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Cleaning Up the Nation
Austin Bay:
If Air America were a conservative radio network its corrupt funding trail and cynical abuse of a poverty program would be front page news at the NY Times and full-time mega-scandal at
Rank Materialism
Freedom. I am now the proud new owner of a Gateway 6020GZ laptop, perfect for students and others with limited means. I can now go into a Starbucks or a Barnes & Noble and look like I'm doing some
Fallujah Fonda
Uh-oh. From the Telegraph comes this exciting news:
Jane Fonda is returning to anti-war activism and embarking on a cross-country tour to call for an end to US military operations in Iraq.
Acros
John Pilger: Partner in Terrorism
In an outrageous piece of terrorist propaganda appearing on the cover of today's New Statesman, John Pilger puts the blame for the 7/7 London attacks not on the terrorists, but rather on Tony Blair:
Separate But Equal
Steven Den Beste has a post up explaining that failure to legally recognize gay marriage is a subjective inequality in the law but not an objective inequality in the law. This is in the sense that a law against sleeping under bridges is objectively equal since all are prevented from doing so, but subjectively unequal since the very poor are much more likely to want to do so, so the law affects their actions disproportionately. Yet the law is objectively equal, which is what we should be aiming for.
Applying this to same-sex marriage, he writes:
...Gary Gay-and-Proud would be forbidden to marry Quincy Queer. Harry Hetero would also be forbidden to marry Quincy Queer. However, both Gary and Harry would be permitted to marry Flora Feminine. Objectively, the law treats Gary and Harry equally.
So the law is objectively equal since both gay and straight men are forbidden to marry another man and both are free to marry a woman. The law is subjectively unfair because only the gay guy would want to marry a man, and the restrictions he perceives on his freedom of action are much greater than the straight guy's. That seems to follow.
But. Let's take Gary Gay-and-Proud and Brenda Beard. One of them is free to marry Quincy Queer- the other is not. Our current set of laws is actually not objectively equal since one person is forbidden from doing the exact same thing that the other may legally do. Brenda is legally permitted to marry Quincy. Gary is not. This is objectively unequal.
The claim that opposite-sex-only marriage laws are objectively equal rests on the law recognizing two sexes and that each has separate but equal opportunities in marriage- namely that males have the opportunity to marry females (but females don't) and that females may marry males (but males may not). Note that the marriage options for the individual members of each sex are entirely separate from the marriage options available to the other sex. They are merely deemed equal.
Obviously I use the term separate but equal knowingly. I don't see too much difference between saying that both whites and blacks have the right to attend schools, whites at white schools, and blacks at black schools, and saying that both men and women have the right to marry, men with women, and women with men. In both cases, the law is trying to regulate the make-up of institutions and with whom we may participate.
A law which stated that a marriage must be composed of two people of different sexes would be equivalent to a law which stated that a school must be composed of people within one race. So not mentioning specific sexes or races doesn't let you off the hook. A law which mentions the fact of sex or race will be an objectively unequal law just as laws which mention specific sexes or races would be.
To sum up, opposite-sex-only marriage laws are only objectively equal if you pretend that the mutually exclusive opportunities available to the two sexes is objectively equal. But separate is not equal.
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"opposite-sex-only marriage laws are only objectively equal if you pretend that the mutually exclusive opportunities available to the two sexes is objectively equal. But separate is not equal."
A perfectly respectable position, but please make sure you're fully aware of the logical consequences of it. It means that denying a boy the opportunity to play on the public school's girls' basketball team, or a girl to use the public school's boys' bathroom, is "not equal" even if there is a separate boys' basketball team and a separate girls' bathroom. After all, "separate is not equal".
I don't find those inherently ridiculous conclusions; this is not a reductio ad absurdum. This is just making sure you understand the consequences of the argument you're making. We have a lot of separate-but-equal for the sexes in the United States, and it goes a lot further than marriage.
WL: I understand what you're saying and I've considered it. Not just as far as my post goes but more generally.
Women can be found closer and closer to combat roles in our military. They've attained higher and higher offices in the government (and go Condi! btw). More spuriously, our culture has survived Aliens, Starship Troopers, and Ally McBeal, though these are more in the realm of depiction than reality. But there are many women firefighters and police officers.
In this light, segregated bathrooms and sports teams seem a bit quaint. I'm not arguing against them. Integrated bathrooms would make me feel uncomfortable (at first anyway). But what's the relationship between these accommodations and the institution of marriage? I'm not quite sure.
There's no particular relationship to the institution of marriage, any more than segregated schools had any particular relationship to interracial marriage laws. The history of constitutional law is full of principles enunciated for a specific case that wound up transforming completely unrelated areas.
If we accept "separate is not equal in regards to sex" as a legal principle, then any case of "but we're going to have separation of the sexes" is the same case as "but we're going to have inequality of the sexes." The Fourteenth Amendment intervenes at this point and not just allows same-sex marriage, but bars any other legal or government separation on grounds of sex. Much like separate-is-not-equal-for-race went from schools to interracial marriage laws.
And single-sex schools are allowed. I doubt that we're going to get a separate is unequal for sexes ruling out of the SC any time soon. (And it's probably just as well.)
BTW, I'm for gay marriage, but believe it's a matter for the states to decide. I posted this not because I think it's a route the SC should take, but because Steven's "objectively equal" argument has a whole in it.
Your claim that a "law which stated that a marriage must be composed of two people of different sexes would be equivalent to a law which stated that a school must be composed of people within one race."
Maybe that's true in some irrelvant way. But with regard to question at hand (i.e., gay marriage), one's race is not analogous to one's sex and marriage is not analogous to school. A person's race does not have any natural impact on how that person "fits" into any school. However, a person's sex does have a natural impact on how the person "fits" into a marriage.
Exactly how, you might ask? Well, as the libs like to say (and for once they'd be right), "Think about the children." All homosexual unions are incapable of producing children naturally, and the procreation and rearing of children is the only reason that marriage as an institution is deserving any special social or legal recognition that is not accorded to other "unions" of two persons. Now you can make the argument more complicated by pointing to artificial insemination, cloning, and barren hetero couples, etc. And if you really want to slide down that slippery slope, it will be a long argument, at the end of which you'd still be wrong. (You can read more about all that in a post on my blog.)
Aside from the "natural" arguments, our constitutional jurisprudence also recognizes that race and sex are not in the same category. You are actually onto something when you point out that the prohibition of homosexual marriage is more properly understood as discrimination based on sex rather than discrimination based on sexual orientation. But guess what: The ERA was not adopted. Our constitution permits rational discrimination on the basis of sex. The prohibition of homosexual marriage is rational.
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Brian O'Connell.





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