LDS letter on same-sex marriage

[McBell]

you practice law

Orontes is a lawyer?

Wow.
That explains so much

 

[Magic Man]

For homosexuals the argument i see has been "you're telling us who we can or cannot love"

they think Love and marriage are synonomous when they are not. Marriage should only be recognized by the state as between a man and a woman because that is the only way this country will continue to re-populate itself and produce more workers and taxpayers.

No, you are wrong. You apparently aren't listening. The argument is that homosexuals want to be able to marry the consenting adult of their choice so that they can receive the benefits of marriage just like everyone else.

 

[Magic Man]

Law by definition discriminates.

And this demonstrates your lack of understanding of the law quite clearly. The law differentiates. It doesn't (by definition) discriminate. American law by definition seeks to not discriminate.

 

[madhatter85]

And this demonstrates your lack of understanding of the law quite clearly. The law differentiates. It doesn't (by definition) discriminate. American law by definition seeks to not discriminate.

By law it is illegal to discriminate against people over the age of 35. Yet..... The law itself is discriminatory.

Affirmative action - Wikipedia, the free encyclopedia

Legalaized discrimination based on race.

 

[Autodidact]

And this demonstrates your lack of understanding of the law quite clearly. The law differentiates. It doesn't (by definition) discriminate. American law by definition seeks to not discriminate.

Well, not really. All laws discriminate. Some forms of discrimination are constitutional; others not. When the specific discrimination in a specific law is found to be unconstitutional, the Supreme Court strikes it down, as here.

Orontes argues that:
1. It is not the job of the Supreme Court to strike down laws as violating the Constitution.
2. This particular discrimination doesn't violate the Constitution, because list=a]homosexuality is not one of the kinds of discrimination that the Constitution prohibits
marriage is not the kind of thing that the Constitution takes special care to protect.
[/list]


The California Supreme Court has found that homosexuality is a special category entitled to special protection ("Protected class" and that because the Supreme Court has repeatedly held that marriage is a "fundamental right," it triggers special protection. Of these two, I would say that the latter is less controversial. In fact, in arguing that marriage is not a fundamental right, Orontes is trying to overthrow over 50 years of strong Supreme Court precedent. OTOH, by finding that sexual preference is a protected class, the California Supreme Court has broken new legal ground.

This is all kind of specialized legal legal stuff, a bit hard to understand for non-lawyers, especially since lawyers talk about it in shorthand. Please ask me if I have not been clear.

btw, the first one, that it is not the job of the Supreme Court to strike down unconstitutional laws, is so radical that I think I can rightly call it ridiculous. Even conservatives do not argue this, as in the case of the recent Second Amendment Washington gun law decision, which they applaud.

 

[Magic Man]

By law it is illegal to discriminate against people over the age of 35. Yet..... The law itself is discriminatory.

Affirmative action - Wikipedia, the free encyclopedia

Legalaized discrimination based on race.

Again, it is the job of the law to differentiate, not discriminate. If you are using a different definition of "discriminate", then I can't help you, but I'm going by the "treat someone differently simply due to an irrelevant factor" sort of definition.

 

[Magic Man]

Well, not really. All laws discriminate. Some forms of discrimination are constitutional; others not. When the specific discrimination in a specific law is found to be unconstitutional, the Supreme Court strikes it down, as here.

Orontes argues that:
1. It is not the job of the Supreme Court to strike down laws as violating the Constitution.
2. This particular discrimination doesn't violate the Constitution, because list=a]homosexuality is not one of the kinds of discrimination that the Constitution prohibits
marriage is not the kind of thing that the Constitution takes special care to protect.
[/list]


The California Supreme Court has found that homosexuality is a special category entitled to special protection ("Protected class" and that because the Supreme Court has repeatedly held that marriage is a "fundamental right," it triggers special protection. Of these two, I would say that the latter is less controversial. In fact, in arguing that marriage is not a fundamental right, Orontes is trying to overthrow over 50 years of strong Supreme Court precedent. OTOH, by finding that sexual preference is a protected class, the California Supreme Court has broken new legal ground.

This is all kind of specialized legal legal stuff, a bit hard to understand for non-lawyers, especially since lawyers talk about it in shorthand. Please ask me if I have not been clear.

btw, the first one, that it is not the job of the Supreme Court to strike down unconstitutional laws, is so radical that I think I can rightly call it ridiculous. Even conservatives do not argue this, as in the case of the recent Second Amendment Washington gun law decision, which they applaud.

Ok, so the problem is the use of "discrimination", then. If you are using a different definition of it, sure, all laws discriminate. If you are using the same definition we use when saying that people shouldn't discriminate against homosexuals, then law is not supposed to discriminate. There are different definitions of the word, and it seems to me that Orontes is equivocating to make a point.

 

[Orontes]

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I didn't say it was a legal document. My post was in response to your statement about how the two sides of the American Revolution would have answered the question about how law is determined.

Good. We agree the Declaration isn't a legal document. As to where the revolutionaries and loyalists differed on law, it was over whether one is bound by a law or political process one does not inform or participate in.

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...which they felt was a contravention of their innate rights.

Right

...because they felt they had the innate right to self-determination.

Right

Yes... now.

Good we agree again. If the Constitution is the foundational law of the U.S. then it is the bedrock for legal appeal, and of course the source of the Constitution were/are the people. Thus, the power is ultimately invested in the people.

I disagree. Natural law entails an appeal to ethics. Some forms of ethics are based in metaphysics and religion, others are not.

OK, let's see if I can bring some agreement. Natural law does entail appeals to ethics, but natural law is not simply an assertion on the good. Natural law doesn't exist in a vacuum. Natural law exists because there is a law giver. This is God. This is why the verbiage of the Declaration includes statements like: "the separate and equal station to which the Laws of Nature and of Nature's God entitle them " and "(men) are endowed by their Creator with certain unalienable Rights". Natural law for the Founders was necessarily tied to a metaphysical positioning.


[/size]

Perhaps this is more an indication that the Koran is not a source of natural rights than it is an indication that natural rights don't carry legal force.

Now... if someone claimed common law precedent as their justification, that quite possibly would convince the judge, and when the chain of precedent is traced back to their beginnings, I believe you'll find that much of common law was originally based on interpretations of natural rights.

Well, Islam has its own natural law tradition that can be found in Sharia Jurisprudence. Regardless, if you know of a legal case were an appeal to natural law was successfully used to trump positive law I would be interested.

Note: Common law is positive law, not natural law. I would agree that the theoretical wherefores behind why a judgment moves one way over another are often traceable to religious/moral sentiments. Thus, my discussion earlier in the thread about rape being made illegal because of moral objections.

Yes... the Declaration of Independence mentions that: the power of a government is derived from the consent of the governed..

Right

(A)nd the purpose of a government is to secure the innate rights of the people.

That would be a natural law position.

 

[Orontes]

It's not a parting shot. It's a statement that I don't expect you to grasp. You are too entrenched in your bias to see things at all objectively. It is not emotive. I wasn't insulting you. I was just describing your arguments to this point. The saddest part is just that you practice law without grasping the fundamentals of it.

No. Your farewell post and the one above are simple hostility void of substance.

And this demonstrates your lack of understanding of the law quite clearly. The law differentiates. It doesn't (by definition) discriminate. American law by definition seeks to not discriminate.

Alas.

Ok, so the problem is the use of "discrimination", then. If you are using a different definition of it, sure, all laws discriminate.

Yes they do. Discrimination in legal parlance refers to the base distinction and preference of one thing over another. Thus voting rights laws discriminate against minors.

 

[Orontes]

Well, not really. All laws discriminate.

Quite so.

Orontes argues that:
1. It is not the job of the Supreme Court to strike down laws as violating the Constitution.

That is not what I have argued. I have argued that it is not the role of judges to invent rights. Rights creation is the domain of the legislature and the people. I agree substantially with Justice Baxter's dissent:

"But a bare majority of this court, not satisfied with the pace of democratic change, now abruptly forestalls that process and substitutes, by judicial fiat, its own social policy views for those expressed by the People themselves. Undeterred by the strong weight of state and federal law and authority the majority invents a new constitutional right, immune from the ordinary process of legislative consideration. The majority finds that our Constitution suddenly demands no less than a permanent redefinition of marriage, regardless of the popular will."​

"Nothing in our Constitution, express or implicit, compels the majority's startling conclusion that the age-old understanding of marriage—an understanding recently confirmed by an initiative law—is no longer valid. California statutes already recognize same-sex unions and grant them all the substantive legal rights this state can bestow. If there is to be a further sea change in the social and legal understanding of marriage itself, that evolution should occur by similar democratic means. The majority forecloses this ordinary democratic process, and, in doing so, oversteps its authority."

"[T]he majority's approach has removed the sensitive issues surrounding same-sex marriage from their proper forum—the arena of legislative resolution—and risks opening the door to similar treatment of other, less deserving, claims of a right to marry. By thus moving the policy debate from the legislative process to the court, the majority engages in faulty constitutional analysis and violates the separation of powers."

"If such a profound change in this ancient social institution is to occur, the People and their representatives, who represent the public conscience, should have the right, and the responsibility, to control the pace of that change through the democratic process....The majority's decision erroneously usurps it."

"The majority has violated these principles. It simply does not have the right to erase, then recast, the age-old definition of marriage, as virtually all societies have understood it, in order to satisfy its own contemporary notions of equality and justice."​

In fact, in arguing that marriage is not a fundamental right, Orontes is trying to overthrow over 50 years of strong Supreme Court precedent. OTOH, by finding that sexual preference is a protected class, the California Supreme Court has broken new legal ground.

Per any dubbed right of marriage: regardless one's belief such exists or no (and stare decisis is simply an appeal to prudence, it cannot equate to a justification of principle, which were it not the case, would mean Plessy etc. should never have been overturned.) such does not assist gay advocates as the meaning of marriage, per the law, has been cross gender, not same gender. Gay couple joining is not marriage, but something else. If it were to be admitted as an alternate form of marriage, then the democratic process must be adhered to in making that determination. To quote yet again from a Supreme Court dissenting opinion:

"The California Constitution says nothing about the rights of same-sex couples to marry. On the contrary, as the majority concedes, our original Constitution, effective from the moment of statehood, evidenced an assumption that marriage was between partners of the opposite sex. Statutes enacted at the state’s first legislative session confirmed this assumption, which has continued to the present day."​

"The concept of same-sex marriage was unknown in our distant past, and is novel in our recent history, because the universally understood definition of marriage has been the legal or religious union of a man and a woman."​

 

[Majin Buu]

Wow!!! I think this is the first time I've actually fallen asleep in the middle of a sentence! Counselor, don't you think it wise for the Mormons to remain silent on the issue of Marriage, gay or straight.

 

[Magic Man]

No. Your farewell post and the one above are simple hostility void of substance.

Nope. They are statements. I have tried to explain why several times now, but it doesn't get through, so I just stated them again to make sure.

Alas.



Yes they do. Discrimination in legal parlance refers to the base distinction and preference of one thing over another. Thus voting rights laws discriminate against minors.

Fine, but then you're using a different definition of "discrimination". You originally said it as "By definition, law discriminates", implying that discrimination is ok in any form. Discrimination based on sexuality is not an acceptable form of discrimination even according to the laws. You were equivocating, using the word "discrimination" in one context to apply to a different context where the same meaning was not accurate.

For instance, there is a good reason voting rights discriminate against minors. I was trying to show the difference between acceptable discrimination and unacceptable discrimination (the usual connotation of "discrimination").

 

[madhatter85]

Universal Declaration of Human rights Article 16 States:

Article 16.

• (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Family: Dictionary.com

1.parents and their children, considered as a group, whether dwelling together or not.

 

[Orontes]

Nope. They are statements. I have tried to explain why several times now, but it doesn't get through, so I just stated them again to make sure.
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If I have put forward any argument that is illogical demonstrate the invalidity via the premises and conclusion(s). If you cannot do so, then you charge is simply a bald assertion and therefore vacuous.

Fine, but then you're using a different definition of "discrimination". You originally said it as "By definition, law discriminates", implying that discrimination is ok in any form. Discrimination based on sexuality is not an acceptable form of discrimination even according to the laws. You were equivocating, using the word "discrimination" in one context to apply to a different context where the same meaning was not accurate.

For instance, there is a good reason voting rights discriminate against minors. I was trying to show the difference between acceptable discrimination and unacceptable discrimination (the usual connotation of "discrimination").

My statement was and is "law by definition discriminates". It makes no value judgement on the discrimination itself. Whether a person agrees with the direction of that discrimination is distinct from the fact that law itself discriminates by the very act of distinguishing between legal and illegal/non-legal. Voting rights are a simple example. Whether voting rights do or do not apply to 17 year olds, property owners, women, slaves etc and whether one agrees or disagrees with the line drawn by the law, the discrimination and one's agreement or disabreement with that discrimination are distinct. You need to rise above this argumentative penchant to oppose every statement and actually consider the point being made, which in this case is really quite mundane.

 

[madhatter85]

I wish i could frubal you more Orontes

 

[Magic Man]

If I have put forward any argument that is illogical demonstrate the invalidity via the premises and conclusion(s). If you cannot do so, then you charge is simply a bald assertion and therefore vacuous.

I can. You just don't seem to be able to see the obvious, and I'm tired of trying to show it to you.

My statement was and is "law by definition discriminates". It makes no value judgement on the discrimination itself. Whether a person agrees with the direction of that discrimination is distinct from the fact that law itself discriminates by the very act of distinguishing between legal and illegal/non-legal. Voting rights are a simple example. Whether voting rights do or do not apply to 17 year olds, property owners, women, slaves etc and whether one agrees or disagrees with the line drawn by the law, the discrimination and one's agreement or disabreement with that discrimination are distinct. You need to rise above this argumentative penchant to oppose every statement and actually consider the point being made, which in this case is really quite mundane.

Yes, it does make a value judgement. You can play dumb, and pretend that you didn't mean it like that, but it is pretty clear that you know exactly what your words mean.

 

[Magic Man]

Universal Declaration of Human rights Article 16 States:



Family: Dictionary.com

1.parents and their children, considered as a group, whether dwelling together or not.

Great job! Now, where exactly does that specify a mother and father, instead of a mother and mother or father and father? I must have missed that part.

 

[9-10ths_Penguin]

Universal Declaration of Human rights Article 16 States:



Family: Dictionary.com

1.parents and their children, considered as a group, whether dwelling together or not.

I notice that the declaration makes no exception for same-sex families. I also notice subsection 1 of Article 16:

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

 

[Autodidact]

Universal Declaration of Human rights Article 16 States:

Quote:

Article 16.

• (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Family: Dictionary.com

1.parents and their children, considered as a group, whether dwelling together or not.

Exactly, madhatter. My family, consisting of my children and their parents, considered as a group, is the natural and fundamental unit of society and is entitled to protection by society and the state. That protection includes the parent's right to marry.

 

[Orontes]

If I have put forward any argument that is illogical demonstrate the invalidity via the premises and conclusion(s). If you cannot do so, then you charge is simply a bald assertion and therefore vacuous.

[/font]

I can. You just don't seem to be able to see the obvious, and I'm tired of trying to show it to you.

And so the bald assertion remains unsupported and thus vacuous.

My statement was and is "law by definition discriminates". It makes no value judgement on the discrimination itself. Whether a person agrees with the direction of that discrimination is distinct from the fact that law itself discriminates by the very act of distinguishing between legal and illegal/non-legal. Voting rights are a simple example. Whether voting rights do or do not apply to 17 year olds, property owners, women, slaves etc and whether one agrees or disagrees with the line drawn by the law, the discrimination and one's agreement or disabreement with that discrimination are distinct. You need to rise above this argumentative penchant to oppose every statement and actually consider the point being made, which in this case is really quite mundane.

Yes, it does make a value judgement. You can play dumb, and pretend that you didn't mean it like that, but it is pretty clear that you know exactly what your words mean.

Alas, reading the above indicates either a truly provincial understanding of English, which no doubt is due to the loss of any Classical Education Tradition in the U.S., or it is an argumentativeness run amuck. The statement "law by definition discriminates" is a categorical. It is correct. It is also a mundane point. Much like the inability to grasp the meaning of rhetoric (also demonstrated in this thread) this posting behavior reminds me of fundamentalists, who if they see a statement on the Christian myth or the Christian cult immediately assume a kinship to Mount Olympus or Aum Shinri Kyo. I really think it would be better to step back from any normal visceral reactions and attempt to see what the other poster's point may actually be.