The caselaw is clear. The Court recognizes a fundamental right “to marry.” It recognizes that this act is fundamentally protected by our Constitution. There's really no way around that. Even more, case law repeatedly refers to the ACT of marrying, not the institution of marriage when explaining this right. . . .the Court refers to the act . . . “to marry.”

Regarding gay marriage, the Court will have to ask whether the act of marrying someone of the same sex can justifiably be treated any differently than the act of marrying someone of the opposite sex.

To the best of my knowledge, the U.S. Supreme Court has not defined the act of marrying. I can't even think of a case where the U.S. Supreme Court specifically defines marriage as being between a man and a woman. As far as I know, that case does not exist.

Lawrence is important because it addresses the ongoing, generic question of whether a State may criminalize/discriminate against a gay act while not criminalizing/discriminating against heterosexual acts.

And the Court in Lawrence most definitely talked of gay acts . . .

You said the following:
“What the court found was that the INDIVIDUAL can choose to engage in sodomy, without it being criminalized.”

This answers a legal question that was not asked by the Court.

From the case . . .

Legal question:
“The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.”

“two persons of the same sex” . . . homosexual acts. That's where the Court began . . . .that's how the Court framed the issue.

You mention the following:
“Harm does not need to be shown for the state to find no compelling interest to extend the benefits of the institution of marriage to individuals who are not giving up individual liberties in the interest of the state.”

You define said liberties as “promiscuity” and “property.” These are not specific to sexual orientation/preference. Gay people can own and lose property as well. Gay people can be promiscuous and monogamous as well.

And your argument is based on the “institution of marriage” whereas the Courts address the liberty to marry.

This is far from a strawman argument. The government needs a reason to act. It needs a reason to restrict. One such reason is harm to other people and institutions. It's valid question. Indeed it is crucial to the anti-gay marriage side of the argument.

Every law has a reason behind it. The law can make distinctions among different groups and conduct. But it must have a reason to do so.

Find a law and you'll surely find a reason for that law. The Government cannot act without reason. The government can't say . . . “we deny people under 5 feet the liberty to where red ties” without giving a valid reason. No matter how grand or trivial, the government needs a reason. It might be a poor reason, but there must be a reason nonetheless.

Again, our laws and Constitution are written in negative speech. The law doesn't say you have a right to free speech. No, the law says:

“Congress shall make no law . . . abridging the freedom of speech . . . “

That's how our laws our written. The government doesn't grant liberties so much as it restricts how those pre-existing liberties are applied. And when it restricts, the government must have a reason. The government can take away your right to free speech . . . but it must have a reason to create an exception. In part, such exceptions are understood by looking at past caselaw to anticipate future Court decision. That's all we're doing with this issue of gay marriage.

The anti-gay marriage argument isn't that the State may ban without cause, but that it may ban for reasons . . . x, y and z. And it's up to the courts to decide whether or not those reasons are sufficient. Some courts say yes, others say no . . . and it'll all end up on the lap of the U.S. Supreme Court. . . .a Court with a swing of one or two votes (as is the case with many other controversial issues).

Do you have any caselaw whereby the U.S. Supreme Court specifically defines the liberty to marry? Do you have any caselaw that defines how and between whom that act should occur? I can't think of any.

But the government needs a reason. It's essential to the contract it has with it's citizens. It's part of the glue that keeps this crazy experiment together.

Indeed, it's essential to that all-powerful universal question . . . The day we can't ask “why?” is the day we cease being a democracy.

Due Process is just a fancy way of saying . . . a reason . . . a system . . . a rule by which the government is bound to obey before it might take away a right (rights that are granted through negative speech in our U.S. Constitution). . . an explaination of “why?”

And said rights have been written in the broadest of terms so that they might maintain their relevance in an evolving society. They invite . . . even demand interpretation. There would be no use for the Judicial Branch if this were not so.

Your argument appears circuitous. First you say that there are 2 separate arguments, then you frame the question “going forward” as being about hetero vs. homo (conduct) while suppositioning that there is a fundamental right to marriage for INDIVIDUALS in case law. That is conflating the argument. When you use terms about hetero vs. homo as the framing of the question you are talking about sexual conduct. When you throw in hetero vs. homo couple you are no longer talking about the rights of individual as well. Your argument is either based on a flawed premise or your use of terms is not as we have agreed.

.When you frame the question as being about homo vs. hetero couples that is an identity argument. Yet you say you are not conflating the issue. Hetero and homo are not groups of people the terms are simply descriptors of sexual conduct. Nothing else is encompassed in the term. It is a behavioral term. Which brings me back once again to the point that sexual conduct can be discriminated against criminally and prohibited under the law.

If for the sake of argument we agree that marriage is a fundamental right, then the Constitutionality is based on the individual not the idea that these individuals based on their behavior merit this fundamental right.

The argument gets most convulted when you describe sexual conduct as the defining ACT of marriage while simultaneous denying that sexual conduct is being used as an identity. i.e. gay vs. straignt marriage

In short, unless gay vs. straight is an identity there can be no argument in terms of an ACT of marriage. As the argument rests on the ACT of sexual conduct not the individual, as the fundamental right.

With regards to how you disagree with an earlier assertion that marriage is granted to all individuals. You took issue with marriage being legal when it is opposite gender/ The statement, while you may disagree with it, tells us that ALL individuals in this society can marry. What your argument seeks to do is circumscribe marriage to specific sexual conduct, while the constitutionally fundamental right (conceded for this argument) is based on the inherent indiividual rights not individual behavior.

While personal relationships as you describe in Lawrence may be granted liberty. Marriage is an institution, it is a legal entity, not a 'personal relationship under the law. It is primarily property and inheritance law, not a relationship. Society then has policy based on the property law. Personal relationship is not granted in the institution of marriage. Lawrence is based on the sexual conduct and the boundaries of the state, it is not about the institution of marriage. I see no corollary between personal relationship and the institution of marriage. Rather, this is the flawed premise many gay advocates promote as it leads to an emotional argument not based on facts.

You further assert that Lawrence was about sexual conduct independent of 'identity' and again that is because there is no such identity to recognize. Sodomy is not specific to a gender/ The court felt no need to make such a distinction. The court however did not , as you assert, find a fundamental right to sexual privacy. What the court found was that the INDIVIDUAL can choose to engage in sodomy, without it being criminalized.

The court is basically saying the INDIVIDUAL, based on constitutional 'due process' can CHOOSE to engage in sexual conduct. However, there is no ergo with regards to marriage. Lawrence does not implying anything about marriage or the insittuion of marriage. When you say the court took the ACT, independent of identity, … The law recognized that all individuals can engage in the specific act the law criminalized. The court recognized that sodomy is not specific to the same gender sex. In short, the court said the gender of your partner when it comes to sexual conduct is a choice. Nothing there about marriage.

You then go on to argue based on this::
“This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.”

Once again you frame the question as how does gay marriage harm the institution of marriage. I have consistently replied that is a strawman argument. Harm does not need to be shown for the state to find no compelling interest to extend the benefits of the institution of marriage to individuals who are not giving up individual liberties in the interest of the state.

Rather, homosexuals are seeking to sanction their indivdiual liberties with the institution of marriage. Marriage was not granted benefits as a insittuiton because it was to enhance individaul freedom, those benefits were granted because the individual was being denied individual pursuits by entering into the institution of marriage. The liberties given up were promiscuity and property, all of which benefitted the state. Ergo the state set forth policies to compensate the individual for the liberties they LOST by becoming married under the law.

Homosexuals can neither show a loss of individual liberty nor a benefit to the state that warrants the ACT of marriage. Especially as the ACT of marriage is granted to ALL individuals, homosexuals can show no INDIVIDUAL denial of marriage, they can only put forth an argument based on sexual conduct. Sexual conduct which they have the 'liberty to pursue' and which is an adult liberty they choose not to give up to comply with the vested interest of the STate for the interest of society and community and children.

Homosexual pursuit of marriage is the antithesis of the legal framework of marriage and the exhaltation of adult liberty …the very thing the state circumscribes when individuals enter into the matrimonial state.

Here

is another reply with actual idea/info — I put it at the top of the thread.

(posting it again bc the first attempt didn't quite work)

<a href=”
http://www.jackandjillpolitics.com/2008/11/my-2... another reply with actual idea/info — I put it at the top of the thread

What can we do to level the playing field? That is what I want to do. I want equality for all. I will stand with you and fight the same as I did for Obama.

What can I/we do? Where do we begin because I don't know. Educate me. A new JJP post regarding actionable steps on this matter would be appreciated.

Look at this, Val!

From our president-elect on his new site

Support for the LGBT Community

The Obama-Biden Plan

* Expand Hate Crimes Statutes: In 2004, crimes against LGBT Americans constituted the third-highest category of hate crime reported and made up more than 15 percent of such crimes. Barack Obama cosponsored legislation that would expand federal jurisdiction to include violent hate crimes perpetrated because of race, color, religion, national origin, sexual orientation, gender identity, or physical disability. As a state senator, Obama passed tough legislation that made hate crimes and conspiracy to commit them against the law.

* Fight Workplace Discrimination: Barack Obama supports the Employment Non-Discrimination Act, and believes that our anti-discrimination employment laws should be expanded to include sexual orientation and gender identity. While an increasing number of employers have extended benefits to their employees' domestic partners, discrimination based on sexual orientation in the workplace occurs with no federal legal remedy. Obama also sponsored legislation in the Illinois State Senate that would ban employment discrimination on the basis of sexual orientation.

* Support Full Civil Unions and Federal Rights for LGBT Couples: Barack Obama supports full civil unions that give same-sex couples legal rights and privileges equal to those of married couples. Obama also believes we need to repeal the Defense of Marriage Act and enact legislation that would ensure that the 1,100+ federal legal rights and benefits currently provided on the basis of marital status are extended to same-sex couples in civil unions and other legally-recognized unions. These rights and benefits include the right to assist a loved one in times of emergency, the right to equal health insurance and other employment benefits, and property rights.

* Oppose a Constitutional Ban on Same-Sex Marriage: Barack Obama voted against the Federal Marriage Amendment in 2006 which would have defined marriage as between a man and a woman and prevented judicial extension of marriage-like rights to same-sex or other unmarried couples. ….[snip]

* Expand Adoption Rights: Barack Obama believes that we must ensure adoption rights for all couples and individuals, regardless of their sexual orientation. He thinks that a child will benefit from a healthy and loving home, whether the parents are gay or not…..

(there's more re: AIDS and a snipped piece of Don't Ask Don't Tell, etc but this is the stuff most relevant to the discussion IMO)

As I watch the “Gay Rights” movement flail around and play often racist ego-dramas, I realize I have almost no faith in their vision or organizing ability.

On the other hand, I have witnessed the organizing wisdom and strategic brilliance of Barack Obama since I first started paying attention to his campaign.

So Val, who is at the front of this movement for civil unions and non-discrimination? From what I see, the one articulating this stance is — President-elect Obama.

If we are lucky, he will provide some sort of infrastructure for us to organize. It should be the movement's job … but Val, IMO they are pretty much useless on this goal.

Here's my thinking: President-elect Obama has amazing political skills related to the collective that is this nation. He does not use words lightly nor does he speak of doing without a sense that it can be done, with sufficient involvement.

In an interview with the Advocate in the spring (can't find the link right now) Pres-elect (then candidate) Obama told the interviewer that he is not the leader of the GLBT movement, the people in the movement have to be.

Val: IMO they, that movement, they are failing. And in the meantime, I have witnessed President-elect Obama succeeding — hugely — when so many thought he could not.

So while I hate to cast him as a leader for the LGBT movement — he's not — I think he could well be a leader for what is the actual practical approach. He has a feel for the pulse of this country that is .. uncanny, to me. he would not be suggesting this agenda if he didn't feel it as do-able.

The question to me them turns to how people who have energy for this can be part of getting this legislation passed. I got an email today from David Plouffe with a survey asking, among other things, what issues I was interested in volunteering for and how I want to be involved as volunteer/organizer as the movement moves forward.

Did you get one of those emails today? If so I would strongly encourage you to emphasize the energy you have for this work. If not … maybe I can get a blank survey form URL for you.

*music floats in*

*ding – that's a bell chiming*

Somewhere in the heavens an angel just got its HS diploma.

It could have been a college diploma, but you forgot to use punctuation (hint: period and comma MIA)

Re: your interest and having a new JJP post — maybe you should email this comment and suggestion to the JJP site owners …

I'm thinking about what you wrote and would be interested in seeing a bigger discussion.

I don't have any answers right now, but maybe discussion here on a broader scale could pull some useful practical something out into view.

That is — IF the discussion isn't hijacked by extremism from either side

(meaning no “marriage or bust” rigidity or other drama from that side OR any sort of disrespectful statements/arguments about gay people being wrong in any way – and I would have to add being wrong as parents of children to that after what I have seen)

I wonder if there could be a JJP post focused on what you are asking without getting derailed

Something where participants are trying to open up practical ideas and creativity and discussion.

Now as I watch the discussion unfold and reflect more on what I have seen, I am much more of the opinion that the core issue is a pathological relationship with sex itself, and that the gender of the sex partner isn't the issue as much as a horrific way of understanding and experiencing any sort of sex.

Of course I'm still learning as I go.

What can we do to level the playing field? That is what I want to do. I want equality for all. I will stand with you and fight the same as I did for Obama.

Equal rights for couples under civil unions. No discrimination for anyone under any circumstances and repeal DOMA.

What can I/we do? Where do we begin because I don't know. Educate me. A new JJP post regarding actionable steps on this matter would be appreciated.

Whiterosebuddy, you are writing as if everything I see is my imagination. Again you can try to frame it that way, since rhetoric is what you do and is not reality-grounded.

But it is true and not my imagination that you yourself publicly made an analogy that I quoted and will quote again:

Your first sexual encounter is no different from the first time you are offered drugs or liquor. You get to decide to engage in that conduct no matter what the gender of the individual is. The probability of that chance being equal is not the issue, the probability of what you choose to do is the issue. Everyone decides with equal chance whether to imbibe, inhale or fornicate. Conduct is always a choice.

and it is also true that your reply to me now included this statement:

It could have been your first taste of ice cream or your first slice of apple pie. The point was simply that when you try it you like it. It is PLEASURABLE not that as you choose to misconstrue it as some 'addictive/compulsive' behavior.

You may not understand how deeply horrific this experience and understanding of sex actually is in my eyes. You may not understand it because you feel it as normal and natural to comprehend and experience sex in this way.

To me, such a comprehension of sex is … an abomination. Apparently I am very judgemental about this particular thing, which I didn't know before I got into this discussion.

And to me the abomination has two layers to it. The addiction one that you are currently backing off of is one of the layers. I think you are backing off of it because I shed light on how ugly it was and publicly embarrassed you to the point where you are backing off of it. I think that the most accurate comparison for you is in truth drugs and alcohol and along those lines.

This is not the first time you have used that analogy, to my memory — and I continue to feel that as relevant even if you back off of it now that I have gotten into the implications.

BUT. Aside from that. I see another layer of this abomination that is — I realize — almost worse to me. In both your alcohol/drugs and your ice cream/pie/ metaphor, you are describing sex as an inanimate object, that an individual consumes for her or his pleasure. This is about what category sex is in in your eyes.

In your metaphor, there are two things: an individual, and some substance that the individual(s) are consuming for his/her pleasure. Those are the things that are in both your metaphors.

For me, sex is an a different category altogether. It is a form of interaction and communication between real beings. And this is true whether it is a one-time thing or part of a relationship over time, and whether it is negative or positive interaction/communication.

To me it is a form of interaction and communication between beings — NOT individual ego consuming a THING for its own pleasure as if there is no one else who is really involved, or as if the other being involved is only another disconnected individual consuming for him/her self.

WRB, I can't adequately express to you the horror I feel to think about people treating sex with other beings as if it is something for them to consume for their own individual selves.

I recognize that this is in fact the dominant culture approach to things. I recognize that the fundamentalist hard-core anti-gay whack-jobs are just basically promoting an understanding of sex that is part and parcel of the larger European/Christian cultural system.

I just .. I haven't really come in personal contact with someone who so clearly promotes this view before now. You can engage in wordplay all you want, but I now have a sense of how you understand (and experience?) sex and it is to me a horrifically bleak and ugly and outright horrifically damaging way to understand it.

(I have clearly been sheltered in my life so far in terms of personal interactions and in-depth discussions about these things.)

Good, bad or somewhere in between, I have always understood and experienced sex as one form of interaction/communication between beings and not some consumable object for the individual egos involved.

I still think you backed off the addictive substances metaphor because you saw the implications from my comment and realized that you had revealed something that made you look bad.

But only you know that for sure. The truth is that whatever you do or don't say about that here or elsewhere, reality is reality and somewhere inside yourself you will have that sinking feeling of covering up secrets if that is what you are doing. Words on a blog don't make reality go away.

But in addition to the addiction issues, the underlying foundational category of your metaphor — sex as consumable object for an individual — is itself incredibly horrifying to me.

It amazes me that here we are in this discussion and I am supposed to be one of the ones who is “deviant” in a bad way because I have sex with a woman, and yet I find your category for sex to be such an abomination that it feels to me like the stuff of nightmares.

I look around and realize with deep gut-clarity now: oh no, THIS is the society I live in? Where people are treating sex like a consumable object? Where the Christian fundamentalists who are all freaky-repressed about sex and the capitalists who openly advocate for the individual consumption of the sex-object (in ads for example) are all united in their understanding of what this actually is even if they diverge on what do do about or with it?

And you know what, I see now how all this obsession with what gender the people are is in a marriage or union or whatever, all this angst over the suppose “gay agenda” functions to cover up this deeper festering sore in this society: the dominant cultural sickness related to sex, sex as object for the individual's consumption.

Some would advocate restraint in the consumption, others do not, but you're all in the same horrific disconnected consumption framework nonetheless.

To me, THAT is sick in itself, and I see — finally I am getting this part of it — I see how all this other stuff about the gender of who you have sex with serves to keep that actual festering sore from real critical scrutiny.

I used examples that were indicative of choices people make when introduced to something intitally. It could have been your first taste of ice cream or your first slice of apple pie. The point was simply that when you try it you like it. It is PLEASURABLE not that as you choose to misconstrue it as some 'addictive/compulsive' behavior.

Geesh…you see demons and seek to demonize where there are none and no malintent.

Stop projecting your fears onto to others as them having some malcious intent to justify your own fears and insecurities.

Unbelievable what a cliff you went off on that.

Why does anyone think the ultimate put down of an opposing argument is to call them 'gay'?

It is twisted and warped psychology…also known as self-hate.

This comes across as disingenuous because it attacks the messenger not the topic. Because you may have a motivation or intent beyond a well reasoned argument does not mean that is universally so.

I enjoy polemics. You appear to want to find convenient labels and categories to impugn the messenger thus the message lacks credit. Your actions are similiar to the GOP who tried to kill Obama with his associations because they had no valid opposition in terms of policies. They therefore tried to impute motive and nefarious intent where there was none.

You are guilty of that here. Your response to truthseeker about me is the same as the nasty e mail campaign about Obama being a muslim. It is completely false and has no basis in fact and it's sole purpose is to discredit the messenger.

I think you may wish to ask why that is your need not try to impose your needs/motivates on others.

I am dealing with facts and data…you are seeking to attribute motivate where there is none.

In other words, there is nothing for you to be 'on to'. Either you can rebut the arugment with facts or you can't. But your intent to smear me with inference, innuendo and speculation is a poor substitute for a substantative analysis of the issue.

What speaks loudest to me is your inability to raise a cogent rational argument for the position you hold. And a far greater need to attack the messenger as some sort of justification for that shortcoming.

It is completely ineffective. Because I am on to the fact that you have nothing to support your position but emotions and inflammatory words in hopes of smearing the message as you can't refute the message.