necoandjeff wrote:

> "Kevin Gowen" <kgowenNOSPAM@myfastmail.com> wrote in message
> news:2p4te9FgunrvU4@uni-berlin.de...
> 
>>necoandjeff wrote:
>>
>>
>>>"Kevin Gowen" <kgowenNOSPAM@myfastmail.com> wrote in message
>>>news:2p4fp6Fgnl9cU3@uni-berlin.de...
>>>
>>>
>>>>necoandjeff wrote:
>>>>
>>>>
>>>>
>>>>>Kevin, I get your point that marriage is not a fundamental right, but I
>>>>>don't see anything wrong with calling it a right.
>>>>
>>>>Well, I think I have made it clear that I do.
>>>>
>>>>
>>>>
>>>>>Once the legislature
>>>>>decides to allow people to avail themselves of the law that says they
>>>
>>>can
>>>
>>>
>>>>>marry, it becomes a right.
>>>>
>>>>The legislature decides to allow people to avail themselves of the law
>>>>that says they can drive on public roads, but I do not think you would
>>>>say that operating a motor vehicle on a public road is a right. I think
>>>>it is silly to say that the people's availing itself of a law is the
>>>>sine qua non of a right. I avail myself of the law many times a day, but
>>>>I don't fool myself into believing that all those acts are rights.
>>>
>>>
>>>There is a law that affirmatively allows people to drive on public
> 
> roads?
> 
>>At least there is in the state of Florida. We call it Florida Statute
>>322.03.
> 
> 
> Ah, you're talking about licensing drivers. I thought you were referring to
> a law that granted access to the public to public roads. 

Then why did you ask about a "law that affirmatively allows people to 
drive on public roads"? Driving a motor vehicle is not the only access 
to a public road. One can also ride a bicycle, jog, walk, stroll, or loaf.

> In any event, I
> would still say that the ability to obtain a drivers license is a right. 

Yes, I know that is what you would say.

> It
> is a right that has been granted by the state legislature. Like I said, even
> contracts can grant "rights." Lawyers wouldn't typically limit the notion of
> "rights" to fundamental rights, and the non-lawyer population doesn't
> either, which is why I don't think there is anything wrong with Mike saying
> marriage is a right. 

Did he say that? This thread has become such a blur.

> Just as long as he doesn't mean to suggest it is a
> God-given right that nobody can take away. Would you draft a clause into a
> contract saying I hereby waive all rights under this contract, knowing that
> it is a meaningless clause since the contract doesn't grant you any
> fundamental rights? Of course you wouldn't. Or if you would, grab a pen,
> I've got a few pieces of paper I'd like you to sign.

I consider that to be a term of art such "the several states." You may 
have heard that there are more than several states, but we persist in 
referring to the states of the Union as "the several states."

By the way, would that contract have to do with the sale of land in 
Florida? I hate to surprise you, but we actually have a real estate 
market here. I've found it to be quite lucrative.

>>Remember what I said about law school favoring fallacy over sound
>>reasoning? This is a good example. An appeal to "way more people" is not
>>sound reasoning. People who like fancy Latin talk call it "argumentum ad
>>populum." (My favorite fancy Latin talk is "per stirpes")
> 
> 
> Sorry, I haven't actually done the survey. But I stand by my statement. Way
> more people use the word "right" more broadly than people who use it the way
> you apparently do. And meaning in language is determined collectively. We
> win.

Ok. I'll concede this point to you if you concede that people on my side 
"win" because "way more people" oppose the granting of marriage licenses 
to same sex couples. We win!

>>Noted. Is this where I whine about buzzwords and outlines. As you said,
>>I think our disagreement on this point is semantic and relates to our
>>views on the jurisprudential nature of rights. I consider the exemptions
>>you describe above to be entitlements.
> 
> 
> When I go to Japan in Ocober I will be able to claim an exemption for up to
> $80K of my income. Is that an entitlement? 

Yes. Didn't you read what I wrote before?

> I'd say it is a feeble attempt at
> avoiding double-taxation. 

I agree it is feeble...much too small. If I had my way, the exemption 
would have no cap. Well, if I really had my way there would be no 
exemption because no one's income would be taxed.

> In any event, claiming that exemption is a right
> that is granted to me (the me after October anyway) by 26 USCS Section 911.
> And it can also be taken away.

You say right, I say entitlement. (or tomato)


>>Is it SOP to whine about buzzwords and old outlines when making sloppy
>>statements of law in the office and/or before a judge? California is
>>really something.
>>
>>Of course I understand the concepts, but I have no means of knowing
>>whether or not you were mistaken or just being sloppy. Either way,
>>people are watching and they might get the wrong idea! Americans are
>>stupid enough about their rights as it is, the biggest offender being
>>"freedom of speech".
> 
> 
> OK, you caught me being lazy. But I have trouble imagining anyone who passed
> the bar and who would be mistaken in believing that sexual discrimination is
> a per se violation of the fourteenth amendment...

I wouldn't. I've encountered far too many members of the bars of *the* 
*several* *states* who have mistakenly (IMO) believed far more egregious 
things. I know one con law professor who believes that public nudity is 
a constitutional right. (Really) Thus, the idea of a lawyer thinking 
that sexual discrimination is a per se EP violation is not at all hard 
for me to imagine, especially a lawyer from California. Then again, 
maybe my example doesn't work very well if you believe that public 
nudity is a constitutional right. Let me know and maybe I can dig up 
another one.

Surely there are a few Supreme Court justices past and/or present who 
have written opinions that make you wonder how a person with a law 
degree could think such a thing?

>>See above. I have no means of knowing whether or not you were mistaken
>>or just being sloppy.
> 
> 
> Lazy, is the preferred term.

Preferred by the sloppy?

>>Well, at least you aren't making the straw man argument that only a
>>homophobe or religious zealot could support state sovereignty in the
>>granting of marriage licenses.
> 
> 
> That's fine. But state sovereignty doesn't mean "the right to pass
> unconstitutional laws."

Of course.

>>Now that you mention it, my law school was on a street named for a
>>religious zealot whose radical religious views informed his mission for
>>wholesale changes in the laws of the United States. That street is
>>called Martin Luther King Blvd.
> 
> 
> How does "the government wants to pass a law to mollify a bunch of
> homophobes and religious zealots" turn into "religious zealots are
> undesirable people per se?" Or are you bringing up MLK for some other reason
> that is unclear to me?

I was just giving an example of a religious zealot who made a big stink 
until the government mollified him. Right about that time he was getting 
mollified, another man thought that mollification and religious zealotry 
was a bad idea. Then again, James Earl Ray was not a lawyer so maybe you 
would deal with religious zealots in another way.

>>What is the subject of the statement? I was being charitable when I
>>called it a sentence.
> 
> 
> Sentence fragments are common in conversation (and this was quite
> understandable.) Would you prefer that I IRAC the whole issue for you?

No. I was simply being annoying.

>>Good idea. I really don't see what the big deal of a amendment that
>>would be the operational equivalent of the DOMA is. On the other hand, I
>>think an amendment prohibiting states from granting licenses for
>>same-sex marriages would be wrong. I am pretty much in step with the VP
>>on this issue, as he explained yesterday:
>>http://edition.cnn.com/2004/ALLPOLITICS/08/24/cheney.samesex/
>>
>>I do predict that in the states that change their definitions of
>>"marriage", insurance companies will start changing their definition of
>>"insured", but that is the beauty of our free market system.
> 
> 
> This "change the definition of marriage" argument is the most pathetic thing
> I've ever seen. Nobody has been able to come up with a coherent explanation
> as to how "expanding" the definition of marriage would have any effect on
> heterosexuals whatsoever. 

Effect on heterosexual marriage is irrelevant to me as I do not think 
that any such effect is a condition precedent for opposition of same-sex 
marriage. I was simply making a prediction.

> Allow same sex marriages today and one hundred
> years from now heterosexual couples will still be talking about getting
> "married." Did allowing blacks and women to vote change the definition of
> voting?

No, it just gave us Jimmy Carter.

>>I was refering to your earlier sloppy statement about gender
>>discrimination/EP.
> 
> 
> LAZY!!

Ok, so I'm "big boned" or perhaps "undertall"?

  >>Tee hee! Funny how an amendment going one way is "absurd" but a judicial
>>  fiat in your favor is a "recognition."
>>
>>Power to the people! (unless they don't know what's best for them)
> 
> 
> Arguing against an amendment that hasn't been passed and calling it absurd
> is fine. Pointing out that equal protection actually means equal protection
> is also fine. I don't see what is funny at all.

I think it is funny to call tautologies "fine." Hence, "tee hee."

>>>And recognizing that discrimination based on sex is a violation of equal
>>>protection isn't judges amending the constitution by fiat.
>>
>>You know, some people say that. Some people say that judges "recognized"
>>that a right to abortion on demand exists in the Constitution, while
>>others call that a judicial amendment. We obviously disagree on this
>>point as well.
> 
> 
> There's no clear line is there. There are some decisions where I would
> probably agree with you that judges bent the definitions a bit too far to
> get the result they wanted (even thought I may agree with some of the
> results.) 

Same here. For example, I agree with the outcome of _Lawrence v. Texas_, 
but I think that it was wrongly decided.

> But allowing people to form civil unions and then telling them
> that they can't enter into a civil union with the person they chose for no
> other reason than that they happen to be the wrong sex (and not coming up
> with any compelling reason as to why it should be prohibited, as there are
> with things like preventing incestuous marriages, child adult marriages,
> etc.) 

Why is gender not a compelling interest (you mean "important interest", 
right?) while consanguinity is? Why should the state care if relations 
marry?

> seems like a pretty clear case of sexual discrimination to me. Of
> course there is the argument that this isn't sexual discrmination because
> each man is equally free to choose any woman and each woman is equally free
> to choose any man, but it doesn't seem like the better argument to me. 

I think that's a pretty good argument. Both men and women are equally 
restricted, so where is the equal protection violation?

> It's
> a little like saying, well it isn't sexual discrimination to require nurses
> to be women because the hospitals who hire the women have no gender so we
> can't be discriminating against the hospital. 

You've probably heard me say this before, but argument by analogy is 
notoriously fallacious. I avoid it.

> When person A, a man, shows up
> at the courthouse and says "I want to marry this man," the state is saying,
> you can't marry this man because you are not a woman. Women are allowed to
> marry this person but you are not. Sexual discrimination. 

Now reverse all those roles. A woman cannot marry a woman, but men can. 
I don't see the sexual discrimination. The law is equal in its 
application to both men and women. I find your idea of discrimination to 
be a bit odd.

Of course, even if we pretend what you say is true and that law is 
gender discrimination, it's permissible so long as there is an important 
government interest.

> I'd love to
> consider some important government interests in preventing this but I can
> only think of important government interests in supporting it.

But I thought you said both sides had good arguments?

>>>>One of those choice is clearly absurd, but you didn't pick the right
> 
> one.
> 
>>>
>>>The characterizations of them are absurd, I'll grant you that.
>>
>>Indeed. I mean, "recognizing"? Very rich.
> 
> 
> Yes, recognizing. Doesn't seem like much of a stretch to me at all.

One cannot recognize something that is not there. What you probably 
meant to say is "made from whole cloth"

- Kevin