"Kevin Gowen" <kgowenNOSPAM@myfastmail.com> wrote in message
news:2p7b0vFh6ku5U4@uni-berlin.de...
> 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.

Another semantic boondoggle. The law to which you refer allows people to
drive, period. I was referring to accessing public roads, specifically.
Assuming you are licensed to drive, I think people are allowed to drive on
public highways because there is no law preventing them from doing so.

> > 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.

As would many, many others.

> > 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.

KG: "Quite an imagination you have there if you think marriage, let alone
same-sex marriage, is a right."
MF: "Marriage is indeed a right, Mr Gowen."
KG: "Sorry, but it is not."
MF: "Sorry, but it is."

> > 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."

Which term exactly is the term of art you are referring to, fundamental
rights, God-given rights? And I believe the term "several states" is an
attempt at quantifying how many states there are, it is a reference to the
fact that they are separate from one another, like joint and several
liability.

> 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!

Na, ah, ah. Meaning is determined by the collective, which is why I win. You
don't win until you get both houses of Congress to pass an amendment by a
2/3 majority (or get 2/3 of the state legislatures to propose an amendment)
and then get 3/4 of the state legislatures to ratify it. Because that is the
only way to make a change to the law that would be able to take on
fourteenth amendment equal protection. Gambare! It ain't gonna happen.

> >>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.

OK, there are lots of stupid lawyers out there, granted. but someone who
just passed the bar 3 years ago? I assumed you would know the rule, can't I
ask the same courtesy from you?

And, after living in San Francisco for 6 years and witnessing several Pride
Parades, Bay to Breakers, Sunday afternoons in Golden Gate Park, etc. I have
to believe public nudity is a constitutional right, so on to your next
example.

> 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?

(sentence fragment alert!) Or at least what law degrees used to mean.

> >>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.

The government doing the right thing while mollifying someone is different
from the government doing the wrong thing while mollifying someone.

> >>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.

Well, the argument is used by plenty of conservatives who have nothing but
straws to clutch.

> > 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.

Interesting. What would your basis have been?

> > 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?

Well, I meant compelling in the sense that it is compelling to me. For the
government's purposes it need only be important (whatever that means.)

Consanguinity is a problem because it results in severely deformed
offspring. Preventing that sounds to me like an important government
interest. The only bad effects that I have heard proposed for same sex
marriages are very subjective statements regarding the morality of the
people involved which is not an important governmental interest.

> > 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?

No it isn't (and this is a difficult point to argue, which is why I
recognize there is a good argument on the other side.) A certain percentage
of the people (we have all heard 10% which I think has been discredited, but
whatever) will be turned away from marriage because *they* are the wrong
gender. The government is saying to those people *you* cannot marry this
person because *you* are the wrong gender. It's difficult to conceptualize
because most disrimination involves only one person. Here there are two so
it is easy to get muddled. Your position (I think) is that the government is
saying to partner A, you cannot marry partner B because partner B is the
wrong gender, but that rule is applied to all of the potential Partner As,
both men and women, equally so where is the discrimination? I'm saying that
the government is saying to Partner A, you cannot marry Partner B because
you Partner A are the wrong gender. I would let any woman who comes to me
marry Partner B, but I will not let *you* marry Partner B because you are a
man. Thus Partner A is being discriminated against based on Partner A's
gender. I think it is the better argument because it focuses on what someone
standing in the shoes of Partner A may or may not do because of their
gender. Simply replace "marry Partner B" with "have this job" and you'll see
my point.

> > 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.

Well, so much for virtually every bit of case law in existence then. It's
only fallacious when the analogy is drawn poorly.

> > 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.

See above.

> 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?

Only a good argument as to whether it is discrimination or not (or at least
a plausible argument, but one with which I disagree). I never said I thought
there were any good "important government interests" out there. I'd love to
consider some though.

> >>>>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

Jeff