Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
I'm sure it won't surprise anyone to hear that Dinesh D'Souza is making disingenuous arguments about the California Supreme Court's ruling on gay marriage last week. First he blathers about enumerated rights and, conveniently, ignores unenumerated rights:
How, then, can a court invalidate the referendum and over-rule the will of the people? Basically through a kind of legal fraud. The court has to pretend that there is a right to gay marriage even though it is nowhere evident in the state constitution. Read the constitution, hold it up to the light, squeeze lemon juice on it--you won't see a right to gay marriage in there. It is simply not an enumerated right, nor is it a right that can be clearly derived from other enumerated rights.
I bet there's a whole range of unenumerated rights the court has rightly protected that D'Souza is all for. Nowhere in the constitution does it mention any right to travel from state to state, or to send one's children to private school (or to homeschool them, for that matter), or the right to read a book if one chooses to. Read the constitution, hold it up to the light, squeeze lemon juice on it - you won't see any of those rights mentioned. Yet the courts have rightly protected them anyway.
Why? Because the founders made absolutely clear during debate over the bill of rights, particularly regarding the 9th amendment, that they could not possibly list every right that an individual has. Thus the 9th amendment says that just because a right is not listed does not mean the government can violate it and that all unenumerated rights are presumed to reside with the individual. The burden is on the government, not the individual.
And D'Souza, like all other conservatives, understands this perfectly well when it comes to a right they believe individuals should have; as soon as the court protects a right they oppose, however, they suddenly declare that unenumerated rights are not real, that the 9th amendment is a mere "inkblot" on the constitution and that the courts are "destroying democracy" by not allowing the majority to trump minority rights in that particular case.
Mind you, when it comes to a case where the majority supports a policy they don't like, such as the Oregon assisted suicide referendum, they eagerly run to the court to have those "unelected judges" overturn the "will of the people." There are multiple levels of hypocrisy operating simultaneously here.
In issuing its ruling the California court appealed to the equal protection clause of the Fourteenth Amendment. The basic logic is that gays have a right to be treated like everyone else. But just like everyone else, gays do have the right to marry. They have the right to marry adult members of the opposite sex!
And this is the exact argument made by the state of Virginia in defending its laws against interracial marriage: that blacks and whites both have exactly the same right to marry someone of the same race and thus they are treated equally. But this is a highly dishonest way to frame the question. So tell me, Mr. D'Souza, was Loving v Virginia rightly or wrongly decided? Careful how you answer because those who supported such laws against miscegenation would undoubtedly consider you to be of a different race and thus require you only to marry someone of your own race.
What gay activists want is something else: the right to marry members of the same sex. This is not a right currently enjoyed by anyone. What these gay activists seek is not equal treatment but rather to change the definition of marriage.
And the same was true of those dastardly Lovings. The definition of marriage going back centuries was a couple of the same race and they wanted nothing less than to change that definition of marriage. And they did. And we're all better off for it.
In the past Democrats have always appreciated courts doing their dirty work when it comes to issues like abortion, pornography, prostitution and gay rights. This way Democrats can advance their permissive agenda without having to take political responsibility for voting against the values of a majority of voters. It's time to make the Democrats pay for this in the November election.
Uh....Dinesh....I've got some news for you....the Supreme Court that did this was made up of almost all Republican appointees. Those who were in the majority in last week's ruling:
Chief Justice Ronald George: Republican
Justice Joyce Kennard: Republican
Justice Kathryn Mickle Werdegar: Republican
Justice Carlos Moreno: Democrat
Yep, 3 out of 4 were Republicans. And a 4th, Justice Carol Corrigan, wrote a dissent that said while she didn't think the court should overturn the law at this point, "Californians should allow our gay and lesbian neighbors to call their unions marriages." Those damn pro-gay Republicans! They should be punished by voters in November.
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Comments
>> And the same was true of those dastardly Lovings. The definition of marriage going back centuries was a couple of the same race and they wanted nothing less than to change that definition of marriage. And they did. And we're all better off for it. >>
The definition of marriage was NOT changed. It has always been between one man and one woman, not one man of a certain race with one woman of a certain race, and certainly not one man and one man. The ban on interracial marriage fell because there was no justification for marriage to be restricted based on race because the definition of marriage had nothing to do with race. It does, however, make very clear how gender plays into marriage.
Posted by: mroberts | May 20, 2008 10:02 AM
He lost me in the very first paragraph:
So the tyranny of the majority is the "essence" of democracy, according to D'Souza.
Posted by: Wes | May 20, 2008 10:15 AM
How does gender play into marriage mrroberts?
Posted by: Gene Goldring | May 20, 2008 10:16 AM
The freedom to marry someone of a different race is not an enumerated right.
Posted by: Tulse | May 20, 2008 10:17 AM
Bullshit
The definition of marriage 50 years ago was widely understood to be one man and one women of the same race. Thats why there was the crime of miscegenation (sp?).
And gender only plays in because you demand it does. Well, I say that gender has no role on who you olve and want to marry, and raise a family with. I also say the government has a compelling interest in making sure all families in this country are healthy and well protected, and that is currently achieved through the legal institution of marriage. To deny an entire group of people these protections simply because the ones they love don't fit YOUR definition of acceptable is frankly obscene.
Posted by: RObert | May 20, 2008 10:17 AM
mrroberts - where does it say that marriage are between a man and a women> By what authority do you make that judgement? -DJ
Posted by: DingoJack | May 20, 2008 10:19 AM
The definition of marriage was NOT changed. It has always been between one man and one woman
There are places on the Earth *now* that don't limit marriage to two people. If you want to look at the historical record and even at the "Judeo-Christian" tradition, there's nothing inherent in marriage that means "one man one woman".
You need a better definition of the word "definition".
Posted by: Narc | May 20, 2008 10:20 AM
Virginia, and other states, defined marriage along racial lines. That changed.
Complete bullshit. Read the Bible. One Man/One Woman marriages are the exception in many parts of the old testament. Polygamy was the tradition for thousands of years.
Again, trying reading the Bible someday. Hebrews marrying outside the race was restricted. Defining marriage in terms of race, ethnicity, social group or caste has been extremely common through much of history.
Do you not see how your argument refutes itself? Virginia had a law mandating that marriage only be within the race. The courts ruled that there was no justification for defining marriage that way. This is precisely analogous to what's going on with gay marriage. States have passed laws defining marriage, and courts have ruled that these laws are unjustified.
Posted by: Wes | May 20, 2008 10:23 AM
Apropos of this discussion, attached is an editorial from todays' Washington Post that claims that the California court decision was inappropriate. Does Mr. Brayton have any comment?
http://www.washingtonpost.com/wp-dyn/content/article/2008/05/19/AR2008051902640.html?hpid=opinionsbox1
Re mroberts
Again, since I assume that Mr. mroberts is opposed to same sex couple adoption, does he thing that Mary Cheneys' baby should be taken away from her by the State of Virginia? After all, if a same sex couple is not acceptable as adaptive parents, are they not also acceptable as parents if one of them has a biological child by in vitro insemination?
Posted by: SLC | May 20, 2008 10:23 AM
Surprisingly, mroberts sort of has a point. The people who opposed interracial marriage did so not based on a different definition of "marriage" but on different definitions of "race" and "person" under which people of different races were thought to be as incompatible as humans and chimpanzees.
I agree that allowing gays to marry is changing the definition of marriage from its traditional meaning, perhaps in a way that interracial marriage did not. I disagree that this is a bad thing, and I vehemently disagree with anyone who suggests that the job of government is to define words. If two men want to call their relationship a marriage, neither I nor mroberts nor the State of California nor the United States have any right to tell them they can't do that.
Posted by: ShavenYak | May 20, 2008 10:24 AM
Not to mention that a referendum to legalize gay marriage passed in California TWICE, only to be vetoed by the Governator. Where was D'Souza then, decrying the autocratic executive for thwarting the will of the people? Why is it only the judiciary that thwarts the will of the people when it exercises its constitutional responsibilities and not the other two branches?
Posted by: Jeff Hebert | May 20, 2008 10:26 AM
Warren's decision in "Loving" is here: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/loving.html
From Warren's opinion: "At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages."
Justice Stewart's brief concurrence also makes clear the nature of the law that was addressed in Loving:
"I have previously expressed the belief that 'it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.' Because I adhere to that belief, I concur in the judgment of the Court."
Clearly, the definition of marriage changed considerably in light of Loving.
Moreover, through most of human history, particularly evident in biblical accounts of history, the one-man/one-woman pairing was certainly NOT the norm, polygamy was common.
The extension of marriage rights to gays and lesbians is entirely consistent with this ruling, and with the arc of history--especially true since the government insists on having a voice in marriage. To me, the gov't should simply stay out of it, but I don't see that happening any time soon, so let everybody enjoy the "peculiar institution" of marriage.
Dave
Posted by: David Worthington | May 20, 2008 10:26 AM
Meh, I didn't phrase that quite right. mroberts does have the right to tell two men that they can't call their relationship a marriage. That falls under free speech. What he doesn't have the right to do is to stop them.
Posted by: ShavenYak | May 20, 2008 10:26 AM
One doesn't even need to make the argument for same-sex marriage from a base of unenumerated rights(though marriage of any variety would fall in that category, a specific right to it not being mentioned in the Declaration of Rights of the Constitution of The State of California). Responsible, consenting adults have the right to marry whom they choose given that no one, including future offspring, are harmed as a result. Thus, a responsible, consenting man has the right to marry another responsible, consenting man. The very fact that so many states have to pass laws or amendments declaring marriage an act between a man and a woman shows that they is no basis in those state's laws for denying marriage to people of the same sex.
Marriage is a civic act. A man (or woman) who calls himself(or herself) a priest, but lacks the proper licensing and accreditation, cannot perform marriages. The power to marry comes from the state, and it is the state's prerogative to determine, within its own laws, what constitutes marriage and who can marry. In the United States, it is illegal for any person or organization, even the state, to deny equal treatment to any citizen, particularly if that discrimination denies them the happiness which the declaration of independence declares the natural right of any human being. The state does not rule the Union, the Law rules, which is what the phrase "Rule of Law" means. For these reasons, there is no basis beyond prejudice, to continue denying marriage to homosexual couples. If a church doesn't wish to carry out the ceremony, fine, but civic bodies have no right to restrict access to marriage certificates, no more right than they do to restrict access to drinking fountains, drivers licenses, libraries or any other publicly-funded service.
Posted by: Julian | May 20, 2008 10:27 AM
ShavenYak - Yes but in this case "marriage" is not being re-defined (A legal contract between two persons giving them certain responsibilities and certain rights), but the definition of "groom" and "bride". -DJ
Posted by: DingoJack | May 20, 2008 10:28 AM
@mroberts
Until very recently (and still is to some extent in many cultures) marriage was about property rights and social standing. The whole marriage being "between a man and woman for the purposes of procreation" is recently invented definition.
The problem with the word "marriage" is that its so deeply embedded in contracts and laws in this country that its next to impossible to give two same people of the same sex the same legal protections without using the word "marriage".
Posted by: yoshi | May 20, 2008 10:30 AM
On the second line of the first paragraph, "they" should be "there"
Posted by: Julian | May 20, 2008 10:36 AM
bah!! "Second to last line" *grumble* *grumble*
Posted by: Julian | May 20, 2008 10:37 AM
No, it hasn't.
And quit lying. You've been corrected before.
Posted by: gwangung | May 20, 2008 10:41 AM
Julian - wouldn't noticed if you hadn't pointed it out. But it forced me to re-read your excellent post again.
Or was that the cunning plan all along :) -DJ
Posted by: DingoJack | May 20, 2008 10:41 AM
To be more precise, six Judges were appointed by Republican governors, one was appointed by Gov Davis, a Democrat.
I loved the interview, of Chief Justice Ronald M. George in the LA Times:
Yes, standing against unbridled prejudice is the right thing to do.
Yes, gay couples going about their lives, in marriage and otherwise is the best cure for homophobia there is.
Posted by: Bill Ware | May 20, 2008 11:09 AM
Ed, you should listen to yesterday's (Monday's) Focus on the Family broadcast (up on their website). James Dobson is doing his nut (to use a British expression) over the California ruling. He spends most of the broadcast yelling into the microphone he's that worked up about it. It's wonderful! :)
Of course, he continues to be a liar or woefully misinformed (or both). He claims that the will of the Californian legislature was thwarted, where in reality they voted for the same change the law twice (vetoed by the governor both times). And then he had the temerity to claim that none of the candidates (including McCain, but especially Obama) has said anything about the plight of the family today.
Well, I'd bet that you could not get through a single Obama stump speech without hearing him talking at length about the plight of American families and the problems they are having keeping themselves together under the onslaught of static wages, unaffordable health care costs, and inflated food and gas prices. Of course, Dobson will never acknowledge this since it's nothing to do with his definition of "family values" and because of the reality that Republican policies over the past eight years have done far more to break families apart than gay marriage will even do.
Still, it was fun to see Dobson freaking out, and it's worth a listen. But they're not done yet and they will be mobilized come November, so we have to watch out.
Posted by: tacitus | May 20, 2008 11:10 AM
"Surprisingly, mroberts sort of has a point. The people who opposed interracial marriage did so not based on a different definition of "marriage" but on different definitions of "race" and "person" under which people of different races were thought to be as incompatible as humans and chimpanzees."
This is nonsense. Inter-racial children were long an artifact of slavery in this country. In fact, in many slave holding states laws were passed proclaiming that the status of children must follow the status of the mother. This was fairly convenient for white men in the south as it meant that their licentiousness would not trump their avarice. Everyone knew that there was no incompatiblility between black and white such as between human and ape. They simply chose to ignore it because it suited them.
Jim51
Posted by: Jim51 | May 20, 2008 11:20 AM
On the day that the court issued its ruling, Hugh Hewitt devoted his entire radio program to screaming that the justices has "seized power" and we had to ban them from public service for life. All of them! Even those who had dissented from the ruling! That's because his listeners are too stupid to to pick and choose when it comes to voting to confirm judges in office or oust them. They need simple instructions they can follow. Hewitt should know! [Link]
Posted by: Zeno | May 20, 2008 11:41 AM
And we know that those children were not recorded in the family bible.
Owning, selling, and fucking several generations of your own descendants is okay as long as we all pretend it doesn't happen.
Posted by: khan | May 20, 2008 12:09 PM
mroberts wrote:
Utterly clueless. Let me make this clear: there is no single definition of marriage. There never has been. At different times and in different cultures, marriage has been a dramatically different institution. The definition of marriage in one culture might be polygamous in nature (and that definition was dominant for centuries in many cultures and still is in many cultures), while in other cultures marriage may be legally monogamous but not actually so (think ancient Greece and Rome, where at least for the dominant classes it was expected that you had a wife to care for the children and concubines, both male and female, on the side). Some cultures have arranged marriages, others find that idea absolutely heinous. And yes, for centuries in our own culture the definition of marriage included "within one's own race" and miscegenation was banned. Any even marginally educated person knows these things. That you don't speaks volumes.
Posted by: Ed Brayton | May 20, 2008 12:22 PM
Gay marriage does not change the definition of marriage, it simply establishes the fact that Christians do not have the right to maintain a monopoly on legal definitions. Christians in California still have the same definition of Christian marriage as they did before, they merely lost the right to make it a crime for someone to define things differently.
Hey, I know: let's pass a laws that says marriage can only take place between two people of opposite faiths. Then Mr. D'Souza can brag about how Christians have the same rights as everyone else, i.e. the right to marry someone of the opposite faith. What? You say that would discriminate against Christian families? You're demanding special rights for Christians then!
Posted by: Deacon Duncan | May 20, 2008 12:55 PM
D'souza's idea that gays are not discriminated against by being prevented from marrying same sex partners couldn't be more wrong. If a man has a right to marry a woman then a woman deserves the same right he has to marry a woman (and vice versa) - anything else is sex discrimination. Men and women must have the same rights and that means the right to a same sex marriage.
Posted by: Priya Lynn | May 20, 2008 2:56 PM
Priya, that is probably the best and most succinct rebuttal I've heard. Kudos.
Posted by: Braxton Thomason | May 20, 2008 3:01 PM
Braxton and Priya,
Careful with that line of thought though. What makes this decision as AMAZING as it is is that the court decided it upon discrimination based on SEXUAL ORIENTATION and not sex. The argument is stronger and much more on point. I am being discriminated against because I am a faggot. Not a male.
Posted by: w. | May 20, 2008 3:32 PM
Surprising no one has mentioned this yet:
As with race, what's the definition of "man" and "woman"...?
There are numerous combinations of the gender-related chromosomes: XYY, XXY, XXXY, and so on.
There are variations in physical body characteristics: some people are born with both male and female genitalia, some people are born with genitalia and secondary sex characteristics that don't quite match their chromosomes.
About a million Americans have one or more of the above characteristics, commonly referred to as "intersex" characteristics.
Sometimes the parents and the doctor "choose" and have the baby's body reconfigured via surgery. This is common for kids who have both male & female genitalia.
So when the extremists try to pass a law specifying "man" and "woman," they will then have to do some truly weird maneuvering such as the Nazis and the slave states did with the definitions of race. Anyone here remember the term "octoroon"...?
Question for any legal scholars out there: What happens when the voters pass a constitutional amendment that is fatally flawed in terms of its logic or its appraisal of empirical facts?
For example an amendment that is based on a falsehood: "The Earth is flat and this shall be taught in California public schools."
For example an amendment that entails a direct empirical and/or logical contradiction: "Californians shall drive on the left and right side of the road at the same time."
How'bout one that is provably impossible to enforce: "Californians shall not think about zebras" (this is also a logical contradiction since reading the text entails having the forbidden thought: thinking about zebras).
How'bout (this example notwithstanding the US Constitution) something that flatly contradicts previous constitutional law without resolving the contradiction: "Only belief systems that include Jesus as God's only begotten son are recognized as religions in California"
What do you think?
Posted by: g347 | May 20, 2008 3:46 PM
W.: The thing is, I don't believe that the government has the authority to restrict any behavior that's not directly harmful to another person - so Priya's rebuttal isn't strictly necessary from my point of view. But, if people are going to argue about "special" rights, then I think Priya's got a good rebuttal.
Posted by: Braxton Thomason | May 20, 2008 3:51 PM
W., I agree that discrimination on the basis of sexual orientation is also going on, but I wonder why when that's failed litigants haven't pursued the idea that one man/one woman marriage laws are discrimination on the basis of sex - its air-tight.
Posted by: Priya Lynn | May 20, 2008 3:56 PM
It's too late for D'Snooza! Sulu's getting married! Whoo-hoo! *Throws anti-matter birdseed*
Posted by: Kristine | May 20, 2008 3:57 PM
Priya and Braxton,
Good points both - but for me - the DIRECT discrimination is based upon my sexual orientation. This is a profound change in that sexual orientation is considered a suspect class (a first, if I am not mistaken) and that classification triggered the strict scrutiny. The sex/gender discrimination argument has been made in the past because this classification was not made available to us gay folks. The fact that this decision is made SQUARELY in the history of discrimination we gay folks have faced is profound. In my (humble?) opinion, this is possibly the play book from which all future marriage decisions will be made.
Posted by: W. | May 20, 2008 4:28 PM
g37, IMHO, has the right argument. Basically, laws that specify any gender-based requirements are based on the biological fiction that every human being is either male or female - a perfect dichotomy. The reality is that all people are 50% male and 50% female, and some people are such a true mixture that their physical and/or genetic makeup is not clearly male or female. Thus, laws that distinguish rights based on gender cannot apply to the intersexed. Thus, male/female marriage laws mean the intersexed are barred from marriage entirely, which cannot be Constitutional.
Posted by: CPT_Doom | May 20, 2008 4:41 PM
DD says, "Democrats can advance their permissive agenda"
That about says it all. Just what does he find wrong with "permissive"? This is from a guy perverted enough to have apparently screwed Laura Ingraham and Ann Coulter.
Now that is sick, and certainly permissive.
Posted by: bernarda | May 20, 2008 5:03 PM
"The reality is that all people are 50% male and 50% female,"
But I am 100% all man. All MAN!! 100%. All the time. Every day. 24/7/365. ;D
Seriously, what do you mean by that, CPT?
Posted by: Gingerbaker | May 20, 2008 5:14 PM
for the record, men who happen to have XXY or XXXY chromosomal makeup are male. They are not partial females. Most of them never even find out they are different from other men. There are conditions that produce individuals with ambiguous genitalia at birth, but having XXY is not typically associated with that condition at all.
Back on topic, I just don't understand why it matters to people whether their neighbors are married or not, and whether they both have a penis, or both don't. Do they keep their lawn mowed? Do they pick up after their dog? Do they have loud obnoxious parties? That's relevant - their genitalia should only be relevant to themselves and each other.
It's kind of like abortion - if you don't want to marry someone with the same gender, then ... don't. Why the need to prevent others from the security of a stable, loving relationship is what always puzzles me about this. And anyone who claims that gay marriage is "destroying marriage" has a really crappy marriage that probably won't make it anyway.
Posted by: biogeek | May 20, 2008 10:33 PM
CPT Doom, thanks; and more about this below...
Biogeek, about the subject of how this bigotry gets going anyway:
the reason bigots are obsessed with their neighbors' genitalia, and with how their neighbors utilize their genitalia, is because a lot of them were raised to believe it's "evil" and then started having their own "evil thoughts" because they're gay by nature but they hate themselves for it and they score high on concrete thinking (and low on abstract thinking) and have zero tolerance for gray zones or ambiguity.
And for a lot of bigots it's just simple monkey tribalism: "All the monkeys in my monkeysphere hate Z, so I'll hate Z too."
And last but by no means least, there's this odd thing called puritanism. These people are terrified of God (which strictly speaking is a heresy in Christian terms: thou shalt *love* God, said Jesus, and fear is not love). They were raised with an idea of what it means to be Godly. They were also raised with a strange dichotomy between spirit (good) and body (evil)...
...And yet (explicit language warning) when they climb in the sack with their partner, they go apeshit animal, they thrash and moan and have involuntary muscular contractions, they sweat and they sigh, and after all is said and done they feel better than they think they have any right to feel *and at the same time they feel a huge weight of shame upon them* as if God is looking down on them and considering whether or not to strike them dead on the spot and send them to hell.
And they can't deal with it. Not one bit. It feels soooo gooood but it "is" so eeeevil, and they can't cope with it. So they seek refuge in the idea that it's OK if it's about making babies, otherwise it's bad, bad, bad. And they resent the hell out of anyone who is free of that kind of internal nuclear warfare, just as most humans resent anyone else who has it better than they do in some tangible way.
And the way that all of these various hatreds and resentments get taken out is to join hands together in social crusades against anyone who even dares suggest that sex is good, wholesome, fun, and to be enjoyed as often as possible between consenting adults for any purpose or in any configuration their hearts or gonads might desire.
Same as it ever was.
---
Posted by: g347 | May 20, 2008 11:29 PM
This is re. CPT Doom and Biogeek:
Biogeek, I have a question:. You said that the multiple-X-with-a-Y combinations do not come along with anything other than conventional male genitals.
Just to get this clear: Is there any combination that includes a Y chromosome that also has cases on record of the individual having something other than conventional male genitals? That is, does the presence of a Y chromosome always 100% of the time produce a penis & testicles, and never produce a vagina etc.?
So now, a few thought experiments:
Let's say we define male as "having XY chromosomes" and female as "having XX chromosomes."
Now you have someone who's XXXY. They have XX, so they're female. Oh wait, they have XY so they're male. In fact genetically they have both. Thus they can't marry in either direction.
Let's say we define male as "has a penis" and female as "has a vagina."
Now we have someone who was born with both, but the doctor said the baby would grow up having a small penis, and since small penises are as acceptable in our superficiality-crazed society as small bank accounts, the parents said "lop the darn thing off and make our baby a girl."
So now you have someone who is genetically XY but phenotypically female. And the parents try to raise the kid as a girl. "Here, have a Barbie doll, with a nice pink gown..." "No, I want a Tonka truck!, a bulldozer would be good..." ..and later, "So, you're in highschool now, when are you going to find a nice guy to ask out on a date?" "Eww, guys are icky, I want to go out with girls and I'm in love with my best friend; hmm, does that make me a lesbian?"
Genetically they're a heterosexual couple. Phenotypically, if they act on that, the fact that they both have vaginas means they can't marry regardless of genes. The person with XY and a vagina can marry someone who has a penis. Genetically that is a *gay* marriage because genetically they are both males.
This to my mind is the kind of thing that can be used to throw out all gender-based marriage laws. The fact that those laws, regardless of whether based on genes or on genitals, will necessarily force some people into marriages that are for all intents and purposes same-sex, is a fatal logical contradiction.
Or the authors of such laws could attempt some kind of wild convoluted nonsense such as "Has such-and-such chromosomes, not including a blah-blah gene, and has so-and-so set of genitalia not including a thing-a-ma-bob."
And this brings us to octoroons. That was the term for people who were 7/8 of European ancestry and 1/8 of African or Afro-Caribbean ancestry. Octo: measures with the denominator of 8. That is, you had 7 Euro great-grandparents and 1 Afro or Caribbean great-grandparent.
We still do something like this for US Government recognition of membership in Native American tribes. If I'm not mistaken it goes down to 16ths. Speaking of convoluted racism, who is whitey to tell the red man who can and cannot belong to the latter's nationality? By all rights, anyone who a tribal council or other traditional governing body chooses to adopt into a tribe, based on their own cultural criteria, should be recognized as 100% American Indian in the same manner as a naturalized citizen of the US is recognized as 100% American.
But back to genes and genitals here. It's impossible to define gender without a degree of twisted convoluted nonsense that is practically the same as the nonsense that was used to determine that someone deserved to be treated as less-than-equal because their great grandfather was dragged over here in chains aboard a slave ship despite the fact that the rest of their ancestors came from places where blond hair and blue eyes are commonplace.
Gender, like race, is a fuzzy convention rather than a truly tangible category. Time for us to consign all of that stuff to the proverbial recycle bin of history, along with the idea that malaria was caused by swampy air and dysentery was caused by your enemy repeating your name three times as he pooped in the woods under the full moon.
Posted by: g347 | May 20, 2008 11:55 PM
g347 said: "Biogeek, I have a question:. You said that the multiple-X-with-a-Y combinations do not come along with anything other than conventional male genitals."
No, I didn't say that. I said "men who happen to have XXY or XXXY chromosomal makeup are male. They are not partial females. Most of them never even find out they are different from other men. There are conditions that produce individuals with ambiguous genitalia at birth, but having XXY is not typically associated with that condition at all."
My statement and yours are not the same. Klinefelter's Syndrome (XXY) is not typically associated with ambiguous genitalia, and most boys/men with this are not diagnosed at birth, if ever. I didn't say that there are not individual cases where a person who is XXY is *also* ambiguous in terms of gender at birth, but that is not a typical condition of having an extra X chromosome. KS men are not generally distinguishable (in terms of genitalia) from typical XY men. If they were, they'd be diagnosed much earlier in life, and much more often than they currently are.
g347 said "Now you have someone who's XXXY. They have XX, so they're female. Oh wait, they have XY so they're male. In fact genetically they have both. Thus they can't marry in either direction."
Gender in mammals is typically determined not by having two Xs (XXX or XXXX are female), but by the presence or absence of the Y, or, more specifically, the presence or absence of specific gene(s) usually (but not always, translocations between the Y and the X or other chromosomes can move this gene) found on the Y chromosome that trigger development of male features from the default female developmental pattern.
Your point is different from anything to do with XXY chromosomes. There are individuals with XY chromosomes who present with apparently female genitalia, or with very small penis (or enlarged clitoris, depending on how you view it - it's all the same tissue, after all).
BTW, I don't disagree with your overall point (that being, as I read it, that gender identity is fuzzy and personal and on a wide spectrum and shouldn't be used to discriminate against individuals or groups, but I could be misinterpreting your point), I'm just clarifying that being XXY doesn't have anything to do with ambiguous genitalia, and doesn't have any issues with gender identity.
Posted by: biogeek | May 21, 2008 12:34 AM
biogeek sez:
Gender in mammals is typically determined not by having two Xs (XXX or XXXX are female), but by the presence or absence of the Y, or, more specifically, the presence or absence of specific gene(s) usually (but not always, translocations between the Y and the X or other chromosomes can move this gene) found on the Y chromosome that trigger development of male features from the default female developmental pattern.
I hate to pick nits, but you're using the wrong word here.
"Gender" refers to the perceived (self- or other-) sex role of an individual. "Sex" refers to the actual physiological capabilities of said individual.
So what you really mean is, "Sex in mammals is typically determined... [etc.]", not "Gender".
I know several women who have male sexual apparatus (no, no, not in a jar on their dresser... I think), but who are, of course, women, because that's who they think they are. That's their gender. This may seem a word-ish, semantic point, but it's important to make that distinction: who you FEEL you are, and who you LOOK like you are.
Posted by: Josh Hayes | May 21, 2008 1:55 AM
The presence of the gene SRY triggers a developmental cascade into "maleness". This gene is found only on the Y chromosome, therefore only the presence of the Y chromosome makes a male.
XX = female; XY = Male
XXX = female; XXXY = MALE.
Remember also gender > sexuality. -DJ
Posted by: DingoJack | May 21, 2008 1:59 AM
>> Gay marriage does not change the definition of marriage, it simply establishes the fact that Christians do not have the right to maintain a monopoly on legal definitions. Christians in California still have the same definition of Christian marriage as they did before, they merely lost the right to make it a crime for someone to define things differently. >>
So based on this, what rationale are we going to use to prevent any other form of "marriage"? Or do you guys intend to approve of that as well, for instance group marriage or polygamy?
Posted by: mroberts | May 21, 2008 2:13 AM
Complete furphy.
Polygamy between consenting adults is fine, it's banned in the US (as I understand it) because of the danger of the marriages being forced, and with under age (female) partners. Also there is the legal minefeild of who has gets to make medical/legal decisions if one of the partners is rendered unable to do so.
Marriage is simply a legal contract. No one has a problem with a company having several partners. Legal proceedures are in place to cover malfesance, incapacity and etc. Perhaps we should struggle into the 21st century and think about marriage, not in Victorian romantic way, but in an earlier way, as simply a legal partnership like any other.
Sorry to kill the romance -DJ
Posted by: DingoJack | May 21, 2008 2:30 AM
I think of "sex" as a yes or no (or maybe!) question, I suppose, and prefer gender to refer to what most people call sex (a term I think is overused on forms etc.). /shrug. Looks like I went overboard on my use this time ;-)
DJ, you are correct about SRY usually being a Y chromosome gene, but occasionally it is found on other chromosomes (usually but not always the X) in which case no Y is needed for maleness. True. Not common, but true. I don't know of any increase in gender identity issues in these people, but they would be recognized as male.
None of this (unintentional) derail changes the fact that there's no good reason to worry so much about who loves whom, and what the individuals involved have between their legs.
Posted by: biogeek | May 21, 2008 2:51 AM
>> mrroberts - where does it say that marriage are between a man and a women> By what authority do you make that judgement? -DJ >>
Dingo, how about the vast majority of human history? I find you liberals so fascinating because you automatically assume that what you come up with is an improvement on what was before. In the space of a few years you set aside the male/female design that is clearly intended by nature and the marriage model that has been a constant through most of human history because you somehow have greater wisdom than nature and all the civilizations that have come before. Hubris anybody? I mean goodness, how did our poor, pathetic, backward ancestors ever raise themselves up from living in caves to landing on the moon without embracing and encouraging gay marriage? How is it that the wisdom of modern liberals was somehow missed throughout 5000 years of human history? How did civilization ever survive without gay marriage, cross-dressing, and sex changes for 5-year olds? Thank God liberals have rescued civilization from its pathetic backwardness!!! Thank God the errors in nature's design have finally been set straight by liberals who obviously know better!!!
Look at the countries in Europe that have had gay marriage for a while now. The marriage rate of gay couples is almost nonexistent (this is also true in Massachussetts and will undoubtedly prove true in CA), therefore it is safe to say that gays don't give a rats ass about marriage. All that gas about how gays want to have committed marital relationships is pure BS. It also proves the LIE that somehow marriage is going to encourage more monogamy in the famously promiscuous gay community. In fact, not only is the marriage rate nonexistent in the gay community, marriage is not really practiced at all in such countries any more. So instead of encouraging marriage for gays, gay marriage has in fact effectively dismantled the bedrock institution of society in some European countries. Stable families are essential for raising healthy kids, and they are now scarce because of the liberalization of the family structure. Kids are growing up in families where parents have no commitments to each other and can bail out the door at will and go live with somebody else. How is that good for kids, folks? The birth rate has declined to the point where these countries aren't even replacing their population as it ages. There are not enough kids being born to eventually work and support the entitlement programs promised by governments to aging retirees. In a word, some European countries are DYING. The only reason some might be growing slightly is because of immigration from countries that uphold traditional marriage and family. Traditional countries are the only ones reproducing!
This whole gay marriage thing is just complete irrationality and stupidity. It is not progress, it is insanity. Liberals claim the mantle of reason yet they have completely thrown it out the door. I honestly have never met a more irrational person than a hardcore liberal. Gay marriage strikes at the foundation of the family, which is the building block for a stable society. I hear the pro-gay crowd say all the time that gay marriage is going to somehow strengthen families yet the evidence from Europe says otherwise. The embracing of homosexuality is not a sign of an enlightened society, but of an arrogant and clueless one that is bringing onto itself its own decline and extinction. Again, Europe is PROOF.
Will the arrogant stupidity of liberalism ever end?
Posted by: mroberts | May 21, 2008 3:01 AM
The reason it's the Y and not the multiple X's that makes the difference in sex (besides the SRY) is also something called X-inactivation. In both males and females only one X is active in the cells, the other is packaged up into an inactive Barr body in females (and men with more than one). This is to keep dosages relatively constant between the sexes. So the number of Xs has nothing to do with anything.
Also, it's possible for an XY (or xxy or xxxy) to be a phenotypic female. This occurs through androgen insensitivity. They can make all the testerones they want, but if the body doesn't recognize them (if the androgen receptor gene is mutated), it says "Wow I'm female, really female".
Something that I've only heard about in a biochem class and never did any follow up research on, for which I'm now regretful, is that there's an island somewhere where pretty much everyone in the society is insensitive to the testosterone variant that is primarily active before puberty, so they're all phenotypically female kids, and all treated as such. It's only when puberty hits that they find out which sex they are, because they have working receptors for the testosterone variant that initiates puberty. Fascinating stuff, and I'd love any bio buffs to fill in the huge gaps I've left if you possibly can. I wish it had been a psychology class rather than a bio class I got that info from, I'd love to know about the socialization that goes on in that society.
Posted by: paul | May 21, 2008 3:09 AM
And Mrroberts, if you bothered to read the goddamn replies to your idiocy, you'd know that even your own idiot bible reveals that one man/one woman has not been the norm since time immemorial. It's been one man and how ever many women he could afford.
And how did civilization keep going without us "fags" to make things difficult? It functioned by marginalizing and killing us. It functioned by making it impossible for us to express ourselves, leading to psychiatric distress and fucking suicide. That's how civilization got along so well without us, cretin. And that's where people like you would like us to return.
Posted by: paul | May 21, 2008 3:15 AM
apologies, but I feel the need to clarify again, paul you are correct about X inactivation and dosage compensation, but the statement that "the number of Xs has nothing to do with anything" is incorrect. If that were entirely true, there would be no phenotype for girls with Turners (XO), boys with KS (XXY) or girls with Triple X Syndrome. Inactivated chromosomes are *mostly* inactivated but there are regions on the X (and Y) that do express genes. Having too many of these genes (or not enough) has a phenotype, which is why the syndromes have names.
You are correct if you meant that the extra X doesn't have much to do with gender identity issues, or sexual orientation.
mrobert: since the "marriage rate of gay couples is almost nonexistent" what does it hurt to let them do it. None of them do, so it's not a problem to let them, right?
Posted by: biogeek | May 21, 2008 3:48 AM
mrraberts - a) Fertility decline is occuring in western countries that don't have gay marriage (such as Japan) and have been doing so since the begining of the 20th century at least. This is due to better health, longevity (the mean age of pre-industrial Europe was 40 years), better education and more food.
b) What evidenve do you have that homosexuals are more promiscious than anyone else? I mean apart from you gut feeling, any actual verifiable evidence at all?
c) What evidence do you have that homosexuals are not getting married at the same rate as anyone one else? (see above)
d) In fact several studies have shown that the sexuality of the parents have no outcome for thier children. None whatsoever.
c) What evidence do you have of gay marriage undermining other families marriage, by what mechanism does this occur?
I find you ignorance, mrroberts, of other cultures rather frightening.
Xosians often have many wives, it is believed that thier culture stetches back over 100,000 years. Australian Aborignals (>60,000 years) also can have many partners. Egpytians nobles often had many wives (Tutenkarmun was Arkarnon's son by his less favoured wife, Tye). Many 6th century BCE Judeans had multiple wives. The first recorded "lesbians" were written about by the poetess Sappho only a century after the bible was first written down (500BCE). Spartans conducted ritual "kidnapping" of young boys to their "messes" thus severing the familial bonds and building up a "comradeship" amonst the fighting unit. This was also true of Macedonian culture. Alexander, if you recall, was very fond of Hephaestion, his advisor, friend, and probably lover. Didn't stop him from being the most sucessful conquerer in history in terms of sqaure miles captured per year.
You will recall that Romans often divorced, remarried and had concubines of both sexes, they didn't think this was was odd in any way. According to Ceasar's army's marching song he was "Every woman's husband and every man's wife."
Human beings even as late as Kinsey's (flawed) report into human sexuality in America (1948&1953 I think) showed that human behaviours are many and varied. As I recall something like 27% of Men reported some kind of homosexual encounter.
Maybe you should get out more, mrroberts -DJ
Posted by: DingoJack | May 21, 2008 4:27 AM
mroberts: I'm sorry, but you obviously don't know the first thing about Europe. And, as a European, I don't appreciate being used as a reactionary's talking point.
It is true that some countries in Europe suffer from falling birth rates, but that has very little to do with gay marriage. The causes are much more complex and varied than that. And, as it turns out, one of the countries *without* gay marriage, Italy, is leading the way to complete infertility - seriously: Italy's birth rate is significantly lower than that of several countries (such as Denmark and Sweden) that have had gay marriage for years, and that are generally more politically liberal, to boot.
So in other words: Next time, please take a moment to consider if you know sod-all about what you're talking about before opening your mouth.
Posted by: konrad_arflane | May 21, 2008 4:48 AM
mroberts: Others have addressed your woeful lack of historical perspective already, but I would just like to add that the reason gays (or lesbians) and their friends need this ruling is not so that they can go to church to get married, but to at least gain recognition in law of their partnership, and hence gain power of attorney (if required) if their loved one is somehow incapacitated.
What happened until now is even if a homosexual couple had been defacto for say 50 years, if one was admitted to hospital (or died) then the partner was given no say in what happened, and everything would be deferred to the last living relative or the State (or suffer a long and protracted legal battle). If it was a heterosexual couple in the same position then not an eye would be batted.
That is what they need. What they want is equal respect. In fact, what they would probably prefer is that no one cared what they did behind their bedroom door or who they loved. You can still be a bigot if that is how small your mind is, but really they are no different from the rest of us (they just find their own gender attractive).
Pro Tip: More learning and less bigotry will take you far.
Posted by: Andrew | May 21, 2008 5:30 AM
Mroberts
I am so glad I am unthinking liberal who is stupid enough to want everyone to be free and happy and safe and supported and responsible under a fair and useful set of laws; that I am a person so mentally deficient that I actually judge myself and others based on how well they are fair, rational, productive, progressive, and loving (in broad sense) of others; I thank Giove I am a stupid scum liberal who wants peace and understanding in the world and who will put his resources into achieving it.
I am also glad I am so brain numb that being free and unconstrained by ancient tribal ramblings and your fears and prejudices makes me joyous. Thanks for making me fucking damn proud to be so stupid - and that I am not like you.
Posted by: ConcernedJoe | May 21, 2008 5:30 AM
mroberts said:
"So based on this, what rationale are we going to use to prevent any other form of "marriage"? Or do you guys intend to approve of that as well, for instance group marriage or polygamy?"
Er... Yes. Why should I or anyone else care what consenting adults do with each other? Stop trying to force your morality on other people, asshole.
Posted by: Braxton Thomason | May 21, 2008 5:46 AM
mroberts:
Your stupidity has been rather firmly rebutted above. I'm afraid that anything I might add would only be piling on. So, I'll just say, stfu, you troll.
Posted by: democommie | May 21, 2008 7:37 AM
God intended men to marry and have sex with multiple women -- just look at the Bible! Abraham had multiple wives, as did Esau, Gideon, Jacob, David, and Solomon (300 wives! And 700 concubines!). Surely it is current US law that is against God's will. Seriously, where in the Bible is the divinely-approved practice of polygamy revoked?
And as for "nature", biology is set up so that men can produce offspring from multiple women quite easily. Isn't restricting a man to one woman "unnnatural"? If you want the birth rate to go up, you should be in favour of polygamy.
Posted by: Tulse | May 21, 2008 7:50 AM
"In the space of a few years you set aside the male/female design that is clearly intended by nature and the marriage model that has been a constant through most of human history because you somehow have greater wisdom than nature and all the civilizations that have come before."
The ignorance here is positively breathtaking. The "marriage model" has not been constant through most of human history. Even in today's world the model takes several different forms. And "the male/female design that is clearly intended by nature" is bullshit also. Anyone who actually bothers to learn anything about sexuality in nature finds polygyny, polyandry, group sex, infidelity, serial monogamy, and homosexuality. And I haven't even mentioned asexual reproduction that is occasionally interspersed with sexually reproducing generations.
It's amazing to me how some people feel they know nature's intent without ever taking a serious look at nature.
Jim51
Posted by: Jim51 | May 21, 2008 8:46 AM
Ed stated:
"by not allowing the majority to trump minority rights in that particular case"
Regarding what Conservatives would seek to do if given the chance on this issue of gay marriage.
Ed,
I stated on another post that I am a proponent of gay marriage as far as ensuring the right to do so. As I stated on the other post, you are exactly right in oppossing what I quoted you saying above about the majority oppressing the minority. The entire spirit of the Declaration and Constitution is based on this theory: That minority rights are protected against the majority. It is all throughout the Federalist Papers.
With that said, I have been teaching my kids in History class about the power of Ideas and how after the invention of the printing press that ideas spread like wild fire from Europe all over the world. I then had them watch Blood Diamond to see the consequences of the ideas that spread 500 years later. I had them evaluate the good and the bad.
Now I am teaching them about the sequence of events that lead to the reign of Charles V in Spain and as Emperor of the Holy Roman Empire. But before we get there I am talking about how Ferdinand and Isabella came to power through the consolidation of the Central Castile Crown with the Eastern Aragon Crown.
As I was reading about how Spain became Spain in the early 1500's, consolidated power in Europe with the alliance witht the Holy Roman Empire, and then went out to fuck the rest of the world, I realized that there was a battle of ideas at the time. Aragon told their king that he was going to obey their laws or he was not king(We the people), was Cosmopolitian in view, traded(maybe not fairly) rather than stole from people, ... Castile was an Aristocratic waring, conquering, and religous society that was run by the State Church and existed to fight the "holy war" which was just a bunch of propaganda for going to steal people's land and resources in the name of God.
History tells us which idea won out 500 years ago as Europe went out to "explore". Castile swallowed up Aragon and the Holy Roman Empire swallowed up Spain. Those pricks went out to pillage. The choice is before us again at the start of a new era that started with another great invention that has changed the world just like the printing press did: The internet.
Backward thinking and oppression in the name of God and religion destroyed this world for 500 years and was only curbed by Movements for individual rights in Britain, France, and here. We started out well but have pissed it away. The fact that people think the majority should be able to violate the rights of gays in pursuit of happiness because they disagree with it is dangerous. The Christians will be the same ones bitching if someone tries to tell them they cannot practice their religion freely. THe US is turning to shit. This is proof. Let gays marry. OR better way to put it: quit violating the rights of gays who want to get married.
For those of you who are new, I am a born-again Christian. But hopefully one that does not have my head up my ass. Legislating morality has done more harm in history than anything else. Sorry for the long comment but Ed is right on this one and I want to make that known. I stand corrected. I still believe and love God. But am ashamed to call myself a Christian in America once again.
Posted by: King of Ireland | May 21, 2008 8:47 AM
D'Souza is an idiot and a tool. But say what you will about the 14th Amendment, it was drafted for racial discrimination, not for gender and not for sexual orientation. Gay marriage is something new. Which is why it should be sanctioned by legislative and voter action, not by the courts as a newly discovered "right." The California Supremes acknowledged that when their constitution was drafted marriage was defined between one man and one woman--so the only thing that changed was attitude. That is an excellent reason to pass a law but not for the courts to change their interpretation of existing law.
I am for same sex marriage and consider it zero risk on marriage rights in general (it is actually an affirmation of such rights). But it is better this be done through the legislature. Because it is something new.
Posted by: Joe | May 21, 2008 8:47 AM
Admittedly, I haven't read the decision. But I thought it was based on the California Constitution, not the US Constitution.
As to Joe's comment, I will point out that there is no reference to race in the 14th amendment, neither directly nor indirectly. Yes, racial discrimination was the major consideration at the time. Despite that, and quite wisely, the amendment was framed in a much more general fashion. I have never heard a serious argument that the Constitution's text should be ignored just because most of those who considered it at the time had only a specific application in mind. Don't try that with contracts, either. "Your honor, I know the contract reads 'service at any time, on any day week,' but honest, I wasn't meaning late Saturday night when I play poker."
Posted by: Russell | May 21, 2008 9:07 AM
On the radio program On Point they had a law professor from Pepperdine opining about the California Supreme Court's gay marriage ruling. Pepperdine is a very conservative law school, so it's not surprising that this guy was anti-gay marriage.
So the guy starts with a reasonable point. He says we have to separate the secular objections from the theological objection., and when we do the question is whether there is a compelling state interest in protecting traditional marriage. And he says there is. States have an interest in promoting "procreative unions" that serve to keep society going. He argues you only have to look at the declining populations of industrialized European countries to see that this is a state interest. And, he points out, the California Supreme Court just didn't address this issue.
What?
So the guy is in effect arguing that denying citizens their constitutionally mandated equal protection under the law is justified because it will somehow lead to gay people making more babies? Hello? Gay people aren't going to make more babies than they already do under any defintion of marriage. So your point is...?
Perhaps the California Supreme Court didn't address this issue because it's freakin' absurd. In the end, there is no good argument for denying people their constitutional rights. The "it's tradition" argument doesn't work. The "procreative" argument doesn't work. People say what about polygamy? That's slippery slope objection, and the law deals with slippery slopes all the time.
The move now seems to be to cry something about unelected judges overruling the will of the majority. Sadly, most Americans don't realize that the Bill of Rights is by nature anti-majoritarian and was always meant to be so. That's kind of its point.
Posted by: s | May 21, 2008 9:23 AM