"What's next, Bestiality?" revisited

[mister k]

Look, I'm all for friendships/relationships with non-humans, but I draw the line at sex.

Why? Why is it okay to mutilate the animal, cause it suffering or slaughter it, but sex is somehow taboo?

I believe that causing an animal suffering is generally not looked well on. Admittedly it is not as well legislated as it could be, because people make lotsa money out of having hyper efficient animal farms, but yeah. Basically, no, if its fine to effectively torture an animal, then it should be fine to have sex with it too. I actually think that most people who are against having sex with animals are against torturing them too, but in an abstract, not thought about sense, which means they still buy factory farmed meat.

The issue with the slippery slope argument is the notion of equivalence. The arguer has no argument they can think of to dissaude homosexuality which does not make them look bigoted. So they point at something that "everyone" agrees is wrong and make them equivalent. But if they were truly equivalent, then they'd be equally as bad, or equally as good. So if incest is truly the same as homosexual sex, then morally we should either be for both or against both. I actually do think theres not a great deal to distinguish between the two, other than obvious problems with power relationships in incestuous relationships and of course the problmes with the children who might result from the partnership (but we don't forbid people with genetic disorders to copulate). In the case of bestiality, a word I frequently mispell, there is a clear difference between homosexuals and bestality in the form of consent- only one of the party can consent. Clearly the slipperly slope argument just straight out fails here.

[BattleMoose]

Okay, but what has bestiality got to do with gay marriage?

A bunch of valid arguments have been listed here, regarding the legality of sex with animals, icky for sure, but should it be illegal? I also side on that marriage has to be consensual and that would exclude animals being involved, and innateness objects but that's just my opinion on that aspect. There is certainly room here for discussion, but can we please agree that this has absolutely nothing to do with gay marriage?

[Zamfir]

Okay, but what has bestiality got to do with gay marriage?

A bunch of valid arguments have been listed here, regarding the legality of sex with animals, icky for sure, but should it be illegal? I also side on that marriage has to be consensual and that would exclude animals being involved, and innateness objects but that's just my opinion on that aspect. There is certainly room here for discussion, but can we please agree that this has absolutely nothing to do with gay marriage?

It suely has something to do with it? Social goups have lots of subtle and not-so-subtle ways to turn people into appropriate producers of the next generation. Makes some sense even: if I want my kids to grow up in a world where my (and presumably their) values and views are strongly supported, then I might want other people who share those views to have good bunch of kids as well, and raise them accordingly. Strength in numbers really works.

So you get all kinds of rules and laws and taboos and weak or strong social pressures on people to start a typical as-it-should-be family. Where the ideal of a typical family differs enormously from culture to culture, but the pressures can be surprisingly similar. Girls shouldn't risk a child until they have a reliable partner. Get married and settle down, but don't marry the wrong outsiders, of the wrong religion or colour or part of town. Don't become openly gay. Don't admit to other sexual deviations that won't converge on a steady family with kids. And if you do the wrong things anyway, keep them secret while you are also raising some kids, or others might be tempted to follow. In my grandparents' youth, the local priest would visit families that had been without a new child for a while, to politely ask how the marriage bed was going. While the priests were keeping tabs on the amount of kids they needed to keep ahead of the protestants, and vice versa.

[thc]

What's your hypothesis? What causal process gave rise to the existence of these sexual taboos?

My hypothesis is that it's based on prejudice.

I mean, the fitness aspect is trivial, isn't it? If you mate with trees only, you'll not have many genetic offspring.

No it is not trivial due to kin selection. If you like mating with trees, maybe you're more likely to spend time taking care of your environment, which improves the chances of the people you're close with.

[Dark Avorian]

So it's the question of whether living as a dog is better or worse than not existing at all.

You are right that this is the correct question. I do indeed tend to think that existing as a non-human animal on this planet is currently worse than not existing (in the wild, in factory farms, probably as pets). Not because all individuals are necessarily worse off, but because the extremes of abuse and suffering are so bad that the happiness they may experience in the moderately good lives is mostly outweighed even if most of them don't suffer horribly. I may be wrong. Just ask yourself: If reincarnation was real and optional, how many non-abusive random dog lives would you have to be offered to accept an abusive one, over non-existence?

I don't know. Honestly, I think I'd take any number of abusive dog lives over non-existence. I have a great fear of the nothingness that is beyond, and would (at the moment) rather live with every moment filled with torture than never think, feel, perceive again.

This argument that non-existence is better than a bad existence has always struck me as a deeply troubling one. The problems that animals encounter on a day to day basis are not that much worse than those that a poor child in a developing country might face, and I would take deep offence at the idea that that child (even if we know it will never get out) would be better off never existing. There are many maimed, starving, crippled, blind, deaf, poor, thirsty, troubled, ill people out there who want to live as long as they can.

[Greyarcher]

So it's the question of whether living as a dog is better or worse than not existing at all.

You are right that this is the correct question. I do indeed tend to think that existing as a non-human animal on this planet is currently worse than not existing (in the wild, in factory farms, probably as pets). Not because all individuals are necessarily worse off, but because the extremes of abuse and suffering are so bad that the happiness they may experience in the moderately good lives is mostly outweighed even if most of them don't suffer horribly. I may be wrong. Just ask yourself: If reincarnation was real and optional, how many non-abusive random dog lives would you have to be offered to accept an abusive one, over non-existence?

I don't know. Honestly, I think I'd take any number of abusive dog lives over non-existence. I have a great fear of the nothingness that is beyond, and would (at the moment) rather live with every moment filled with torture than never think, feel, perceive again.

This argument that non-existence is better than a bad existence has always struck me as a deeply troubling one. The problems that animals encounter on a day to day basis are not that much worse than those that a poor child in a developing country might face, and I would take deep offence at the idea that that child (even if we know it will never get out) would be better off never existing. There are many maimed, starving, crippled, blind, deaf, poor, thirsty, troubled, ill people out there who want to live as long as they can.

It's a largely personal choice. And I must admit I haven't the slightest idea of how one would learn if non-human animals are capable of making it.

First we'd need to know if an animal realized "X will kill you" and also "being killed means not suffering Y". But it doesn't seem like there's any solid way to decide if animals grasp these concepts.

[BattleMoose]

@Zamfir

I totally get where you are coming from, even if population sizes are less important now than they were previously, (they were really important back in the day and still important today) and one point that you did mention about values.

Makes some sense even: if I want my kids to grow up in a world where my (and presumably their) values and views are strongly supported, then I might want other people who share those views to have good bunch of kids as well, and raise them accordingly.

Understandably different people and groups have different values, I would like to think though that, equal under the law is considered paramount to most social groups and that is really what all this is about. And indeed the civil rights movements earlier in the 20th century dealing with legal discrimination regarding races, still, legal discrimination based on sexual orientation is something that should not be considered okay.

Also, on this note, it makes me insanely angry that the 34th IPCC Session was held in Uganda, which is trying to pass a bill where homosexuality will be a capital offence, even though it hasn't been passed yet, homosexuality is still illegal there. And still, the IPCC thinks its okay to hold such a conference in a country with such blatant human right abuses. /end of slight tangent.

Also, a real consequence of vilifying homosexuality and pressuring homosexual to be heterosexual oftentimes coerces homosexuals to enter into relationships and marriages with women, have kdis and many years later find that they can no longer continue the charade. Sucks to be the wife in this scenario and kids also and the gay man involved is also a clear loser, its a shit scenario for everyone involved. And even today this scenario that I have painted is still very common.

[Hedonic Treader]

There are many maimed, starving, crippled, blind, deaf, poor, thirsty, troubled, ill people out there who want to live as long as they can.

There are also many people on the planet who wish they had better suicide methods and who regret that they were born. There's neurological differences in pain sensitivity, neuroticism and the hedonic baseline, happiness isn't just a function of poverty or physical illness, it's also a function of genetics, past experiences, and other factors. This is why it makes sense to put an emphasis on consent. When life, or certain parts of it, aren't voluntary, there's no reason to assume the result is better than nothing at all. Coming into existence is never voluntary, and for many, suicide isn't easy or available, especially for small human children and non-human animals.

The problems that animals encounter on a day to day basis are not that much worse than those that a poor child in a developing country might face, and I would take deep offence at the idea that that child (even if we know it will never get out) would be better off never existing.

You're right this isn't necessarily true regarding any one given individual, but clearly there are very many who would be better off never existing. But as I said, this isn't just about poverty, there are wealthy people who regret that they were born.

I have a great fear of the nothingness that is beyond, and would (at the moment) rather live with every moment filled with torture than never think, feel, perceive again.

Two points here:

1) Your fear could be irrational or based on false assumptions. I don't see non-existence as a scary oblivion but simply "true neutrality". There's also the question of the nature of time. Surprisingly, people who are afraid of a future in which they don't exist are often completely untroubled by the 13.7 billion years in the past in which they don't exist, or by the large intergalactic voids in which they don't exist.

2) People have different priorities. I'm not afraid of death, even though I feel it's a loss of potential good experiences. But I'm seriously concerned about certain types of suffering, such as strong physical pain. I would trade away, say, 30 years of my life in order to avoid two weeks of total agony. I would pay a premium for a portable quick suicide method that can't be taken away from me. I take great offense at the thought that other people have the right to force me to remain alive. I pity those who can't opt out. It's a great form of harm.

[Zamfir]

Understandably different people and groups have different values, I would like to think though that, equal under the law is considered paramount to most social groups and that is really what all this is about. And indeed the civil rights movements earlier in the 20th century dealing with legal discrimination regarding races, still, legal discrimination based on sexual orientation is something that should not be considered okay.

I never saw much value in the equality-under-the law argument for gay marriage, or other gay rights. It's the kind of argument that only works for people who agree on the issue anyway. Though rallying the base has its value as well, I guess.

After all, people who oppose gay rights generally consider gay relations a bad thing. Something that would damage society if it spread too wide. Depending on the person, they consider it a mildly bad thing or a very grave thing. More like wearing smelly clothes in public, or more like dumping toxic waste in a river. But in any case something that should be discouraged at the least, or even suppressed by law or social stigma.

"Equality under the law" doesn't apply to people who do good things instead of bad things. The equality-under-the-law argument assumes that people are already convinced that gay relationships aren't bad things. Which is exactly what people need to be convinced of, in order to generate support of gay rights.

[BattleMoose]

I never saw much value in the equality-under-the law argument for gay marriage, or other gay rights. It's the kind of argument that only works for people who agree on the issue anyway. Though rallying the base has its value as well, I guess.

Wow, this is a really different perspective. For me this has generally been the only issue, I couldn't be damned what people think about me personally but I have every expectation to be, treated equally under the law.

Where I grew up, in South Africa, we have this thing called a bill of rights, and it plainly states that, Everyone is equal before the law and has the right to equal protection and benefit of the law.

It is such a fundamental statement of equality that I struggle to understand how some people can not respect it. Tragically here in Australia there is no bill of rights and no such statement of freedom, equality or universal protection under the law. For interests sake, the issue of gay marriage was taken to the constitutional court in 2004, in South Africa and was legally implemented as discrimination based on sexual orientation was found to be, unconstitutional. There was none of this popular opinion nonsense that is the hallmark of the gay marriage movement both in the USA and Australia. In South Africa it was a legal issue, there were the legal structures available, to appeal to for legal protection.

Human rights are not subject to popular opinion or democratic vote.

However unrealistic, governments could implement discrimination based on red hair, foot size, lazy eyes or uni-brows, or any other characteristics that define a minority of the population, it is the legal protections within the bill of rights and Constitutions of countries that afford protection against such discrimination by recognizing that all are equal, under the law. It is perhaps the most important feature of liberal democracy as a concept. Heaven knows we have been through this, legally discriminating based on gender, race and religion and its by far time to add sexual orientation to the list of stupid shit we used to legally discriminate against.

I recognize you merely consider the argument to be ineffective and not actually valid. (probably)

Still, I struggle with the idea that people are so ready to discard the most important feature of their democracies.

[DSenette]

I never saw much value in the equality-under-the law argument for gay marriage, or other gay rights. It's the kind of argument that only works for people who agree on the issue anyway. Though rallying the base has its value as well, I guess.

Wow, this is a really different perspective. For me this has generally been the only issue, I couldn't be damned what people think about me personally but I have every expectation to be, treated equally under the law.

Where I grew up, in South Africa, we have this thing called a bill of rights, and it plainly states that, Everyone is equal before the law and has the right to equal protection and benefit of the law.

It is such a fundamental statement of equality that I struggle to understand how some people can not respect it. Tragically here in Australia there is no bill of rights and no such statement of freedom, equality or universal protection under the law. For interests sake, the issue of gay marriage was taken to the constitutional court in 2004, in South Africa and was legally implemented as discrimination based on sexual orientation was found to be, unconstitutional. There was none of this popular opinion nonsense that is the hallmark of the gay marriage movement both in the USA and Australia. In South Africa it was a legal issue, there were the legal structures available, to appeal to for legal protection.

Human rights are not subject to popular opinion or democratic vote.

However unrealistic, governments could implement discrimination based on red hair, foot size, lazy eyes or uni-brows, or any other characteristics that define a minority of the population, it is the legal protections within the bill of rights and Constitutions of countries that afford protection against such discrimination by recognizing that all are equal, under the law. It is perhaps the most important feature of liberal democracy as a concept. Heaven knows we have been through this, legally discriminating based on gender, race and religion and its by far time to add sexual orientation to the list of stupid shit we used to legally discriminate against.

I recognize you merely consider the argument to be ineffective and not actually valid. (probably)

Still, I struggle with the idea that people are so ready to discard the most important feature of their democracies.

well, the us constitution TOTALLY says that everyone is equal under/on top of/before/whatever other direction the law is within relation to yourself. the US government and it's people just read it as "everyone is equal....unless it makes us feel icky, or it makes jesus cry".

it's actually somewhat amazing to me that south africa is more progressive on equality than the US given the recent nature of integration there.

[Tomo]

The problem with the whole "everyone is equal under the law" thing, is that it just doesn't make sense given a legal system capable of enforcing any system of rules whatsoever. For example, I can walk along the sidewalk. If someone else is driving and decides to drive along the sidewalk, changes are they'll get in trouble.

As soon as you view homosexuality as a bad thing, or a negative force on society, it doesn't fall under inequality to prosecute it. We don't see convicted murders sitting in prison saying "Hang on, I'm incarcerated and all those people who haven't killed anyone aren't, that's hardly equal".

Obviously I find the whole notion of homosexuality being in any way a bad thing repellent, but the fact that some people do think that way is the issue that needs tackling. Basically, I agree with what Zamfir said.

[thc]

The belief that homosexuality is bad because God says so is impossible to argue with. Even as ineffective as the "equality" argument is, you are still going to remain unconvincing to a large number of people against gay rights. The "equality" argument makes sense through a libertarian perspective: just because something is bad, doesn't mean you have a right to mess with it. Two drug addicts getting married and having children is probably a bad idea, but the law doesn't stop it. It's possible to think that homosexuality is bad, yet still support equal treatment under the law. I've known several people who've taken this stance over the years.

[omgryebread]

The belief that homosexuality is bad because God says so is impossible to argue with. Even as ineffective as the "equality" argument is, you are still going to remain unconvincing to a large number of people against gay rights. The "equality" argument makes sense through a libertarian perspective: just because something is bad, doesn't mean you have a right to mess with it. Two drug addicts getting married and having children is probably a bad idea, but the law doesn't stop it. It's possible to think that homosexuality is bad, yet still support equal treatment under the law. I've known several people who've taken this stance over the years.

It's pretty easy to frame a libertarian justification of not supporting marriage equality, since marriage is not a "right." (Libertarians are deontologists. All obligations to them are negative, in the sense that it's a "Thou Shall Not" and never "Thou Shall." Therefore, no one has a right to have someone do something else. Marriage requires an action by another actor, and rights in libertarianism cannot require another actor to act. In this case, the other actor is government, or abstractly speaking, the people.)

Sadly, equal rights has never really struck me as a good argument, because of the annoying counter-response "Sure gay people can get married. To the opposite sex!" Despite the fact that it irritates the hell out of me, it's actually true. Every adult capable of consent can marry. Every adult capable of consent cannot marry whomever they wish.

The best argument for the short term is that government policy should not be based on religious values, and if God is really pissed that I'm in a loving and committed relationship with another girl, I'm sure he'll square up with me when I die, and it's not the business of the government to enforce his preferences. That's not going to convince a lot of people, because they don't believe (or think they do, but don't really) believe in truly secular government. Or they don't think their desire to prohibit same-sex marriage (or activity) stems from religion (homophobic atheists are hilarious to me) and they think that enforcing their preferences is a cool thing to do.

The only way the argument is ever going to be settled is when people are okay with homosexuality.

[yurell]

Sadly, equal rights has never really struck me as a good argument, because of the annoying counter-response "Sure gay people can get married. To the opposite sex!" Despite the fact that it irritates the hell out of me, it's actually true. Every adult capable of consent can marry. Every adult capable of consent cannot marry whomever they wish.

That response has always irritated me. 'Equal rights' can be viewed on the level of each individual person, not the group as a whole -- any man is allowed to marry any woman, so why can I not have the same rights as a man? If I can't, then men and women aren't equal in this manner. And obviously the reverse is true for a woman being allowed to marry any man.

In that frame it's as much as gender equal rights as it is sexuality equal rights.

[BattleMoose]

The belief that homosexuality is bad because God says so is impossible to argue with. Even as ineffective as the "equality" argument is, you are still going to remain unconvincing to a large number of people against gay rights. The "equality" argument makes sense through a libertarian perspective: just because something is bad, doesn't mean you have a right to mess with it. Two drug addicts getting married and having children is probably a bad idea, but the law doesn't stop it. It's possible to think that homosexuality is bad, yet still support equal treatment under the law. I've known several people who've taken this stance over the years.

It's pretty easy to frame a libertarian justification of not supporting marriage equality, since marriage is not a "right." (Libertarians are deontologists. All obligations to them are negative, in the sense that it's a "Thou Shall Not" and never "Thou Shall." Therefore, no one has a right to have someone do something else. Marriage requires an action by another actor, and rights in libertarianism cannot require another actor to act. In this case, the other actor is government, or abstractly speaking, the people.)

From the Universal Declaration of Human Rights

Article 7.

* All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

So while marriage is not a right, limiting marriage to a subset of the population is a violation of human rights, technically the discrimination is based on gender and not quite on sexual orientation, that is marriage can only be between a man and a woman.

The only way the argument is ever going to be settled is when people are okay with homosexuality.

I don't think this is true, many people were not okay with giving women the vote, or allowing blacks to serve in the armed forces or to abolish slavery. Further, the majority of Australians do support gay marriage.

[DaBigCheez]

Sadly, equal rights has never really struck me as a good argument, because of the annoying counter-response "Sure gay people can get married. To the opposite sex!" Despite the fact that it irritates the hell out of me, it's actually true. Every adult capable of consent can marry. Every adult capable of consent cannot marry whomever they wish.

Considering the same argument was put forth against interracial marriage in Loving vs. Virginia, just with regards to race rather than gender ("Sure, people of every race can get married. To the same race!"), and this was explicitly and unanimously struck down by the Supreme Court as being unconstitutional, I think this can be considered a discredited argument. I can't find the exact quote, but I believe it was something along the lines of "equal application does not constitute equal protection".

Naturally, the counterarguments to why this applies seem to run along the lines of "oh, but this is different, everyone knows blacks were historically discriminated against and this is correcting that, but marriage is between a man and a woman, who would even think it could be anything else!" Delightful non-sequitur, but there you go; at least it's about the definition of "marriage" rather than a claim that rights are already being applied in perfect equality.

[omgryebread]

From the Universal Declaration of Human Rights

Article 7.

* All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

So while marriage is not a right, limiting marriage to a subset of the population is a violation of human rights, technically the discrimination is based on gender and not quite on sexual orientation, that is marriage can only be between a man and a woman.

The Universal Declaration of Human Rights was not written by libertarians, and I was speaking about how equality arguments are not necessarily going to appeal to them.

There's no gender discrimination here. Any woman is free to marry (a man), and any man is free to marry (a woman). You could argue that gender discrimination is existant because a man can marry a woman while a woman cannot, and vice versa, but it doesn't take that long a stretch to view that as moot.

The only way the argument is ever going to be settled is when people are okay with homosexuality.

I don't think this is true, many people were not okay with giving women the vote, or allowing blacks to serve in the armed forces or to abolish slavery. Further, the majority of Australians do support gay marriage.

Huh? All those things being done doesn't mean the argument was settled, people still opposed all those things, violently in the case of the last one.

I don't mean that gay marriage will be legalized when people accept homosexuality, I mean that all these debates over same-sex marriage aren't arguments about rights or constitutionality, but an argument about whether homosexuality is okay or not.

Considering the same argument was put forth against interracial marriage in [url="Loving vs. Virginia"]http://en.wikipedia.org/wiki/Loving_v._Virginia[/url], just with regards to race rather than gender ("Sure, people of every race can get married. To the same race!"), and this was explicitly and unanimously struck down by the Supreme Court as being unconstitutional, I think this can be considered a discredited argument. I can't find the exact quote, but I believe it was something along the lines of "equal application does not constitute equal protection".

Naturally, the counterarguments to why this applies seem to run along the lines of "oh, but this is different, everyone knows blacks were historically discriminated against and this is correcting that, but marriage is between a man and a woman, who would even think it could be anything else!" Delightful non-sequitur, but there you go; at least it's about the definition of "marriage" rather than a claim that rights are already being applied in perfect equality.

Yeah, the definition argument is really a better way of saying what I was.

I really want to stress that I hate that argument. I totally want to have marriage mean a contract between two consenting adults, but I think arguments against it are valid to an extent. (That extent being that even if it's not unconstitutional or morally wrong to do so, there's no good reason marriage should be limited to heterosexual relationships.)

[BattleMoose]

From the Universal Declaration of Human Rights

Article 7.

* All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

So while marriage is not a right, limiting marriage to a subset of the population is a violation of human rights, technically the discrimination is based on gender and not quite on sexual orientation, that is marriage can only be between a man and a woman.

The Universal Declaration of Human Rights was not written by libertarians, and I was speaking about how equality arguments are not necessarily going to appeal to them.

There's no gender discrimination here. Any woman is free to marry (a man), and any man is free to marry (a woman). You could argue that gender discrimination is existant because a man can marry a woman while a woman cannot, and vice versa, but it doesn't take that long a stretch to view that as moot.

Moot? The existence of gender and/or sexual orientation discrimination is the entire point, because it is a violation of The Universal Declaration of Human Rights.

The only way the argument is ever going to be settled is when people are okay with homosexuality.

I don't think this is true, many people were not okay with giving women the vote, or allowing blacks to serve in the armed forces or to abolish slavery. Further, the majority of Australians do support gay marriage.

Huh? All those things being done doesn't mean the argument was settled, people still opposed all those things, violently in the case of the last one.

It wasn't a question of arguments being settled, but rather of when such things became legal. As in, a lot of people were pissed about the abolition of slavery, but it still happened anyway, ergo, the legality of same-sex relationships does not necessarily require everyone to be okay with it.

I don't mean that gay marriage will be legalized when people accept homosexuality, I mean that all these debates over same-sex marriage aren't arguments about rights or constitutionality, but an argument about whether homosexuality is okay or not.

For me it is entirely an argument of rights and constitutionality, as I already highlighted in South Africa, it was entirely an issue of rights and constitutionality, the religious groups opposed to same-sex relationships still exist and there are still a lot of homophobic jerks who are not okay with it and it didn't matter because its not an issue of people being okay with homosexuality but an issue of legality.

[thc]

The belief that homosexuality is bad because God says so is impossible to argue with. Even as ineffective as the "equality" argument is, you are still going to remain unconvincing to a large number of people against gay rights. The "equality" argument makes sense through a libertarian perspective: just because something is bad, doesn't mean you have a right to mess with it. Two drug addicts getting married and having children is probably a bad idea, but the law doesn't stop it. It's possible to think that homosexuality is bad, yet still support equal treatment under the law. I've known several people who've taken this stance over the years.

It's pretty easy to frame a libertarian justification of not supporting marriage equality, since marriage is not a "right." (Libertarians are deontologists. All obligations to them are negative, in the sense that it's a "Thou Shall Not" and never "Thou Shall." Therefore, no one has a right to have someone do something else. Marriage requires an action by another actor, and rights in libertarianism cannot require another actor to act. In this case, the other actor is government, or abstractly speaking, the people.)

Sadly, equal rights has never really struck me as a good argument, because of the annoying counter-response "Sure gay people can get married. To the opposite sex!" Despite the fact that it irritates the hell out of me, it's actually true. Every adult capable of consent can marry. Every adult capable of consent cannot marry whomever they wish.

The best argument for the short term is that government policy should not be based on religious values, and if God is really pissed that I'm in a loving and committed relationship with another girl, I'm sure he'll square up with me when I die, and it's not the business of the government to enforce his preferences. That's not going to convince a lot of people, because they don't believe (or think they do, but don't really) believe in truly secular government. Or they don't think their desire to prohibit same-sex marriage (or activity) stems from religion (homophobic atheists are hilarious to me) and they think that enforcing their preferences is a cool thing to do.

The only way the argument is ever going to be settled is when people are okay with homosexuality.

I'm much less concerned with technical legality than with what constitutes an effective argument. Convincing someone who thinks homosexuality is bad, that, while homosexuality may be bad, gay marriage is still legal/should be allowed/a right is much more effective than convincing that person that homosexuality is, in fact, not bad. This is all based on personal anecdote and intuition of course. I've seen the first argument be effective a number of times, but never the second.

Accepting the first seems like merely a small concession due simply to not being able to dictate how everyone lives; e.g., "if they want to live in sin, it's their choice not the government's!" Accepting the second seems like it would require a total rewrite of that person's moral compass, especially if a beloved pastor has been shoving the "gay=evil" message down their throat their entire life.

[tyboy]

I'm much less concerned with technical legality than with what constitutes an effective argument. Convincing someone who thinks homosexuality is bad, that, while homosexuality may be bad, gay marriage is still legal/should be allowed/a right is much more effective than convincing that person that homosexuality is, in fact, not bad. This is all based on personal anecdote and intuition of course. I've seen the first argument be effective a number of times, but never the second.

Accepting the first seems like merely a small concession due simply to not being able to dictate how everyone lives; e.g., "if they want to live in sin, it's their choice not the government's!" Accepting the second seems like it would require a total rewrite of that person's moral compass, especially if a beloved pastor has been shoving the "gay=evil" message down their throat their entire life.

You can't generalize that line of thinking at all though As a result even a relatively open minded person isn't likely to be swayed by it. If a person thinks that homosexuality is harmful to society, then saying that equal protection should cover homosexuality is an absurd argument since we don't apply it to other activities that are harmful to society. Previous posters have given good examples of harmful activities. That sort of assumes that the belief that homosexuality is harmful to society is actually the reason people are opposed to homosexuality as opposed to just a rationalization (my suspicion is that the base reason is mostly ick factor with indoctrination coming in second).

I'm kind of disappointed Zamfir's original criticism of the equality argument didn't spawn more thoughtful responses. In spite of being completely pro same-sex marriage I can't think of a good response to it. It's difficult to reasonably argue that heterosexual and homosexual marriage are the same thing (it's important that I used 'same' as opposed to 'equal'). There are clearly things that differentiate them, even if I would argue those things are insignificant (again, 'insignificant' as opposed to 'nonexistant'). If the insignificance argument isn't accepted then the whole equality argument falls apart.

Any mentions of the importance of equality as a value or guarantee under law miss the point. Nobody has particularly disputed that equal protection is or should be enshrined in law. They tend to necessarily be like that human rights declaration though; Incredibly vague and with the broadest interpretation (dangerous criminals with an equal right to freedom of action) being fairly absurd.
They only even seem to apply because we happen to be at a strange point in time where homosexuality is past being criminal (in the USA) but not all the rules have quite caught up. If a person is opposed to same-sex marriage because they think that homosexuality is harmful, then they're only fighting same-sex marriage because that's where the chains happen to be right now. They'd probably be fighting legalization instead if that's where the law was. In that situation it would be obvious that the equality argument wouldn't make sense and yet the mind of the person opposed to same-sex marriage is no different. The equality argument makes the most sense in the context of the judiciary where it is already a given that homosexuality is not harmful by virtue of the fact that it is not illegal.

I guess the only thing I can think of is to dispute the notion that homosexuality is harmful, but that can be so hard since so many of the alleged harms are so vague.

[BattleMoose]

You can't generalize that line of thinking at all though As a result even a relatively open minded person isn't likely to be swayed by it. If a person thinks that homosexuality is harmful to society, then saying that equal protection should cover homosexuality is an absurd argument since we don't apply it to other activities that are harmful to society. Previous posters have given good examples of harmful activities. That sort of assumes that the belief that homosexuality is harmful to society is actually the reason people are opposed to homosexuality as opposed to just a rationalization (my suspicion is that the base reason is mostly ick factor with indoctrination coming in second).

Drinking, smoking, soft drinks are all harmful to society, yet the law applies equally to all who choose to partake in these activities, and medical services are applied equally to all those who have special medical needs of people who choose to partake in these activities. Imagine a law that outlaws drinking for Latino and African Americans, whether or not it is beneficial to society is irrelevant so long as it is discriminatory. Although I am very uncomfortable even arguing against this because it has the presupposed assumption that homosexuality is harmful to society, which I certainly do not think is the case.

I'm kind of disappointed Zamfir's original criticism of the equality argument didn't spawn more thoughtful responses. In spite of being completely pro same-sex marriage I can't think of a good response to it. It's difficult to reasonably argue that heterosexual and homosexual marriage are the same thing (it's important that I used 'same' as opposed to 'equal'). There are clearly things that differentiate them, even if I would argue those things are insignificant (again, 'insignificant' as opposed to 'nonexistant'). If the insignificance argument isn't accepted then the whole equality argument falls apart.

Sure heterosexual relationships are different to homosexual relationships, generalized differences will also occur between teen weddings, older couple marriages, inter-racial marriages, inter nationality marriages, inter religious marriages, hetero-religious marriages, atheistic unions, hetero-nationality marriages, marriages where a wide age difference exists, or a large financial difference exists, all of these unions will have generalized differences to each other, and I am sure many more generalized typologies of relationships can be thought of, and at the end of it, so what?

Recognizing that the law should not, and really, must not differentiate on any of these characteristics, the only reasonable outcome is that all unions should be equally recognized by the state. Limiting the recognition of unions between a man and a woman is plainly arbitrary and discriminatory, upon recognizing this discrimination the only appropriate course of action is to remedy it. And if not, well to be blunt, that state cannot be considered a liberal democracy, because it contains laws, that are discriminatory and thinks its okay.

Any mentions of the importance of equality as a value or guarantee under law miss the point. Nobody has particularly disputed that equal protection is or should be enshrined in law. They tend to necessarily be like that human rights declaration though; Incredibly vague and with the broadest interpretation (dangerous criminals with an equal right to freedom of action) being fairly absurd.

This is the biggest amount of ass I have read in a long time. Firstly, let me link you to the wikipedia articles on Chapter 2 and Chapter 9 of the Constitution of South Africa, which is essentially the incorporation of the Universal Declaration of Human Rights into law. South Africa also has the Constitutional Court, whose job it is to interpret cases which impinge on constitutional rights, and which is also the highest court in the land and what you disregard as incredibly vague and with the broadest interpretation, is literally the most important and has the ultimate say in South African law. And its working.

http://en.wikipedia.org/wiki/Chapter_Tw ... uth_Africa
http://en.wikipedia.org/wiki/Section_Ni ... uth_Africa

Its no surprise that people who have been discriminated against value these rights incredibly highly, perhaps more so than anything else or that the implementation of such documents, Universal Declaration of Human Rights and the South African Constitution are essentially the results of extreme and hateful discrimination.

Further,

(dangerous criminals with an equal right to freedom of action)

, is plainly untrue.

Article 29 of the Universal Declaration of Human Rights:

Article 29

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

I guess the only thing I can think of is to dispute the notion that homosexuality is harmful, but that can be so hard since so many of the alleged harms are so vague.

Whether or not homosexuality is harmful to society or not is actually completely irrelevant and is actually quite insulting to even entertain the idea to be completely honest. The only issue is whether or not homosexuality is impinging on the human rights of others or if there are laws that are impinging on the human rights of homosexuals.


I know I am emphasizing the legality issue and human rights issue and that is because it is so important. The only protection minority groups have in democracies is the law, they can always be outvoted and disliked by much larger groups. It is the tyranny of the majority issue. And we have the International Recognition, finally, that any form of such discrimination is entirely inappropriate and some countries have that in the own laws too.

So, especially in Democratic countries, where human rights are regarded as the ultimate goal in existence, let us then appeal to those rights. Failure to gain legal protections after appealing to human rights raises some very uncomfortable questions about the democracies that still discriminate on arbitrary physical characteristics, or behaviors.

I guess some people think that Human Rights are the most important thing in all legal matters and in the operation of a State, and well, I am appalled that some many people in Democratic nations think these things are negotiable.

[BattleMoose]

Sorry for the double post, but this is worth sharing.

http://front.moveon.org/two-lesbians-ra ... t.facebook

Basically discusses all the fears relating to same-sex couples raising children.

[IvanV]

Article 29
meeting the just requirements of morality, public order and the general welfare in a democratic society.

'just', 'morality', 'general welfare'... if you cite this article to explain why dangerous criminals are stripped of their right to freedom of action, can it not equivalently be used to violate every right in the whole Universal Declaration as long as it's done for the 'general welfare'?

Back to the main topic, I'm inclined to agree with previous posters that the real argument here is a legal one, not a constitional one. Marriage is nobody's fundamental right; it's an institution we as a society set up however we please. The question is whether gay marriage is harmful (benign) enough to warrant restriction (legalization). It should thus be considered on its own, separate from marriage to inanimate objects, animals, or groups of people, for its benefit to society.

Personally, I'm inclined to the opinion that gay marriage should be legalized; I see marriage as an instutition set up for the protection of children, and I see no reason why gay parents are less able to raise children than heterosexual adopted parents. The one good argument against that I've heard has to do with protecting heterosexuality because it actually produces children - a completely homosexual society would obviously die out. It seems to me though that in most societies there is a surplus of children over willing and capable parents, and so this argument is, at least for now, incorrect.

[BattleMoose]

Article 29
meeting the just requirements of morality, public order and the general welfare in a democratic society.

'just', 'morality', 'general welfare'... if you cite this article to explain why dangerous criminals are stripped of their right to freedom of action, can it not equivalently be used to violate every right in the whole Universal Declaration as long as it's done for the 'general welfare'?

Erh, no. Article 29 explicitly states that limitations on rights imposed by law can only be applied in order to protect the rights and freedoms of others. My reading of it is that someone has to violate or threaten one of the rights within the UDHR in order to have any of his rights restricted, such as being imprisoned. Further, the third point is also very relevant, These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Back to the main topic, I'm inclined to agree with previous posters that the real argument here is a legal one, not a constitional one. Marriage is nobody's fundamental right; it's an institution we as a society set up however we please. The question is whether gay marriage is harmful (benign) enough to warrant restriction (legalization). It should thus be considered on its own, separate from marriage to inanimate objects, animals, or groups of people, for its benefit to society.

Marriage is not a right. But equal application of the law is. Marriage is not equally applied and that is why its a rights issue, because this legal institution is not equally applied.

[IvanV]

Regarding Article 29, your reading seems to be a very selective one; but I won't pursue the point further, both because of my ignorance on the topic of the UDHR, and because you made the admission I was looking for - that marriage is not a right.

As for equal application of the law, this is a matter of how you define marriage. If you define marriage as an institution regulating heterosexual union (the way it's been defined in most societies for most of history), then there is no rights issue; the framework of marriage (i.e. heterosexual union) applies to everyone equally - anyone can enter into a heterosexual union, regardless of gender, race, or sexual orientation.

Now if you define marriage to be an institution regulating a union between any two human beings, then there is indeed, as you say, a rights issue if heterosexual marriages are allowed but homosexual ones are not.

So the debate is not one of rights, but rather one of defining marriage; which, since marriage is an institution, is simply a matter of policy.

[BattleMoose]

As for equal application of the law, this is a matter of how you define marriage. If you define marriage as an institution regulating heterosexual union (the way it's been defined in most societies for most of history), then there is no rights issue; the framework of marriage (i.e. heterosexual union) applies to everyone equally - anyone can enter into a heterosexual union, regardless of gender, race, or sexual orientation.

So the debate is not one of rights, but rather one of defining marriage; which, since marriage is an institution, is simply a matter of policy.

Again no, and this has been brought up in this thread, the idea that everyone can be married and therefore equal. It fantastically fails to recognize that there are many people out there that do not want to enter heterosexual relationships and would like to marry the people they live and would like to spend their lives with and would also like all the legal benefits that come from being married.

Essentially marriage is an institution that is restricted to heterosexual couples, suggesting that homosexuals have the legal right to marry a heterosexual is, annoying, because they don't want to. They want to marry the person they have been in a defacto relationship for +20 years. Consider also a marriage law that restricted marriage to people of the same race, again, everyone can still get married but its certainly not equal in the sense that often people cannot marry the person they love. So, the idea of equal application of the law is certainly relevant.

Further, when the issue of equal marriage was brought to the South African Constitutional Court, as has already been mentioned in this thread, the Constitutional Court ruled that marriage restricted to heterosexual couples was unconstitutional and a violation of the rights of homosexuals and ordered that the marriage act be changed to include homosexual unions. South Africa was able to do this legally, because we have a Bill of Rights that essentially includes all of the UDHR and critically the equal application of the law aspect. It was a rights issue.

So while we might argue here that marriage is equal or not as being restricted to heterosexual unions, just note that this was thrashed out in much more detail before the South African Constitutional Court and joyfully they ruled that the marriage act was not equal.

[IvanV]

Hmm, so your argument is that since some people are entitled to the legal benefits of marriage with a partner they love, everyone should be. Love is a very vague term though, with no legal meaning - the same logic effortlessly generalizes to marriage with groups of people (though not to objects and animals since no legal benefit of marriage applies to non-humans). After all, some people are entitled to the legal benefits of marriage with the group they love (it just happens that that group is a single person), so everyone should be. Not that I'm against group marriage, just noting it as a necessary consequence of your argument's validity.

I think my only qualm about accepting your argument is the implicit assumption that laws cannot discriminate by sexual behaviour. It's pretty well accepted that they cannot discriminate by race or gender, but can discriminate by age and income (e.g. welfare and arguably taxes). Why is the right to equal application upheld in the first category, ignored in the second, and why does sexual behaviour belong in the first?

[BattleMoose]

Hmm, so your argument is that since some people are entitled to the legal benefits of marriage with a partner they love, everyone should be. Love is a very vague term though, with no legal meaning - the same logic effortlessly generalizes to marriage with groups of people (though not to objects and animals since no legal benefit of marriage applies to non-humans). After all, some people are entitled to the legal benefits of marriage with the group they love (it just happens that that group is a single person), so everyone should be. Not that I'm against group marriage, just noting it as a necessary consequence of your argument's validity.

I think my only qualm about accepting your argument is the implicit assumption that laws cannot discriminate by sexual behaviour. It's pretty well accepted that they cannot discriminate by race or gender, but can discriminate by age and income (e.g. welfare and arguably taxes). Why is the right to equal application upheld in the first category, ignored in the second, and why does sexual behaviour belong in the first?

Polygamy is most places is actually illegal, which is probably quite silly (except that it protects a spouse from having their partner marrying other without their knowledge, that happens and that should be illegal in my opinion), but regardless if we have a portion of our population being unhappy about our anti-polygamy laws and want their group marriage recognized, we should seriously consider that. I cannot off the top of my head figure any moral or ethical reasons why group marriages should be illegal, albeit they would be incredibly more complicated, especially in divorce scenarios.

There are incredibly good reasons to discriminate by age, voting particularly, owning firearms and the consumption of alcohol. No one takes issue with this, nor does it target a specific portion of the population, rather it has targeted everyone at a point in their life. Perhaps that's the important issue. Similarly with income, taxing higher income earners disproportinatly is a good thing for society and again, it doesn't target someone for being born a certain way. And we do have discrimination on gender, particularly with insurance and that's perfectly legal and again it makes sense and there are good reasons for that. And we do have some drugs which are much more effective on different racial groups, so discriminate medically with those treatments, because it makes sense. And perhaps much more controversially homosexuals cannot donate blood or there are prohibitive restrictions to such donation and while this is highly emotive on some grounds it does make some sense. And we have employment laws in many countries all over the world that also discriminate especially on gender and race. I am not entirely sure where I am going with this, rather just pointing out that we do have legal discrimination on just about every aspect that has been discussed so far, race, gender, sexual orientation, age, income, et cetera.

If we actually take a closer look at article 7. I think its probably a lot more nuanced than either of us actually appreciate. On a very technical level, heterosexual marriage is a legal institution that anyone can enter into, but that is not what is being disputed.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Where this really falls down is the aspect of equal protection of the law, the most extreme example of this that I can think of is a homosexual couple, being together for 20+ years and one of them falls terminally ill. Because family have special visitation rights, the family of the terminally ill partner can actually deny visitation access from the other partner. And because they aren't married the healthy partner has literally no rights whatsoever regarding treatment or visitation and can essentially be denied access to the entire grieving process. You don't have to be a lawyer to understand how this is very different to a married heterosexual couple going through the same tragedy, where the spouse has the ultimate say in everything.

I don't think it so much of an issue that we cannot have legal discrimination but rather that everyone is equal before the law and are entitled to equal protection before the law. And my interpretation of the examples that you brought up, discrimination on age and income, is that everyone considered are actually still being treated equally and are receiving equal protection of the law. This is probably an issue that could be hacked out for months in a court of law. :-/

The morality and ethicalality of extending the marriage act to include same sex unions is fundamentally identical to the extension of the marriage act to include mixed racial unions. I am wholly unaware of any moral, ethical or legal argument that can include one but exclude the other. I would like you to think about this, firstly why its okay to have mixed racial marriages but not same sex marriages.

[krogoth]

So true moose, I'm a guy only after girls. But it's a life commitment between Humans, marrage for anyone, I don't care what religion people belong to or if their religion won't preform gay marrage, That I understand, But civil union, or marrage before the state is a right ANY two humans share.

This though does mean religions have the right not to have to preform the marrages, but there should at least be goverment appointed officals, that can preform a marrage.

[IvanV]

I don't think it so much of an issue that we cannot have legal discrimination but rather that everyone is equal before the law and are entitled to equal protection before the law. And my interpretation of the examples that you brought up, discrimination on age and income, is that everyone considered are actually still being treated equally and are receiving equal protection of the law. This is probably an issue that could be hacked out for months in a court of law. :-/

Although I also feel that the people involved are being treated equally, I think it's more because I'm thinking of the immense benefits to society that this discrimination provides, than the innate justifibiality of it. After all, would you feel the same way if welfare was reversed - the poor were taxed heavily and the rich were given handouts? Or if old people, for the sake of their own safety, were denied adult rights like consumption of alcohol and possession of firearms? And yet the basic logic of both these policies is very similar to existing ones. I think whether discrimination is justified or not is a matter of perspective (or else one of legal technicalities, as you say - which are not terribly interesting or relevant to determining one's own political stance).

The morality and ethicalality of extending the marriage act to include same sex unions is fundamentally identical to the extension of the marriage act to include mixed racial unions. I am wholly unaware of any moral, ethical or legal argument that can include one but exclude the other. I would like you to think about this, firstly why its okay to have mixed racial marriages but not same sex marriages.

Simple - heterosexual marriages can produce children, same sex marriages can not. Many if not most benefits of marriage concern children, so it's a very relevant distinction, perhaps more relevant than gender is in the context of insurance.

It is using this distinction that you'll have people argue against gay marriage, and they'll argue the same way you did for discrimination you are OK with: "it's perfectly legal and it makes sense and there are good reasons for that".

the most extreme example of this that I can think of is a homosexual couple, being together for 20+ years and one of them falls terminally ill. Because family have special visitation rights, the family of the terminally ill partner can actually deny visitation access from the other partner.

I'm not sure this is a marriage issue. Aren't there legal mechanisms in place that allow you to change who has visitation rights, and who makes that kind of decision? (I actually don't know if there are, but if not there should be).

[BattleMoose]

The morality and ethicalality of extending the marriage act to include same sex unions is fundamentally identical to the extension of the marriage act to include mixed racial unions. I am wholly unaware of any moral, ethical or legal argument that can include one but exclude the other. I would like you to think about this, firstly why its okay to have mixed racial marriages but not same sex marriages.

Simple - heterosexual marriages can produce children, same sex marriages can not. Many if not most benefits of marriage concern children, so it's a very relevant distinction, perhaps more relevant than gender is in the context of insurance.

That is not an ethical or moral or a legal argument. Its just stating a difference between heterosexual and homosexual couples. For the most part homosexual couples practice anal sex (male ones anyway) and no one is suggesting that that is a good reason why homosexual couples should have important legal rights that heterosexual couples do not. But the argument is equivalent to stating that heterosexual couples produce children. Its a difference but it certainly isn't a reason to deny legal rights.

the most extreme example of this that I can think of is a homosexual couple, being together for 20+ years and one of them falls terminally ill. Because family have special visitation rights, the family of the terminally ill partner can actually deny visitation access from the other partner.

I'm not sure this is a marriage issue. Aren't there legal mechanisms in place that allow you to change who has visitation rights, and who makes that kind of decision? (I actually don't know if there are, but if not there should be).

Of course its a marriage issue, only in a marriage is there a spouse.

[PAstrychef]

So marriage rights are supposed to be based on fertility? Then why can old people get married?
These arguments are old as fuck, have been gone over and over in this very forum in the past and are just a good way to expose how clueless you are.
The State gives certain rights and protections to spouses and married couples. Thus, people want to be able to marry, in order to enjoy those rights and protections. In modern society, marriage partners are seen as being chosen through mutual desire. Therefore, people want to be able to marry those whom they desire. For the State to deny the right to marry only to certain couples based on a religious bias is utter crap. And any other explanation of this denial is fiction, pressed into service by the framework of religion.
(and there are even threads, in this very forum, on why and how multiple-partner marriages can be made legal and why they won't bring about the downfall of civilization.)
So do a bit of reading and try thinking, too.

[Zamfir]

BattleMoose, my main problem with your position here is that it relies, in practice, heavily on judges. Which is nice if the relevant judges happen to agree with you, but becomes just as problematic when they don't. And in a controversial, non-technical issue like this you can hardly expect that courts always agree with you.

After all, there are other times and other places that courts had no problem when gay men were locked in psychiatric wards or even prisons. It's a fair bet that quite some writers and signatories of the UNDHR in 1948 had no problems with such practices at all, and saw no contradiction with the document they were creating. If you want to rely on courts to make the right decision in a broader range of issues, you also have to wonder how to deal when the courts make a (in your view) wrong decision.

If you take an issue out of democracy and into the discretionary judgement of courts, you're not replacing the prejudiced views of the masses by objective truth, but by the prejudiced views of a selected small group of people. Perhaps those people are particularly smart and knowledgeable, perhaps even especially honest. But they are still fallible people. It's not so obvious that you can reliably select the best moral guides to the highest positions.

If a court would regularly makes decisions morally disagreed with, how long would you accept them as special authorities and start seeing them as yet another partisan group? There's a real trade-off there. The downside of a US-style court with a broad mandate is that the court becomes itself a part of politics.

[BattleMoose]

Zamfir:

Essentially I see that there are 2 two ways to change a law or introduce a new one.

The first would be to show that a particular law is itself unconstitutional/unlawful, which is what the South African Constitutional Court found the Marriage Act to be, in 2004 and the judiciary was able to order that the marriage act to be changed.

The second would be via popular opinion and those rally the political leaders to change a law because it is essentially the will of the people.

Now, in some countries the correct tools are in place for the legal mechanism to succeed and in others not. Now the main point I am trying to argue is that same sex marriage is a legal and a rights issue with specific reference to the UDHR, I do not necessarily think that the legal route would be the best mechanism to change the law, that would be country specific. Although I do strongly disagree with your assertion that its a non-technical issue, I think its highly technical.

Further, I have huge issue with appealing to popular opinion to correct what is essentially a human rights violation. Its like we have learnt nothing over the course of the past century regarding human rights, freedoms, liberties and democracy. Human rights are an essential part of any liberal democracy and they are fundamental, inalienable and are not subject to popular vote. Yet, particularly in the USA and Australia that is the route that is being taken, appealing to popular opinion to correctly implement rights.

Unfortunately in Australia the UDHR is not a legal document and neither is there a bill of rights, so the Australian Courts do not have the authority to order a change to the marriage act. I am less familiar with the USA but I imagine for similar reasons the legal route is also not open.

And as far as the prejudiced views of the masses well, there are a large number of people who will remain prejudiced and nothing is going to change that, ever. They are essentially the religious camp and are zealously hateful of same sex marriages, whether they get out voted in a popular appeal aspect or if the courts are able to save the day, they will still hate on the fags. Also as far as popular opinion goes, most people in Australia do support same sex marriage, but most not very strongly, so they cannot be arsed to march about it or change their voting habits on it either. But the religious camp is very emotive about this issue and they will change their voting issues on it, consequently of the two major political parties neither support same sex marriage, because they will only lose support even though the majority of Australians do support same sex marriage.

Ultimately and pragmatically I play along with the popular opinion efforts but I am very angry that I have to resort to it, but I do keep that anger to myself and occasionally vent it on the internets.

I want people to realize that same sex marriage is a lot more than just a nice thing for a society to have, but is a rights issue and also perhaps the last institution of legal discrimination in many countries.

Also I would be stunned if any high level court that was legally bound to the UDHR and could still find explicitly heterosexual marriage laws to be, lawful.

[TheGrammarBolshevik]

If you take an issue out of democracy and into the discretionary judgement of courts, you're not replacing the prejudiced views of the masses by objective truth, but by the prejudiced views of a selected small group of people. Perhaps those people are particularly smart and knowledgeable, perhaps even especially honest. But they are still fallible people. It's not so obvious that you can reliably select the best moral guides to the highest positions.

This is not how courts work, at least not in the United States. They aren't there to make moral judgments; they're there to figure out how the law applies. Judges can and have overturned laws on constitutional grounds that they agreed with in principle, and they've upheld laws that they disliked for the same reason.

Apart from that, taking an issue to the courts does not mean taking it out of democracy. If a law is challenged in court, it can still be repealed by legislative action, whether or not a judge overrules it. So, challenging a same-sex marriage ban as unconstitutional does not relinquish the possibility of democratic repeal.

[BattleMoose]

If you take an issue out of democracy and into the discretionary judgement of courts, you're not replacing the prejudiced views of the masses by objective truth, but by the prejudiced views of a selected small group of people. Perhaps those people are particularly smart and knowledgeable, perhaps even especially honest. But they are still fallible people. It's not so obvious that you can reliably select the best moral guides to the highest positions.

This is not how courts work, at least not in the United States. They aren't there to make moral judgments; they're there to figure out how the law applies. Judges can and have overturned laws on constitutional grounds that they agreed with in principle, and they've upheld laws that they disliked for the same reason.

Apart from that, taking an issue to the courts does not mean taking it out of democracy. If a law is challenged in court, it can still be repealed by legislative action, whether or not a judge overrules it. So, challenging a same-sex marriage ban as unconstitutional does not relinquish the possibility of democratic repeal.

Just on this, the South African Constitution would have to be amended in order to make same-sex marriages unlawful, specifically the bill of rights would need to be amended.

[Choboman]

In Scandanavia, they passed a registered partnership law. It basically stated that wherever the word "marriage" appears in the country's law will now be construed to mean "marriage or registered partnership" and wherever the word "spouse" appears will now be construed to mean "spouse or registered partner". Both same-sex couples and opposite-sex couples are allowed to enter into registered partnerships, and they appear to be basically equivalent to a civil union with no religious reference. These laws don't try to establish any moral equivalency between marriage and the partnerships, but they make the two contracts equivalent from a civil- and legal perspective.

If we were to pass something similar here in the states, would the readers of this forum consider an amendment like this to fully satisfy the 'equal protection' clause regarding marriage?

[Aiea]

Personally as an infertile athiest in a hetrosexual marriage. Yes, I would complain if religious people said that marrige had to only be religious. I also compain when they say that marriage has to create children. Both are bunk reasons for 'reserving' marriage for the heterosexual religous couples that have children.

[IvanV]

That is not an ethical or moral or a legal argument. Its just stating a difference between heterosexual and homosexual couples.

Sure it's a moral argument, or at least can be made into one. Children are an objective good for society, no? Therefore the production of children is a moral good and should be encouraged. Therefore heterosexual couples should receive special benefits. Unlike what PAstrychef seems to think, I never said this was a good argument, or one I was prepared to defend. I was just pointing out that such an argument exists, and I don't see how it is qualitatively different from the arguments justifying other, accepted forms of discrimination (by age, income, gender and sexual orientation). Many of them are flawed and fail to take into account exceptions (men pay extra insurance despite there being some highly responsible men, homosexuals can't donate blood despite most homosexuals not having STD's, etcetera) in same way that the fertility argument fails to take into account infertile heterosexual marriage.

Again, my argument here is not against gay marriage - as I said in my first post, I support gay marriage because I don't find the arguments against it convincing. However, I think it is a political issue rather than one of rights, and so I don't want this decision taken out of the hands of the elected legislature and into those of appointed courts.

the most extreme example of this that I can think of is a homosexual couple, being together for 20+ years and one of them falls terminally ill. Because family have special visitation rights, the family of the terminally ill partner can actually deny visitation access from the other partner.

I'm not sure this is a marriage issue. Aren't there legal mechanisms in place that allow you to change who has visitation rights, and who makes that kind of decision? (I actually don't know if there are, but if not there should be).

Of course its a marriage issue, only in a marriage is there a spouse.

True, but there are (or should be) other ways to give and obtain visitation rights than through marriage. The issue you point out doesn't concern marriage, it concerns a legal protection that also happens to be one of those guaranteed by marriage.