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Thread: Marriage Equality Thread

  1. #841
    Five-O Diehard Ute's Avatar
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    Quote Originally Posted by Applejack View Post
    I agree with you that this is a good articulation of the preserving traditional marriage argument. That argument, I think, is a very traditional conservative argument, i.e. "this is the way it has been and that is the way it must remain." (At the end of the video, the speaker says (paraphrasing) "You want to enter into a relationship with another man and that is not a marriage. That is why I think the government should not recognize your relationship as a marriage.") I think the "because that's not the way it is" argument is the most honest articulation of the argument against gay marriage, but I think that argument has lost because there are some clear benefits to changing the definition of marriage (spousal rights, child-rearing rights, etc).
    Utah is one if the states who doomed this argument.

    They went out of their way to include a ban on civil unions as well in amendment 3.

    If they'd allowed civil unions with all the rights and benefits marriage provides it may not have come to this.

  2. #842
    This is the way God really feels about the whole issue:
    Attached Images Attached Images

  3. #843
    Sam the Sheepdog LA Ute's Avatar
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    Quote Originally Posted by Applejack View Post
    I agree with you that this is a good articulation of the preserving traditional marriage argument. That argument, I think, is a very traditional conservative argument, i.e. "this is the way it has been and that is the way it must remain." (At the end of the video, the speaker says (paraphrasing) "You want to enter into a relationship with another man and that is not a marriage. That is why I think the government should not recognize your relationship as a marriage.") I think the "because that's not the way it is" argument is the most honest articulation of the argument against gay marriage, but I think that argument has lost because there are some clear benefits to changing the definition of marriage (spousal rights, child-rearing rights, etc).
    I don't know if you litigate, AJ, but it's good to be able to express your opponent's argument accurately, fully and fairly. Fail! (But I say this with love in my heart.)

    Quote Originally Posted by Diehard Ute View Post
    If they'd allowed civil unions with all the rights and benefits marriage provides it may not have come to this.
    That's what California had before Prop 8 (and still has). A civil union confers all the rights of marriage.

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
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  4. #844
    Quote Originally Posted by LA Ute View Post
    I don't know if you litigate, AJ, but it's good to be able to express your opponent's argument accurately, fully and fairly. Fail! (But I say this with love in my heart.)
    I don't litigate (anymore). I think mine is a pretty fair characterization. Of course there is more in a five minute clip than I can condense to one line (he also talked a lot about the slippery slope to polygamy, but I think that is less than a stellar argument), but his argument is essentially gay marriage is not what "marriage is." Do you disagree?



    Quote Originally Posted by LA Ute View Post
    That's what California had before Prop 8 (and still has). A civil union confers all the rights of marriage.
    Is this true? Civil unions don't confer any Federal benefits (taxation, etc), do they?

  5. #845
    Sam the Sheepdog LA Ute's Avatar
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    Quote Originally Posted by Applejack View Post
    I don't litigate (anymore). I think mine is a pretty fair characterization. Of course there is more in a five minute clip than I can condense to one line (he also talked a lot about the slippery slope to polygamy, but I think that is less than a stellar argument), but his argument is essentially gay marriage is not what "marriage is." Do you disagree?
    I think you were just too reductive.

    Is this true? Civil unions don't confer any Federal benefits (taxation, etc), do they?
    No. I meant under state law. But that was all a state could do at that time under DOMA.

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

  6. #846
    Sam the Sheepdog LA Ute's Avatar
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    A little more on Ryan Anderson's views. I think this exchange shows the nuances in the debate:


    http://dailysignal.com/2014/07/29/ex..._medium=social

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

  7. #847
    Quote Originally Posted by LA Ute View Post
    A little more on Ryan Anderson's views. I think this exchange shows the nuances in the debate:


    http://dailysignal.com/2014/07/29/ex..._medium=social
    Natural law? So it is all about religion after all.

  8. #848
    Quote Originally Posted by sancho View Post
    I was gonna say something about that when you claimed "status quo" was the most honest argument. Seems to me that religion is the most honest argument. Without religious belief, I don't think there would be an argument at all.
    Right. Religious belief is probably the most honest answer in the majority of cases actually. Obviously it's invoked infrequently because it's a pretty sandy foundation for a legal argument.

  9. #849
    Sam the Sheepdog LA Ute's Avatar
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    Quote Originally Posted by Applejack View Post
    Natural law? So it is all about religion after all.
    You're being reductive again. http://plato.stanford.edu/entries/natural-law-ethics/

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

  10. #850
    Quote Originally Posted by LA Ute View Post
    I think you're just obfuscating (from your link):

    To summarize: the paradigmatic natural law view holds that (1) the natural law is given by God;

  11. #851
    that must mean that those who rely on the phrase "the Laws of Nature and of Nature's God entitle them" in the Declaration of Independence as evidence of divine inspiration or religious devotion by the Founders are wrong.

  12. #852
    Quote Originally Posted by concerned View Post
    that must mean that those who rely on the phrase "the Laws of Nature and of Nature's God entitle them" in the Declaration of Independence as evidence of divine inspiration or religious devotion by the Founders are wrong.
    Not sure if this is directed at me, but if it is I never suggested that the Founders were not religious men (although I think there is some debate as to how "devout" some of them were). I also don't have any quibbles with people who have religious objections to gay marriage.

    My only point is that religion/natural law/God's will is an argument that is unlikely to hold up in court. I don't think I'm making a strong statement here.

  13. #853
    Quote Originally Posted by Applejack View Post
    Not sure if this is directed at me, but if it is I never suggested that the Founders were not religious men (although I think there is some debate as to how "devout" some of them were). I also don't have any quibbles with people who have religious objections to gay marriage.

    My only point is that religion/natural law/God's will is an argument that is unlikely to hold up in court. I don't think I'm making a strong statement here.
    Not directed at you or LA ute at all--but a lot of people rely on that phrase as evidence of divine inspiration, and LA Ute appears to be drawing a distinction between religion and natural law, which arguably carries over.

  14. #854
    Sam the Sheepdog LA Ute's Avatar
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    The Declaration was based on natural law. Jefferson and the other Founders were not particularly religious -- mostly deists or heavily influenced by deism -- but (I think the evidence shows) wanted to toss in a reference to divinity. ("Nature's God" was a pretty clever way to do that.) The basic concept of natural law is that mankind simply has rights, they are not given to mankind by government. Religious pundits (notably conservative Catholics) like to refer to natural law because it accords nicely with their world view, but it is not a religious concept. Most of the men who have articulated natural law concepts would be offended by that notion. This is from Wikipedia but I think it's a good summary:

    Natural law, or the law of nature (Latin: lex naturalis), is a system of law that is determined by nature, and so is universal.[1] Classically, natural law refers to the use of reason to analyze human nature — both social and personal — and deduce binding rules of moral behavior from it. Natural law is often contrasted with the positive law of a given political community, society, or state.[2] In legal theory, on the other hand, the interpretation of positive law requires some reference to natural law. On this understanding of natural law, natural law can be invoked to criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself. Some scholars use natural law synonymously with natural justice or natural right (Latin ius naturale),[3] while others distinguish between natural law and natural right.[1]

    Although natural law is often conflated with common law, the two are distinct in that natural law is a view that certain rights or values are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.[4] Natural law theories have, however, exercised a profound influence on the development of English common law,[5][full citation needed] and have featured greatly in the philosophies of Thomas Aquinas, Francisco Suárez, Richard Hooker, Thomas Hobbes, Hugo Grotius, Samuel von Pufendorf, John Locke, Francis Hutcheson, Jean Jacques Burlamaqui, and Emmerich de Vattel. Because of the intersection between natural law and natural rights, it has been cited as a component in the United States Declaration of Independence and the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen. Declarationism states that the founding of the United States is based on Natural law.
    Anyway, AJ, I think it's too facile to relegate Ryan Anderson's argument to religion. (Not that there is anything wrong with basing a political position on religion.) Do you agree with the NY Times writer that when it comes to ideas opposing same-sex marriage, “we need to stamp them out, ruthlessly?”
    Last edited by LA Ute; 07-30-2014 at 01:26 PM.

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

  15. #855
    Quote Originally Posted by LA Ute View Post
    The Declaration was based on natural law. Jefferson and the other Founders were not particularly religious -- mostly deists or heavily influenced by deism -- but (I think the evidence shows) wanted to toss in a reference to divinity. ("Nature's God" was a pretty clever way to do that.) The basic concept of natural law is that mankind simply has rights, they are not given to mankind by government. Religious pundits (notably conservative Catholics) like to refer to natural law because it accords nicely with their world view, but it is not a religious concept. Most of the men who have articulated natural law concepts would be offended by that notion. This is from Wikipedia but I think it's a good summary:
    I don't want to start a debate about what Natural Law is or is not because BORING, but mainstream natural rights theorists have God at the center of the discussion. I refer back to LA's first link to the Stanford Encyclopedia of Philosophy:

    To summarize: the paradigmatic natural law view holds that (1) the natural law is given by God; (2) it is naturally authoritative over all human beings; and (3) it is naturally knowable by all human beings.
    There are some natural rights folks who deny #1 above, but they are in the minority (and of recent vintage):

    Recently there have been nontheistic writers in the natural law tradition, who deny (1)

  16. #856
    Sam the Sheepdog LA Ute's Avatar
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    Quote Originally Posted by Applejack View Post
    I don't want to start a debate about what Natural Law is or is not because BORING, but mainstream natural rights theorists have God at the center of the discussion. I refer back to LA's first link to the Stanford Encyclopedia of Philosophy:

    There are some natural rights folks who deny #1 above, but they are in the minority (and of recent vintage):
    Like I said, lately religious commentators have relied on natural law, but it's just not historically accurate to say that an appeal to natural law is automatically an appeal to religion. But we are getting sidetracked. Do you agree with the NY Times writer that when it comes to ideas opposing same-sex marriage, “we need to stamp them out, ruthlessly?”

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

  17. #857
    Quote Originally Posted by LA Ute View Post
    Anyway, AJ, I think it's too facile to relegate Ryan Anderson's argument to religion. (Not that there is anything wrong with basing a political position on religion.)
    I agree that Ryan Anderson (whom I had never heard of before yesterday) is arguing more than religion. Like I said, he's making two principle arguments:

    1. Gay Marriage "is not marriage," essentially a conservative position (not in the political sense, in the traditional sense).
    2. If we allow gay marriage to constitute "marriage" then we can't justify excluding other unions.

    I disagree with the second argument (there are ways to distinguish) and I don't think that the first carries enough weight (although others may disagree).

    Quote Originally Posted by LA Ute View Post
    Do you agree with the NY Times writer that when it comes to ideas opposing same-sex marriage, “we need to stamp them out, ruthlessly?”


    No.

  18. #858
    Quote Originally Posted by sancho View Post
    Let's try to stick with reputable sources.
    I thought about you when I quoted that. I briefly scanned the Bay Area College of Nursing Philosophy page but couldn't find anything I could use.

  19. #859
    Sam the Sheepdog LA Ute's Avatar
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    Quote Originally Posted by Applejack View Post
    I agree that Ryan Anderson (whom I had never heard of before yesterday) is arguing more than religion. Like I said, he's making two principle arguments:

    1. Gay Marriage "is not marriage," essentially a conservative position (not in the political sense, in the traditional sense).
    2. If we allow gay marriage to constitute "marriage" then we can't justify excluding other unions.

    I disagree with the second argument (there are ways to distinguish) and I don't think that the first carries enough weight (although others may disagree).
    I agree that the second argument is questionable. He expresses the first argument somewhat unskillfully. It's really just another way of saying that the debate is over redefinition of marriage.

    I wonder: If humankind has a natural right to be married, why don't gays have that right? (I'm sure Anderson has an answer.)

    No.
    Good. Then I won't have to challenge you to a duel. (I wasn't sure sancho would agree to be my second, so I was sweating that one a little.)
    Last edited by LA Ute; 07-30-2014 at 06:49 PM.

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

  20. #860
    Quote Originally Posted by sancho View Post
    Let's try to stick with reputable sources.
    Great idea. Let's please keep the Bible and all other religious texts out of this discussion. That will immediately make the discussion easier.

    Quote Originally Posted by Applejack View Post
    I thought about you when I quoted that. I briefly scanned the Bay Area College of Nursing Philosophy page but couldn't find anything I could use.
    Mmm, BACoN.


    Here is the way I feel about the topic:

    1. Marriage is a legal contract providing legal rights which are legally enforceable in a court of law. By law-talking guys.

    2. Religions are welcome to influence and discuss marriages as much and as far as they want to, right out to the edge of their doorways. Beyond that they should hold no influence.

    3. Religious people can discuss and work to influence the rules and laws as far as they want, so long as they recognize the difference between their beliefs and feelings that they believe fulfill their Higher Purposes and will be The Law in the world to come, and those legal ideas and philosophies that control the real world in the here-and-now.

    4. Remember that we do not have a right to not be offended by something, particularly when that something merely exists outside of our own immediate environment (i.e. a married same-sex couple who live three states away and will never, ever cross our path). Because of this we should not take away the rights of another person simply because their right irrationally offends us. (Do not build a straw man against this. Doing so demeans us all).

  21. #861
    Administrator U-Ute's Avatar
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    It seems like there's still a long ways to go...

    Blogger fired over homophonic commentary

  22. #862
    Malleus Cougarorum Solon's Avatar
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    Quote Originally Posted by U-Ute View Post
    It seems like there's still a long ways to go...

    Blogger fired over homophonic commentary
    That story is a head-scratcher.
    Maybe that blogger's boss is just too niggardly to keep him on the payroll.
    σοφῷ ἀνδρὶ Ἑλλὰς πάντα.
    -- Flavius Philostratus, Life of Apollonius 1.35.2.

  23. #863
    Quote Originally Posted by Solon View Post
    That story is a head-scratcher.
    Maybe that blogger's boss is just too niggardly to keep him on the payroll.
    Whoa! I'm telling on you!

    Sent from my SGH-M919 using Tapatalk 2
    "Be a philosopher. A man can compromise to gain a point. It has become apparent that a man can, within limits, follow his inclinations within the arms of the Church if he does so discreetly." - The Walking Drum

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  24. #864

    Here is someone who thinks the Constitution or the bill of rights was based on divine law rather than natural law, or who equates the two.

    The mother of four, who had the rare honor of clerking for two U.S. Supreme Court justices — Clarence Thomas and Samuel Alito — called religious freedom an "American miracle that was the creation of an all-powerful, all-knowing God."

    http://www.deseretnews.com/article/865608441/LDS-attorney-lists-what-Mormons-need-to-know-about-religious-freedom-today.html

  25. #865
    Administrator U-Ute's Avatar
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    Quote Originally Posted by concerned View Post

    Here is someone who thinks the Constitution or the bill of rights was based on divine law rather than natural law, or who equates the two.

    The mother of four, who had the rare honor of clerking for two U.S. Supreme Court justices — Clarence Thomas and Samuel Alito — called religious freedom an "American miracle that was the creation of an all-powerful, all-knowing God."

    http://www.deseretnews.com/article/865608441/LDS-attorney-lists-what-Mormons-need-to-know-about-religious-freedom-today.html
    The battle lines are drawn:

    The effort to restrict the freedom of churches to organize and choose their own leaders free from government intrusion.
    This is a new one for me. My Googling skills couldn't unearth any stories on this one. The goddless lamestream media must be ignoring this important story.

    Discrimination against faiths that want to use private property or to access public property on equal terms with secular groups.
    This is a head scratcher to me too. Did some revival tent get denied a permit or something?

    Efforts to redefine anti-discrimination laws without sufficient corresponding protections for religious freedom.
    I assume this means that they want to make it so that it is OK to discriminate against people on religious grounds - aka: gays. I assume that the only accepted religious grounds would be god fearing Christian ones. Discriminating against Christians by other religions would not be accepted. Especially against Mormons and their quirky 3-headed god.

    Efforts to expunge religion from the public square, like trying to eliminate the words "under God" from the Pledge of Allegiance.
    The fight on this one always cracks me up, but in a sad way. The lack of knowledge on the history of these things by these people who are fighting to "preserve" them is staggering.

    Denial of religious rights to prisoners.
    Another new one on me. The more interesting stories I Googled up had to do with the religious rights of Native Americans in prison with regards to tobacco products and Muslim prisoners and kosher diets. I'm not exactly sure this has to do with Christians or Mormons in particular, unless prisons are refusing to stock caffeine free Diet Coke.

  26. #866
    Sam the Sheepdog LA Ute's Avatar
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    Sigh. I haven't read that piece yet (I can't bring myself to do it) but it looks like she didn't learn how to phrase an argument carefully, despite all that gold-plated clerking experience.

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

  27. #867

  28. #868
    I am really coming to the conclusion that the Supreme Court is going to reverse all the lower court gay marriage fundamental right equal protection cases,on state rights and will of the voters grounds. I think that is why they are issuing all the stays; I don't think it is just to preserve the status quo in the interim.

  29. #869
    Quote Originally Posted by concerned View Post
    I am really coming to the conclusion that the Supreme Court is going to reverse all the lower court gay marriage fundamental right equal protection cases,on state rights and will of the voters grounds. I think that is why they are issuing all the stays; I don't think it is just to preserve the status quo in the interim.
    Interesting. A Supreme Court decision will certainly hinge on Kennedy (although I could see Roberts voting to shoot down Amendment 3). I doubt they will uphold the Amendment just because voters approved it, but I could certainly see them applying rationale-basis review and then saying that essentially anything passes such scrutiny.

    But I'm still not convinced that the Court even takes the case unless there is a Circuit that comes out the other way. The 6th Circuit case hinges on the vote of a very conservative, but very unpredictable judge (he is considered the leading conservative jurist in the circuit, yet was on the first panel to uphold Obamacare). I recently saw a friend of mine who happens to be a gay constitutional law professor in Georgia and he told me that my theory is whack because no matter what else happens, the 11th Circuit is certain to shoot down gay marriage. So there's that.

  30. #870
    Sam the Sheepdog LA Ute's Avatar
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    Quote Originally Posted by concerned View Post
    I am really coming to the conclusion that the Supreme Court is going to reverse all the lower court gay marriage fundamental right equal protection cases,on state rights and will of the voters grounds. I think that is why they are issuing all the stays; I don't think it is just to preserve the status quo in the interim.
    How do you think they'll deal with the "full faith and credit" issues that will result from such a holding? Just punt that to Congress? That's what the Constitution says is supposed to happen, but I am far from an expert on that provision:

    Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
    So if it is a state matter, gay people who want to be married will simply come to CA to tie the knot. It seems to me that Congress can vote to require the states to recognize marriages performed in other states. That would effectively make gay marriage lawful and recognized throughout the USA, but I am OK with that result because it would be democratic, with accountability to the decision-makers.

    "It is only with the heart that one can see rightly; what is essential is invisible to the eye."
    --Antoine de Saint-Exupery

    "Things fall apart; the centre cannot hold."
    --Yeats

    “True, we [lawyers] build no bridges. We raise no towers. We construct no engines. We paint no pictures - unless as amateurs for our own principal amusement. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state.”

    --John W. Davis, founder of Davis Polk & Wardwell

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