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Source: (consider it) Thread: Dead Horses: U.S. Supreme Court Decision
Arabella Purity Winterbottom

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And Roberts is nothing next to Scalia, who, as Croesus mentioned upthread, was quite unhinged, and wrote what can only have come straight out of his personal feelings rather than the law.

Thomas' dissent was just weird and desperate.

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Barnabas62
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quote:
Originally posted by orfeo:
If the highest judge in the land doesn't understand the basic legal construction of marriage, is it any wonder that large numbers of conservative Americans are displaying extraordinary degrees of stupid in their reactions to the Supreme Court decision?

Recognising the constitutional differences, I don't think extraordinary degrees of stupid (about the basic legal construction of marriage) are confined to conservative Americans. Registrars legalise, religious institutions solemnise. Legalisation and solemnisation, which work to different understandings and standards, get mixed up together, even in the liturgy, when folks marry in churches which have the authority to do both.

And IME, lots of folks in the UK don't really get that either.

Mind you, Roberts' misunderstanding was pretty jaw-dropping.

[ 28. June 2015, 08:06: Message edited by: Barnabas62 ]

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Gee D
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I know nothing of US judicial method, but if a seemingly simple question with what appears to be an obvious answer were directed to me, I'd be wondering what the question 2 down the track is going to be. I'd be suspicious that the answer I gave to the simple question would be used to push my submissions in a direction I'd rather they did not take.

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Doublethink.
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I do find it a bit weird that these kind of issues are often resolved in the US by declaring them constitutional or unconstitutional - but almost never by amending the constitution. Honestly, it is obvious the founding fathers were mainly concerned the rights of white, straight, men. It often feels as if the supreme court is trying to say "actually, you could have done this all along, but we've only just noticed" when they are in fact changing the law. But there is nothing wrong with changing the law, why create an artifice that you are not doing so ? It is almost as if the constitution is being treated as revealed scripture, constantly reinterpreted but the text itself altered but once in a blue moon, the amendments often being cited like the new testament.

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Arethosemyfeet
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quote:
Originally posted by Doublethink.:
It is almost as if the constitution is being treated as revealed scripture, constantly reinterpreted but the text itself altered but once in a blue moon, the amendments often being cited like the new testament.

I've often commented in the past on the parallels in American culture between the way many Americans treat the Bible and the way they treat the constitution - as the end, rather than the beginning of a discussion. I've seen too many discussions of gun control get hung up on the 2nd amendment rather than actually debating whether gun control is a good idea. "It's unconstitutional" isn't an argument for something being right or wrong, and it's too often treated as such. I suspect the draconian amendment procedure is to blame, though naturally it can also be credited with protecting some essential liberties.
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Net Spinster
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I think there is some serious doubt that the Roberts interaction happened given the site it was posted on is a satire site (and the interchange isn't in the transcripts).

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lilBuddha
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quote:
Originally posted by Doublethink.:
I do find it a bit weird that these kind of issues are often resolved in the US by declaring them constitutional or unconstitutional - but almost never by amending the constitution. Honestly, it is obvious the founding fathers were mainly concerned the rights of white, straight, men. It often feels as if the supreme court is trying to say "actually, you could have done this all along, but we've only just noticed" when they are in fact changing the law. But there is nothing wrong with changing the law, why create an artifice that you are not doing so ? It is almost as if the constitution is being treated as revealed scripture, constantly reinterpreted but the text itself altered but once in a blue moon, the amendments often being cited like the new testament.

Wait, didn't Jesus write the constitution? And, of course, the second amendment.

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Palimpsest
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The problem with rewriting the constitution is you don't go far down that path before some really ugly fights happen. Should states with small populations have as many representatives as much larger states? Why, other than it being part of an original compact.

Does the Bill of Rights apply or is it necessary to abandon it for "security"?

Doing things by re-interpretation or by single amendments has disadvantages, but it damps the change. This is nothing new. When the Athenians set up democracy they used demes to create a district layer. To make things work out, a lot of people from Athens were arbitrarily assigned to rural demes.

I suppose this could be amusing -- Everyone in Brooklyn be considered a citizen of South Dakota, and Nebraska gets San Francisco. Still, I doubt it would work.

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Bibliophile
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Interesting angle on the story here that it seems has not been much covered, the future of the tax exempt status of religious institutions that don't agree with this week's ruling

quote:
During oral arguments, Justice Samuel Alito compared the case to that of Bob Jones University, a fundamentalist Christian university in South Carolina. The Supreme Court ruled in 1983 the school was not entitled to a tax-exempt status if it barred interracial marriage.

Here is an exchange between Alito and Solicitor General Donald B. Verrilli Jr., arguing for the same-sex couples on behalf of the Obama administration.

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax­exempt status if it opposed interracial marriage or interracial dating.

So would the same apply to a 10 university or a college if it opposed same­-sex marriage?

General Verrilli: You know, ­­I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is­­ it is going to be an issue.

http://www.getreligion.org/getreligion/2015/4/29/lo-a-washington-post-scribe-did-get-the-religious-liberty-angle-in-the-supre me-court-story

So the next step

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Arethosemyfeet
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You mean the fundies might be forced to render unto Caesar what belongs to Caesar? Excuse me while I try and summon the will to care a jot... no, can't manage it.

[ 28. June 2015, 18:57: Message edited by: Arethosemyfeet ]

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Bibliophile
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quote:
Originally posted by Arethosemyfeet:
You mean the fundies might be forced to render unto Caesar what belongs to Caesar? Excuse me while I try and summon the will to care a jot... no, can't manage it.

Well if all religious institutions were to lose tax exempt status you would have a point. However if it is only those institutions that oppose gay marriage that lose such status then effectively you have a situation where religious groups are being fined for holding opinions the government doesn't agree with.
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lilBuddha
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No, it is that they are playing both sides of the field.
Pick one and play it.

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Arethosemyfeet
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quote:
Originally posted by Bibliophile:
quote:
Originally posted by Arethosemyfeet:
You mean the fundies might be forced to render unto Caesar what belongs to Caesar? Excuse me while I try and summon the will to care a jot... no, can't manage it.

Well if all religious institutions were to lose tax exempt status you would have a point. However if it is only those institutions that oppose gay marriage that lose such status then effectively you have a situation where religious groups are being fined for holding opinions the government doesn't agree with.
It doesn't affect churches though, does it? And why are you so concerned about this now, and not with regard the pre-existing judgement as regards interracial marriage? Is it because it's a bigotry you happen to subscribe to that's being threatened in this instance?

In any case, tax exemptions are offered for things that society wants to promote. Usually things like healthcare, education and so forth. Deciding that bigotry is not something we want promoted is not a fine, it's the revocation of a privilege.

[ 28. June 2015, 19:50: Message edited by: Arethosemyfeet ]

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saysay

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I've been arguing in favor of gay marriage since I was seven; I've known ministers who were arrested back in the day for performing commitment ceremonies for same sex couples in states where they were forbidden from marrying.

This decision is going to have a huge likely negative impact on education, higher education, day care, health care, etc.

I'm sure the lawyers will have fun. But for everybody else, the fight is likely to get really ugly really quickly.

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Bibliophile
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quote:
Originally posted by Arethosemyfeet:
quote:
Originally posted by Bibliophile:
quote:
Originally posted by Arethosemyfeet:
You mean the fundies might be forced to render unto Caesar what belongs to Caesar? Excuse me while I try and summon the will to care a jot... no, can't manage it.

Well if all religious institutions were to lose tax exempt status you would have a point. However if it is only those institutions that oppose gay marriage that lose such status then effectively you have a situation where religious groups are being fined for holding opinions the government doesn't agree with.
It doesn't affect churches though, does it? And why are you so concerned about this now, and not with regard the pre-existing judgement as regards interracial marriage? Is it because it's a bigotry you happen to subscribe to that's being threatened in this instance?

In any case, tax exemptions are offered for things that society wants to promote. Usually things like healthcare, education and so forth. Deciding that bigotry is not something we want promoted is not a fine, it's the revocation of a privilege.

Who said I wasn't concerned about the judgement in the Bob Jones case. I don't agree with the position they held on interracial marriage but the issue of the government subsidising religious opinions it favours are the same.

In both cases the issue is government subsidising theological opinions it likes, which is moving close the the legal establishment of certain religious opinions.

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Barnabas62
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I'm pretty sure this will be a separate issue in the selection of GOP Presidential candidate and in the 2016 Presidential election.

Here is a specimen link.

And here is a key line from Jeb Bush's statement on his website.

quote:
In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.
Decoded, that means, "Oh OK, but don't mess about with tax relief."

And on this issue, he is likely to be a moderate voice among the GOP candidates. So there will be no change to tax status any time soon, given who holds the votes in Congress. And I guess that will continue if, as seems likely because of the demographics, the US elects another Democratic President. Also for demographic and district boundary reasons, the House of Representatives seems likely to remain in GOP hands post 2016.

For interracial marriage however, denial of the OK-ness of that is "a religious freedom too far". Will same sex marriage go down that road? Maybe. Eventually. But not any time soon. Those are the US political realities, I think.

[ 28. June 2015, 21:33: Message edited by: Barnabas62 ]

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mousethief

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quote:
Originally posted by Bibliophile:
In both cases the issue is government subsidising theological opinions it likes, which is moving close the the legal establishment of certain religious opinions.

So, the government enforcing discrimination is NOT legal establishment of religious opinions, but the government prohibiting discrimination IS?

It seems to me that the government's job is to ensure its citizens are treated equally under the law, as much as that is possible, with exceptions only under very tightly controlled circumstances. Clearly that is going to be in favor of people opposed to discrimination, and opposed to people in favor of discrimination, whether for religious reasons or for some other reason. But the default position has to be minimizing discrimination. And the only arguments put forth for discrimination in this case were -- guess what? -- religious reasons. Upholding discrimination in marriage would be pandering to a certain religious viewpoint. Striking down discrimination is the default mode, and there is no need to argue religious anything in order to promote it.

In other words, you have it 180° backward.

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SvitlanaV2
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quote:
Originally posted by Soror Magna:
quote:
Originally posted by SvitlanaV2:
It won't have an effect upon individual marriages, but it obviously creates a re-definition of marriage in the public sphere. This surely has psychological ramifications both for those who are for and against. ...

I'm curious about the psychological ramifications of marriage equality that apparently won't affect individual marriages. How's that work?
The usual argument is that if SSM is legalised then your own straight marriage won't suddenly be headed for the divorce courts. But it'll obviously be the case that the popular current perception of marriage as something existing inevitably between one man and one woman will change. Assumptions about the language, if nothing else, will gradually change. E.g., a 'wife' will not necessarily be assumed to have a husband. A 'housewife' will no longer automatically be a woman who lives in an old-fashioned domestic set-up with a male breadwinner. This may not affect individual housewives in straight marriages, but over time it might change our associations with the word 'housewife', and may make religious conservatives less automatically in favour of the stay-at-home mother.

quote:
Originally posted by mousethief:
Did allowing mixed-race marriages change the definition of marriage? Or just broaden the category of couples who could participate?

A good question, but a particularly American one. I doubt that mixed-race marriages have been illegal for most of history. The Americans were surely aware that mixed-marriages occurred early during their colonisation of the USA. AFAICS they were outlawed not because they were primarily deemed immortal or abnormal, but because they threatened to undermine the divide and rule policy that became necessary as a way of strengthening white rule and dominance in the colonies. And not all slave colonies chose to forbid mixed marriages; some just tried to make them deeply socially unacceptable.

Anyway, even the ancient Israelites, who were supposed to remain pure, entered into mixed-marriages. I'm not sure that the Bible categorises these marriages as different in nature from marriages between Jews. One big concern seems to have been that foreign wives would lead Jewish husbands away from the true God. The assumed power of women to influence men in matters of religion is quite interesting in the Bible....

Of course, marriage wasn't only limited to couples, either. It may be hard to argue in our brave new world that broadening the category of people who can enter marriage is only valid for couples. The current assumption is that the fight for legal SSM between couples reflects liberal social values, but if we want to make SSM a value that's attractive to conservatives too then it must be realised that some conservatives believe that adults can also consent to polygamous relationships, for example, and that the partners in such relationships also deserve protection and social recognition. To deny that possibility would be to further stigmatise Islam - an unwise thing to do in Europe and in the USA, where the Muslim populations are growing.

One possibly good thing about SSM for other people is that it may eventually force polygamous Muslims or Mormon sects, for example, to becoming more accepting of homosexuality, since it could provide a stepping stone and theoretical context for their own struggle for recognition. .

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Bibliophile
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quote:
Originally posted by mousethief:
quote:
Originally posted by Bibliophile:
In both cases the issue is government subsidising theological opinions it likes, which is moving close the the legal establishment of certain religious opinions.

So, the government enforcing discrimination is NOT legal establishment of religious opinions, but the government prohibiting discrimination IS?
I'm not suggesting that the government policy itself is based on theology. I was making a specific reference to the question of tax exempt status and granting tax exempt status to some religious institutions but not to others based on their theological opinions.
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lilBuddha
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It isn't based om their theological opinions.
It is based on the government playing by the governments rules.
If religious organisations want to play by different rules, they are free to.
But if you do not wish to play, get your own ball.

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Bibliophile
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quote:
Originally posted by lilBuddha:
It isn't based om their theological opinions.
It is based on the government playing by the governments rules.
If religious organisations want to play by different rules, they are free to.
But if you do not wish to play, get your own ball.

If the government denies tax exempt status to religious institutions whose theology is opposed to same sex marriage (or for that matter interracial marriage) whilst at the same time granting such status to religious institutions whose theology supports such marriages then the government is clearly granting or withholding tax exempt status based
on an institutions theological opinions.

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orfeo

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It is hardly shocking that the State views State law as overriding whatever version of "God's law" a church claims to espouse. Frankly, the USA bends over backwards to accommodate religions a lot more than most places would.

But there have to be limits. And if those limits are where a church's views are actively impinging on the rights of other people, sounds pretty good to me.

Churches trying to be a law unto themselves, separate from the world, is precisely what got us into decades of child abuse not being reported to the police. Seriously. I've been thinking about this very issue for the last few days. When churches believe they are outside the law of the land, because they are under "God's law" and part of some spiritual kingdom, it can not be said that this is some kind of improvement. It takes governance out of the hands of imperfect, fallible human beings who are subject to public scrutiny and puts in the hands of imperfect, fallible human beings who are secretive and not accountable to anyone other than themselves.

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lilBuddha
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quote:
Originally posted by Bibliophile:
quote:
Originally posted by lilBuddha:
It isn't based om their theological opinions.
It is based on the government playing by the governments rules.
If religious organisations want to play by different rules, they are free to.
But if you do not wish to play, get your own ball.

If the government denies tax exempt status to religious institutions whose theology is opposed to same sex marriage (or for that matter interracial marriage) whilst at the same time granting such status to religious institutions whose theology supports such marriages then the government is clearly granting or withholding tax exempt status based
on an institutions theological opinions.

If this were an archery contest, your miss would endanger the spectators.
Churches wish to pick and choose which rules they observe and yet they wish all the benefits.
A church is free to discriminate however they wish. Why should the government, which is not, be forced to subsidise that discrimination?

[ 29. June 2015, 00:31: Message edited by: lilBuddha ]

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Bibliophile
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quote:
Originally posted by lilBuddha:
quote:
Originally posted by Bibliophile:
quote:
Originally posted by lilBuddha:
It isn't based om their theological opinions.
It is based on the government playing by the governments rules.
If religious organisations want to play by different rules, they are free to.
But if you do not wish to play, get your own ball.

If the government denies tax exempt status to religious institutions whose theology is opposed to same sex marriage (or for that matter interracial marriage) whilst at the same time granting such status to religious institutions whose theology supports such marriages then the government is clearly granting or withholding tax exempt status based
on an institutions theological opinions.

If this were an archery contest, your miss would endanger the spectators.
Churches wish to pick and choose which rules they observe and yet they wish all the benefits.
A church is free to discriminate however they wish. Why should the government, which is not, be forced to subsidise that discrimination?

First of all I should correct myself and say that a tax exemption is not a subsidy. A subsidy is when government money is passed to an individual or organisation. A tax exemption if when a government decides to refrain from taking an individual's or organisation's own money away from them.

The government is not 'forced' to grant tax exempt status to anyone. In this case we are talking about the government taking money or not from religious organisations based on those religious organisations' theological principles.

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Golden Key
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BTW, I didn't see a link here to the court's opinion. Here it is, in PDF form--and it's long.

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Palimpsest
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quote:
Originally posted by Bibliophile:
[In both cases the issue is government subsidising theological opinions it likes, which is moving close the the legal establishment of certain religious opinions.

This already happened over a century ago, e.g. the Mormons in Utah giving up polygamy for statehood. Nothing new here.
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mousethief

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I don't think ANY church should be tax-exempt. Solves the whole problem, and gets the government out of the business of deciding the issue.

Of course I also don't think any business should be tax-exempt. Which I suppose makes me a liberal.

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Palimpsest
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and for entertainment value; here's the Bob Jones Univeristy statemetn ont Supreme Court Marriage decision

You'll note it doesn't talk about their earlier oppression by the Supreme Court on the religious right to tax deductions while prohibiting inter-racial marriage.

No one is taking about rolling back that 1981 decision. Not only is a ban on inter-racial marriage repugnant to most today, Bob Jones University issued an apology for racist policies in 2008

So maybe be in 25 years or so they're apologize again.

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Brenda Clough
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If you took the tax exemption from churches you would see many of them in the US collapse. At this point churches (and non profits, and charities, and even until recently the NFL) are utterly dependent on the tax deduction and its attendants (like not paying real estate taxes). If you really wanted ot get rid of it the thing to do would be to phase it out, over a decade or so.

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lilBuddha
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quote:
Originally posted by Bibliophile:
First of all I should correct myself and say that a tax exemption is not a subsidy. A subsidy is when government money is passed to an individual or organisation. A tax exemption if when a government decides to refrain from taking an individual's or organisation's own money away from them.

Don't care whether you call it drab or khaki, the uniform fits the same.

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mousethief

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quote:
Originally posted by Brenda Clough:
If you took the tax exemption from churches you would see many of them in the US collapse. At this point churches (and non profits, and charities, and even until recently the NFL) are utterly dependent on the tax deduction and its attendants (like not paying real estate taxes). If you really wanted ot get rid of it the thing to do would be to phase it out, over a decade or so.

I can go for that.

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Palimpsest
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quote:
Originally posted by SvitlanaV2:

Originally posted by mousethief:
Did allowing mixed-race marriages change the definition of marriage? Or just broaden the category of couples who could participate?

quote:
A good question, but a particularly American one. I doubt that mixed-race marriages have been illegal for most of history. The Americans were surely aware that mixed-marriages occurred early during their colonisation of the USA. AFAICS they were outlawed not because they were primarily deemed immortal or abnormal, but because they threatened to undermine the divide and rule policy that became necessary as a way of strengthening white rule and dominance in the colonies. And not all slave colonies chose to forbid mixed marriages; some just tried to make them deeply socially unacceptable.

It's the US Supreme Court interpreting Federal Law based on the US Constitution, Why is a particularly American question inappropriate?
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Bibliophile
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quote:
Originally posted by lilBuddha:
quote:
Originally posted by Bibliophile:
First of all I should correct myself and say that a tax exemption is not a subsidy. A subsidy is when government money is passed to an individual or organisation. A tax exemption if when a government decides to refrain from taking an individual's or organisation's own money away from them.

Don't care whether you call it drab or khaki, the uniform fits the same.
Well if you want to call a tax break a subsidy then you would have a situation where the government would be subsidising religious institutions provided they practise a theology that accepts same sex marriage (and interracial marriage). In what way is that not the government subsidising certain theological positions?
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mr cheesy
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quote:
Originally posted by Bibliophile:
Well if you want to call a tax break a subsidy then you would have a situation where the government would be subsidising religious institutions provided they practise a theology that accepts same sex marriage (and interracial marriage). In what way is that not the government subsidising certain theological positions?

Because every political decision is theological. Clearly heterosexual marriage, feeding the poor, opening on a Sunday and having holidays according to the Western rather than the Eastern calendar are all theological positions.

It is obvious that it would be an impossible situation to say that the state cannot support (unless one takes the line of Mousethief above that no religious group should be tax-excempt) and/or (scarequote) "support" a religious group which happens to agree with a political agenda.

The fact is that in this case the SCOTUS has not made a decision on a theological but on a fairness and rights basis.

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IngoB

Sentire cum Ecclesia
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I reckon 9th Circle, Round 2, rather than 2nd Circle.

The USA is a funny place. Even in its decay it remains quite biblical: ruled by Judges...

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Siegfried
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Wondered when you'd turn up!

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Siegfried
Life is just a bowl of cherries!

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mousethief

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quote:
Originally posted by mr cheesy:
The fact is that in this case the SCOTUS has not made a decision on a theological but on a fairness and rights basis.

Yep. As anybody who has actually, you know, read the decision can see.

(Okay maybe everyone except Thomas and Scalia)

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Brenda Clough
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I live in a state (Virginia) where in my memory it was illegal for me to be married to my husband. He is the whitest of white boys, and I am Asian. The miscegenation laws were only repealed in 1967. The case that put an end to it was a white woman married to a black man; the cops broke into their house and arrested them for being married. (They had gone to Maryland to actually wed, and then moved back home.)

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Crœsos
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quote:
Originally posted by Bibliophile:
I'm not suggesting that the government policy itself is based on theology. I was making a specific reference to the question of tax exempt status and granting tax exempt status to some religious institutions but not to others based on their theological opinions.

Which gets it completely backwards. The government isn't granting tax exemption (or not) to organizations "based on their theological opinions", various organizations are claiming to be exempt from generally applicable laws "based on their theological opinions". The questions at stake in the Bob Jones case was whether religious organizations can get out of generally applicable laws simply by saying "it's my religion". It had been established earlier in Brown v. Board that the U.S. federal government had both an interest in and the authority to prevent racial discrimination in educational institutions. The only question being addressed is whether someplace like BJU can claim exemption from anti-discrimination law because it's religiously affiliated whereas Bobby-Ray's Learnification Center (an hypothetical non-religious version of BJU) has to admit all races of people even though its administration really hates some of those races (but for secular reasons).

Remember, the tax exemption Bob Jones University was trying to preserve wasn't granted because it was a religious institution but because it was a university!

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IngoB

Sentire cum Ecclesia
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There is no reason to assume that a white woman and a black man cannot produce offspring with each other, indeed, that they can is pretty much the (racist) reason for miscegenation laws. Hence miscegenation laws cannot be motivated from the nature of marriage as union of man and woman ordered to the begetting and raising of children. Whereas rather obviously a rejection of "gay marriage" can be motivated on these grounds.

Thus this is comparing apples and oranges. As is every other attempt to paint this as a fight for rights along the lines of racism, slavery and what have you. One first has to answer what marriage is, before one can discuss viably who might be married. If conservatives agree with liberals that marriage is about the "intimate sharing of life" first and foremost, then they have given away the debate before it even started - or at least have reduced it to the question of the morality of homosexuality as such.

It is important to note that this is not the traditional position, and that many conservatives are not standing in the actual tradition. It is also important to note that the traditional position is coherent and can be maintained without impinging on anybody's rights, because it considers marriage to have a specific function: namely to contain socially the human sexual act that can lead to procreation.

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Crœsos
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quote:
Originally posted by IngoB:
There is no reason to assume that a white woman and a black man cannot produce offspring with each other, indeed, that they can is pretty much the (racist) reason for miscegenation laws. Hence miscegenation laws cannot be motivated from the nature of marriage as union of man and woman ordered to the begetting and raising of children.

I'm pretty sure no U.S. state defines legal marriage in this manner. Do you have a citation you could share?

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Humani nil a me alienum puto

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IngoB

Sentire cum Ecclesia
# 8700

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quote:
Originally posted by Crœsos:
I'm pretty sure no U.S. state defines legal marriage in this manner. Do you have a citation you could share?

Why would I feel obliged to do so? I made no claim about the details of US legislation. Indeed, I have just pointed out that the opposition to "gay marriage" of many conservatives involved in this discussion rests on shaky grounds.

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They’ll have me whipp’d for speaking true; thou’lt have me whipp’d for lying; and sometimes I am whipp’d for holding my peace. - The Fool in King Lear

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Crœsos
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# 238

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quote:
Originally posted by IngoB:
quote:
Originally posted by Crœsos:
I'm pretty sure no U.S. state defines legal marriage in this manner. Do you have a citation you could share?

Why would I feel obliged to do so?
Because the U.S. Supreme Court (which is what this thread is ostensibly about, if you'll check the title) is obligated to base its decisions on state or federal law, or the federal constitution. While it might be convenient (for you, at least) for the U.S. Supreme Court to base its decisions on your personal theology, the Court obligated to have at least some legal basis for its decision.

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Net Spinster
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# 16058

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Actually we know for a fact that some states don't consider procreation a requirement for marriage since they ban marriage between first cousins unless they are unable/unlikely to procreate (e.g., Arizona, Illinois, Indiana, Utah, Wisconsin).

BTW the Lovings were a black woman and white man; the other way around would have probably seen at least one of them killed in that time.

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IngoB

Sentire cum Ecclesia
# 8700

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quote:
Originally posted by Crœsos:
Because the U.S. Supreme Court (which is what this thread is ostensibly about, if you'll check the title) is obligated to base its decisions on state or federal law, or the federal constitution. While it might be convenient (for you, at least) for the U.S. Supreme Court to base its decisions on your personal theology, the Court obligated to have at least some legal basis for its decision.

I know shit all about relevant US laws, and consequently about what SCOTUS could base their decision on. I know though that a minority of them did see sufficient legal grounds to reject this decision. That suggests that whatever the status of US law may be, it would have afforded the opposite decision within bounds of valid legal reasoning.

And the only thing I have said about SCOTUS through an oblique Dantean reference is that they have failed their country, a judgement that rests comfortably on having 1) established that SCOTUS could have judged differently (see above), and 2) should have done so based on general "moral" grounds. Oh, and I briefly critiqued SCOTUS for usurping the role of law maker. That's more a political than a judicial point though.

My length discussion above was instead about the comparison to miscegenation laws. That's a side issue on this thread, obviously, but one that interests me.

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They’ll have me whipp’d for speaking true; thou’lt have me whipp’d for lying; and sometimes I am whipp’d for holding my peace. - The Fool in King Lear

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Crœsos
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quote:
Originally posted by IngoB:
I know shit all about relevant US laws, and consequently about what SCOTUS could base their decision on. I know though that a minority of them did see sufficient legal grounds to reject this decision. That suggests that whatever the status of US law may be, it would have afforded the opposite decision within bounds of valid legal reasoning.

There are very few cases that reach the U.S. Supreme Court that don't have at least two legally plausible resolutions. Simple cases with obvious answers in settled law generally don't make it that far through the appeals process.

quote:
Originally posted by IngoB:
Oh, and I briefly critiqued SCOTUS for usurping the role of law maker. That's more a political than a judicial point though.

My length discussion above was instead about the comparison to miscegenation laws. That's a side issue on this thread, obviously, but one that interests me.

The problem is that all the criticisms you've leveled again Obergefell could just as easily be applied to Loving, which "usurp[ed] the role of law maker" (since anti-miscegenation laws were popular pieces of legislation when enacted), that "US law . . . would have afforded the opposite decision within bounds of valid legal reasoning" (as demonstrated by the fact that the Lovings lost in every court to hear their case prior to the U.S. Supreme Court), and the decision was based upon an expansive interpretation of the Fourteenth Amendment rather than "general 'moral' grounds". I'm not sure how you can regard one as validly decided under law but not the other except through simply saying you like one set of plaintiffs better than the other. I'm not sure why your personal prejudices should be the determining factor for America's highest court.

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Humani nil a me alienum puto

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Organ Builder
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quote:
Originally posted by IngoB:
I know shit all about relevant US laws, and consequently about what SCOTUS could base their decision on. I know though that a minority of them did see sufficient legal grounds to reject this decision. That suggests that whatever the status of US law may be, it would have afforded the opposite decision within bounds of valid legal reasoning.

Have you read the minority opinions? They contain many things, but seem a bit short on "valid legal reasoning". Many of the minority opinions this season (not just on this issue) seem to be more for the express purpose of taking pot shots at their colleagues in the majority. Besides, using this reasoning one could look at prior split decisions and determine that the Supreme court could have affirmed slavery (as they did for a while) segregation (ditto), the inability of a woman to own property in her own right, the unfitness of marriage between races, etc. etc. etc. One could even determine that Gore should have been President.

quote:
Originally posted by IngoB:
And the only thing I have said about SCOTUS through an oblique Dantean reference is that they have failed their country, a judgement that rests comfortably on having 1) established that SCOTUS could have judged differently (see above), and 2) should have done so based on general "moral" grounds. Oh, and I briefly critiqued SCOTUS for usurping the role of law maker. That's more a political than a judicial point though.

They may indeed have failed their country, but like many people I don't think they did this time. You seem to equate "general 'moral' grounds" and "bounds of valid legal reasoning". I don't, and I think most people would see that the two CAN be different. While you may have established your point labelled "1" to your own satisfaction, neither you nor anyone present when the case was being argued established it to the satisfaction of the majority of justices.

The other thing, of course, is that SCOTUS did not usurp the legislative power. They simply said it is not constitutional to ban the civil state of marriage for gay couples. 5 of them said it. The way our constitution works, that's the end. It doesn't matter if 5 or 9 said it. It won't be re-examined unless there is a significant mind change in the country, which doesn't seem likely.

When I get married on my 14th anniversary in September, I will be married in the eyes of the State of Georgia, the Federal Government of the United States, my family, and my husband. I won't be "same-sex married" to these entities, I will simply be "married". If you and your wife were to move to the US, the same (and no more) would be true for you in the eyes of these entities. I won't be married in the eyes of the RCC and you will, but they have little to no moral credence with me so I really don't care.

In fact, where I think most anti-gay Christians "get it wrong" is in thinking that gay people will be coming after them to force them to perform gay marriages in their churches, etc. The pressure they feel will be coming from their own internal lay members (and a few clerics), many of whom are NOT gay. There will be little or no pressure from outsiders, who don't really care what they do.

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IngoB

Sentire cum Ecclesia
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I also have no particular opinion about the "Loving" decision of a previous SCOTUS, as far as any of the legal detail is concerned.

What I actually wrote concerning miscegenation laws is that they cannot be justified on a traditional view of marriage, whereas an opposition to "gay marriage" can be.

And just because I think miscegenation laws are wrong does not necessarily mean that the process by which they were removed in the USA is right in my eyes. Not that I really know how that happened other than through your summary. If by "expansive interpretation" you mean that the judges back then stretched the limits of what one could reasonably read into the law, beyond common practice in the legal profession and over and above the expectations of most elected politicians, then it was wrong to declare this in a procedural sense - no matter how right I may consider the result morally. Whatever means SCOTUS may have to play the ball back into the US political court, that's what they should have done back then.

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Arethosemyfeet
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quote:
Originally posted by IngoB:

What I actually wrote concerning miscegenation laws is that they cannot be justified on a traditional view of marriage, whereas an opposition to "gay marriage" can be.

If your traditions include racism, sure they can, just as your tradition including homophobia allows you to justify your views.
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Siegfried
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quote:
Originally posted by IngoB:
I also have no particular opinion about the "Loving" decision of a previous SCOTUS, as far as any of the legal detail is concerned.

What I actually wrote concerning miscegenation laws is that they cannot be justified on a traditional view of marriage, whereas an opposition to "gay marriage" can be.

The trick is, of course, depending at what point in history to drive in a stake and declare "This is where Traditional Marriage begins". And as has been pointed out, no where in Genesis is marriage defined. You're taking "man + woman = babies" and "be fruitful and multiply" and back-defining that to be marriage by shoehorning those items in.

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Siegfried
Life is just a bowl of cherries!

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