Tilted Forum Project Discussion Community - View Single Post - New York's same-sex marriage ban struck down

smooth · 02-05-2005, 12:00 AM

Manx,

As incorrect as Dawsig is in his opinion regarding the linkage between "traditional" families and crime rates, he appears to be correct on at least some of the language the US Supreme Court's majority opinion claims in regard to encouraging child bearing and family rearing as a compelling state interest.

The dissenting opinion, however, in Bowers v. Hardwick (1986) claimed "We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. [T]he concept of privacy embodies the moral fact that a person belongs to himself and not others nor to society as a whole."

That was the dissenting opinion, however, and was not established as the correct view until about 15 years later in Lawrence v. Texas (2003).

All that said, the Supreme Court has so far recognized that stretching back into common law England, our laws have recognized the importance of child-bearing and rearing and established punishments for sexual acts not intended to procreate. Not until the late 19th century, however, has there been a distinction between hetero and homosexual acts that were done without the purpose of procreation.

Sodomy laws, for example, were actually aimed at married couples who performed non-procreational acts of sex in the bedroom. Although rarely punished, mainly because the complaining party was also considered an accomplice in the act according to English common law.

The fact remains, however, that the courts agree there exists a compelling state interest to regulate marriage--but the reasons vary. Sometimes due to procreation and child-rearing, as our common law heritage attests to, but sometimes just to uphold the moral opinion of the people, as Scalia and Thomas argue in their dissenting opinions of the case I referenced above.

Whether homosexuals can or can not procreate, adopt, or adequately rear children is a more profitable discussion, in my opinion, since that is sometimes the legal hinge these marriage rights are being denied upon--at least by the people within certain states. What they have argued is that the right to privacy is limited to matters of "family, marriage, or procreation." But now the argument has changed to propose that homosexual acts (and marriage rides in on the tailcoats, even though O' Conner tried to squelch it while concurring with the majority) fall under equal protection. While religious reasoning may be the underlying logic of the justices, it certainly can not be stated in such terms jurisprudentially.

Force their hand.

02-05-2005, 12:00 AM	#64 (permalink)
smooth Junkie Location: Right here	Manx, As incorrect as Dawsig is in his opinion regarding the linkage between "traditional" families and crime rates, he appears to be correct on at least some of the language the US Supreme Court's majority opinion claims in regard to encouraging child bearing and family rearing as a compelling state interest. The dissenting opinion, however, in Bowers v. Hardwick (1986) claimed "We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. [T]he concept of privacy embodies the moral fact that a person belongs to himself and not others nor to society as a whole." That was the dissenting opinion, however, and was not established as the correct view until about 15 years later in Lawrence v. Texas (2003). All that said, the Supreme Court has so far recognized that stretching back into common law England, our laws have recognized the importance of child-bearing and rearing and established punishments for sexual acts not intended to procreate. Not until the late 19th century, however, has there been a distinction between hetero and homosexual acts that were done without the purpose of procreation. Sodomy laws, for example, were actually aimed at married couples who performed non-procreational acts of sex in the bedroom. Although rarely punished, mainly because the complaining party was also considered an accomplice in the act according to English common law. The fact remains, however, that the courts agree there exists a compelling state interest to regulate marriage--but the reasons vary. Sometimes due to procreation and child-rearing, as our common law heritage attests to, but sometimes just to uphold the moral opinion of the people, as Scalia and Thomas argue in their dissenting opinions of the case I referenced above. Whether homosexuals can or can not procreate, adopt, or adequately rear children is a more profitable discussion, in my opinion, since that is sometimes the legal hinge these marriage rights are being denied upon--at least by the people within certain states. What they have argued is that the right to privacy is limited to matters of "family, marriage, or procreation." But now the argument has changed to propose that homosexual acts (and marriage rides in on the tailcoats, even though O' Conner tried to squelch it while concurring with the majority) fall under equal protection. While religious reasoning may be the underlying logic of the justices, it certainly can not be stated in such terms jurisprudentially. Force their hand. __________________ "The theory of a free press is that truth will emerge from free discussion, not that it will be presented perfectly and instantly in any one account." -- Walter Lippmann "You measure democracy by the freedom it gives its dissidents, not the freedom it gives its assimilated conformists." -- Abbie Hoffman Last edited by smooth; 02-05-2005 at 12:14 AM..