decided long ago merits no accommodation or privilege... Yes, anyone can procreate -even homosexuals; HOWEVER, bringing a child into a procreatively devoid relationship does not a marriage make AS a supposed homosexual marriage is factually a procreative dead end and as such one NEVER possibly benefiting society with children. Children in such a case are incidental at best and not a result of any marital construct meriting reward or privilege" Again, as it applies in the case of homosexuals it is publicly known, factually accepted, and always true that a supposed homosexual marriage is a procreative dead and as such one NEVER possibly benefiting society with children. --ALL THIS, unlike the already allowed exceptions which are allowed and or necessitated ALL premised upon a privacy right negating any legislature from enforcing procreation upon a potentially procreative couple.
That's quite the little essay. What it has to do with my post above is anybodies guess.
In essence, homosexuals do not get a "free pass" under the privacy right enunciated in Griswold v. Connecticut BECAUSE homosexuals objectively can not possibly ever procreate homosexually...
Again, I've never suggested queers get a "free pass" on anything. You're arguing points not at issue.
In summary, the principle underlying marital accommodation and reward; the rational basis of procreation, is not set aside by irrational homosexual exuberance cloaked in privacy rights...
Nice rant, but it fails to rebut anything I've said on this thread.
Then you agree with everything I posted and in essence you are not arguing in support of homosexual marriage. SO, just what are you arguing?
Prohibit in the sense of "not recognize". And yes, the state can choose not to recognize marriage, homosexual or heterosexual.
Then you agree with everything I posted
Dream on that what you posted addressed anything I posted.
and in essence you are not arguing in support of homosexual marriage.
You got it kid! -- I'm not..
SO, just what are you arguing?
Read much? Here's what I argued:
If the question was, "can the state ban marriage", and every state prohibited marriage, -- would you two be content with the fact that constitutional principles were followed?
Face it, there is no principle that a State can prohibit marriage of any type.
No 'power to prohibit' has ever been delegated to any level of government in the USA. -- Reasonably regulate, yes. -- Prohibit, no.
Do you believe an animal has a free will? Do you believe they have the intelligence to create a legal consent?
Source please.
Several sources refer to the various diseases tranmitted sexually. The Center for Disease Control's statistics show that last year the following cases were diagnosed:
Syphilis...........33,401
Chlamydia......929,462
Gonorreha......330,132
AIDS................42,514
Of these AIDS is the predominate one for male homosexuals who represented 45% of the cases. In the same year, approximately 15,000 deaths from AIDS was recorded, meaning that about 7,000 were homosexual males. Since there are approximately 4.3 million homosexuals in the country and 7,000 deaths, we would be creating a law that covered 4.3 million people to prevent activities in which one tenth of one percent died. Statistics provided by Avert and CDC.
BTW, since you are concerned about the deaths from AIDS, do you approve of gays using protection and engaging in monogamous relationships?
I was told long ago to not even try to explain morality to someone who doesn't want to listen. If you can't see how homosexual behavior is immoral, debasing and destructive to our society, then I'm not the one to explain it to you.
"You have done no more than single out homosexual males while ignoring homosexual females and heterosexuals for doing exactly the same thing."
Quit acting like a child. What's your next question -- why is sex with a 17-year-old legal but not one who is 16 1/2? Why is 55MPH legal but not 56MPH? Huh? Huh? Huh??
Certain behaviors are not acceptable to our society. Homosexual sodomy is one. You may get some court to accept it, but that's a hollow victory and you know it.
Thanks for updating those. I was apparently using out of date numbers. I used 42,514 cases with 45% being male homosexuals. Your actual numbers show that 35% are male homosexuals. That does seem to make my point even more that in the big picture we are not addressing the major causes of the problem, but simply one.
"Can you make a straightforward rebuttal, paulsen? Two bits you can't "without weaseling"."
Sure. If what you say is true, then why isn't it legal? Where's the courts? Where's the challenges? Where's the decisions?
Certainly you can find one challenge? One lower court decision? One court opinion that says that the U.S. Constitution's right of privacy protects the right to do drugs behind closed doors and to gamble behind closed doors?
You can't. You're blowing smoke. Go away and don't come back without the cites -- otherwise you're wasting my time..
Well, the principle you support and argue for does not exist -as such, you battle with windmills and win hands down.
You conflate the ability of people to live together and engage in sexual activity with the institution of marriage recognized and accommodated by society...
The state can prohibit some people living together and engaging in sexual activity e.g. children regardless the state can not prohibit adults consentually living together and engaging in sexual activity...
HOWEVER, the state does not have to reward those who choose to live together and engage in sexual activity UNLESS they meet certain requirements -these requirements comprise "marriage"...
A pig with lipstick on is still a pig...
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